Coffee Cake Recipe

Case No.
14-0798
___________________________________________________
IN THE SUPREME COURT OF TEXAS
___________________________________________________
Stephanie Townsend Allala, Petitioner
v.
City of El Paso, Texas and Attorney General of Texas, Respondents
___________________________________________________
On Petition for Review from the Third District Court of Appeals,
Case No. 03-13-00820-CV
___________________________________________________
Texas Civil Rights Projects Amicus Brief on the Merits
(Hyperlinked)
___________________________________________________
HIREN P. PATEL
Texas Bar No. 24056098
hpatel@patelervin.com
PATEL ERVIN DINN PLLC
1113 Vine Street, Suite 230
Houston, Texas 77002
(713) 579-9700 (Telephone)
(832) 460-6530 (Facsimile)
Counsel for Amicus Curiae
Texas Civil Rights Project
Table of Contents
Table of Contents ................................................... i
Identity of Parties and Counsel .............................. iii
Interest of Amicus Curiae....................................... iv
Index of Authorities ............................................... v
Appendix .............................................................. viii
Introduction .......................................................... 1
Summary of Argument: Five More Reasons for the Court to
Review and Reverse ................................................. 3
Argument ............................................................... 6
1. The Austin Courts holding means that the legislature
utterly failed to achieve its goal of defending the TPIA from
modern technology. ............................................................... 9
2. The Austin Courts holding conflicts with the TPIAs
express requirement that governmental bodies exercise their
rights to obtain and produce public information........................ 14
3. The Austin Courts holding combined with the TPIAs
procedures all but ensures that governmental bodies
statewide can hide public information in private accounts. .........19
4. The second part of the Austin Courts opinion conflicts with
this Courts recent decision in Kallinen v. City of Houston. ....... 23
5. The Austin Courts decision did not turn on a pleading
deficiency. .......................................................................... 25
Conclusion ........................................................... 30
Prayer for Relief ...................................................31
-i-
Certificate of Compliance ..................................... 32

Certificate of Service ........................................... 32
- ii -
Identity of Parties and Counsel

Petitioner:
Stephanie Townsend Allala
Counsel for Petitioners:
Bill Aleshire
Aleshire Law PC
700 Lavaca, Suite 1400
Austin, Texas 78701
Respondent:
City of El Paso, Texas
Counsel for Respondent

City of El Paso, Texas:
George E. Hyde
Scott M. Tschirhart
Denton, Navarro, Rocha & Bernal
2500 W. William Cannon Drive
Suite 609
Austin, Texas 78745
Respondent:
Attorney General of Texas
Counsel for Respondent

Attorney General of Texas:
Kimberly L. Fuchs
Chief, Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capital Station
Austin, Texas 78711-2548
- iii -
Interest of Amicus Curiae

The Texas Civil Rights Project (TCRP) promotes racial, social, and
economic justice through litigation, education, and social services for those
least able to defend themselves for financial or other reasons. Founded in
1990 in South Texas, TCRP has grown into a statewide organization with
offices in Austin, Houston, South Texas, El Paso, and Midland/Odessa.
TCRPs Board of Directors includes a former Chair of the Board of
Directors of the State Bar of Texas, a member of this Courts Grievance
Oversight Committee, and the Vice-Chair of the Local Bar Services
Committee to the State Bar of Texas.
Because much of TCRPs work focuses on government action or
inaction, TCRP relies on the Texas Public Information Act to obtain
information essential to TCRPs litigation and education efforts. TCRPs
leaders, staff, and volunteers including the hundreds of private attorneys
who have handled pro bono matters through TCRP are working to ensure
that the government remains the servant and not the master of the people,
of Texas, regardless of racial, social, or economic status.
Neither TCRP nor its counsel received or will receive any
compensation or fees in connection with this brief.
- iv -
Index of Authorities
Cases
City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.Austin 2014)...... passim
City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.Houston [1st
Dist.] 2013) .............................................................................................. 23
City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003).............. 13, 19
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002) ............................ 28
Doctors Hospital Facilities v. Fifth Court of Appeals, 750 S.W.2d 177
(Tex. 1988) .............................................................................................. 17
GTE Communications Systems Corp. v. Tanner, 856 S.W.2d 725 (Tex.
1993).................................................................................................. 16, 18
In re Caballero, 272 S.W.3d 595 (Tex. 2008)............................................ 13, 19
In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001) .....................................24
Kallinen v. City of Houston, Case No. 14-0015, 2015 WL 1275385 (Tex.
March 20, 2015) .......................................................................... 24, 25, 26
Mower v. Boyer, 811 S.W.2d 560 (Tex. 1991) ................................................ 20
Tex. Dept of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..... 28
Tex. Dept Pub. Safety v. Cox. Tex. Newspapers L.P., 343 S.W.3d 112
(Tex. 2011) .............................................................................................. 24
Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) ......................................... 28
Statutes
Tex. Govt Code 552.001(a) ................................................... 1, 2, 3, 18
Tex. Govt Code 552.002(a)(2)(B) .................................................... 15
-v-
Tex. Govt Code 552.002(a-2) .......................................................... 11

Tex. Govt Code 552.021 .................................................................. 15
Tex. Govt Code 552.321(a) .............................................................. 12
Tex. Govt Code 552.324(a) .............................................................. 19
Tex. Govt Code 552.325(a) ........................................................ 19, 20
Tex. Loc. Govt Code 201.006(a).................................................... 16
Rules
Tex. R. Civ. P. 192.7(b) .......................................................................... 15
Other Authorities
Interim Report to the 83rd Legislature (last accessed on May 11, 2015
from:
http://www.senate.state.tx.us/75r/senate/commit/c585/pdf/c585.I
nterimReport82.pdf ) .......................................................................... 10, 11
Public Information Handbook 2014 (Texas Attorney General), (last
accessed on May 11, 2015 from:
https://www.texasattorneygeneral.gov/files/og/publicinfo_hb.pdf ) .. 11, 12
Texas Declaration of Independence (obtained from the University of
Houston at
www.digitalhistory.uh.edu/active_learning/explorations/alamo/Tex
as_Declaration.pdf ) .................................................................................. 7
Other
Age Requirements on Google Accounts, Google Support Website,
https://support.google.com/accounts/answer/1350409?hl=en (last
accessed May 11, 2015) ............................................................................. 2
- vi -
Austin Independent School District: Inequitable Funding and

Vestiges of Segregation, Human Rights Report, Texas Civil Rights
Project, September 2012 ...................................................................... 7, 22
Democracy in Texas? Texas Faulty Voter Registration Procedures,
Human Rights Report, Texas Civil Rights Project, December 2013 ..... 7, 22
DOJ Closes Police Inquiry, The Austin Chronicle, June 3, 2011 ......... 8, 22
Should Texas death row inmates have more privileges? Corrections
One News, January 30, 2014 ................................................................ 8, 22
- vii -
Appendix
Tab
DESCRIPTION
City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.

Austin 2014)
City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.

Houston [1st Dist.] 2013)
City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex.

2003)
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002)
Doctors Hospital Facilities v. Fifth Court of Appeals, 750

S.W.2d 177 (Tex. 1988)
GTE Communications Systems Corp. v. Tanner, 856 S.W.2d

725 (Tex. 1993)
In re Caballero, 272 S.W.3d 595 (Tex. 2008)
In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001)
Kallinen v. City of Houston, Case No. 14-0015, 2015 WL

1275385 (Tex. March 20, 2015)
10
Mower v. Boyer, 811 S.W.2d 560 (Tex. 1991)
11
Tex. Dept of Parks and Wildlife v. Miranda, 133 S.W.3d 217

(Tex. 2004)
12
Tex. Dept Pub. Safety v. Cox. Tex. Newspapers L.P., 343

S.W.3d 112 (Tex. 2011)
13
Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007)
14
Tex. Govt Code 552.001
- viii -
Tab
DESCRIPTION
15
16
17
18
19
20
Tex. Loc. Govt Code 201.006
21
Tex. R. Civ. P. 192.7
22
Interim Report to the 83rd Legislature
23
Public Information Handbook 2014 (Texas Attorney

General)
24
Texas Declaration of Independence
25
Age Requirements on Google Accounts, Google Support

Website
26
Austin Independent School District: Inequitable Funding

and Vestiges of Segregation, Human Rights Report, Texas
Civil Rights Project, September 2012
27
Democracy in Texas? Texas Faulty Voter Registration

Procedures, Human Rights Report, Texas Civil Rights
Project, December 2013
28
DOJ Closes Police Inquiry, The Austin Chronicle, June

3, 2011
29
Should Texas death row inmates have more privileges?

Corrections One News, January 30, 2014
- ix -
Introduction
The Texas Public Information Acts policy statement reveals a bonedeep desire to uphold the fundamental philosophy of the American
constitutional form that the government is not the master of the people. 1
To further this fundamental philosophy, the legislature told the public
that the TPIA advances the notion that the people 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. 2
But the Austin Court of Appeals in this case has created a backdoor
that public servants can use to get around the TPIA and to conceal
communications about public business from disclosure. Thus, practically
speaking, the Austin Courts holding allows public servants to decide what
is good for the people to know and what is not good for them to know. 3 The
key to this backdoor?
Gmail.
Tex. Govt Code 552.001(a).
Id.
Id.
-1-
More precisely, under the Austin Courts reading of the TPIA, public
officials and employees can hide emails containing public information
simply by using a free web-based email service, such as Gmail, Yahoo Mail,
Outlook.com, or scores of others. Google allows anyone as young as 13 to use
Gmail. 4 So in effect, the Austin Court has construed the TPIA as so
ineffective in todays world that it cannot overcome a free email service
children regularly use.
Before something as simple as creating a Gmail account can give a
public servant the right to decide what is good for the people to know, 5
this Court should take a closer look at the Austin Courts interpretation of
the TPIA.
On one hand, if the Austin Court misconstrued the TPIA and officials
cannot simply conceal public information by storing it in private accounts
then this Court should barricade the backdoor created by the Austin
Courts holding.
On the other hand, if the legislature drafted the TPIA so poorly that the
TPIAs basic purpose can be defeated by free web-based email, this
4
See Age Requirements on Google Accounts, Google Support Website,

https://support.google.com/accounts/answer/1350409?hl=en (last accessed May 11,
2015).
-2-
Courts review would result in a final interpretation to guide the

legislature in correcting the flawed and obviously unintended language.
Juxtaposing the fundamental importance of the TPIA against how
easily the Austin Court believes the TPIA can be beaten shows why every
member of the public who insist[s] on remaining informed 6 needs the
Court to review this case.
Summary of Argument:
Five More Reasons for the Court to Review and Reverse
Section 552.321(a) of the Government Code sets three jurisdictional
grounds for TPIA mandamus proceedings. Here, the Austin Court
construed the latter two.
First, the Austin Court held that El Paso did not refuse to supply
public information stored in the private email accounts of public officials.
El Paso asked its former officials to turn over public information stored in
their personal email accounts, but not all complied with El Pasos request.
The Austin Court reasoned that to refuse means to be unwilling, and
thus, by asking for public information stored in private accounts, El Paso was
not refusing to supply public information.
Id.
-3-
Second, the Austin Court determined that Section 552.321(a) did not
permit Petitioner the right to challenge El Pasos redaction of certain email
addresses because the Attorney General opined that those email addresses
fell within Section 552.137s exception to public disclosure. Thus, under the
Austin Courts holding, the TPIA does not give the public a judicial forum to
question the Attorney Generals TPIA decisions.
Petitioner has addressed many of the substantive issues of statutory
interpretation presented by both parts of the Austin Courts opinion. TCRP
does not repeat Petitioners arguments here except to establish context.
Instead, TCRP asks the Court to grant the petition for review and reverse
the Austin Courts first holding about public information stored in private
email for the following three reasons.
The legislature has already spoken. In 2013, the legislature amended
the TPIA to embrace and codify the Attorney Generals prior decisions
directing governmental bodies to produce public information stored in
private accounts. If the Austin Courts opinion holds, then the legislature
achieved nothing. This Court should review the Austin Courts
interpretation before the legislature mistakenly believes that it failed to
accomplish what it set out to do in 2013.
The right of access provision in the TPIA must be given meaning.
The TPIAs definition of public information expressly includes
-4-
information to which a governmental body has a right of access. The

Austin Court did not recognize a governmental bodys obligation to
exercise its right of access when it held that El Paso satisfied its duty
simply by asking former public officials to produce public information
from their private email accounts. Merely asking is not enough; El Pasos
duty included exercising its rights to recover the relevant responsive
emails.
This is a case of last impression. Governmental bodies contesting an
Attorney Generals decision requiring disclosure of information may only
file suit in Travis County district court. By exploiting the TPIAs
procedures, governmental bodies that do not want to disclose public
information stored in private emails can ensure that their cases are bound
by the Austin Courts opinion here.
TCRP further asks the Court to grant the petition for review and
reverse the Austin Courts second holding about the right to seek judicial
review of the Attorney Generals TPIA decisions for the following two
reasons.
This Courts recent decision in Kallinen v. City of Houston conflicts
with the Austin Courts opinion. In Kallinen v. City of Houston, this
Court recently stated that the Attorney Generals TPIA decisions are not
beyond judicial review. Here, the Austin Court held that an Attorney
Generals decision in favor of the governmental body bars judicial review
for the public. But because the Courts Kallinen decision addressed the
-5-
opposite situation one where the appellate courts holding barred

judicial review before the Attorney General rendered a decision this
Court needs to review this case. Otherwise, the Courts clear
understanding of the TPIA as expressed in Kallinen might be stymied by
attempts to distinguish this case from Kallinen on the facts.
Respondents arguments about Petitioners pleading deficiencies do
not diminish the need for this Courts review. Respondents claim that
the Austin Court did not actually conclude that the Attorney Generals
TPIA decisions are beyond judicial review, but instead overruled
Petitioners cross-point because Petitioner did not plead an available
alternative jurisdictional basis for TPIA mandamus relief. But nothing in
the actual text of the Austin Courts opinion supports Respondents
position. If the Austin Courts actual intentions are not reflected in the
words used in the Austin Courts opinion, this Court should at least
vacate and remand. Absent this Courts review, either an incorrect
interpretation of the TPIA has become binding law in the Third District
or binding law in the Third District has been created unintentionally.
Argument
The concept of an open government is older than Texas itself. The
Texas Declaration of Independence affirmed the axiom in political science,
that unless the people are educated and enlightened, it is idle to expect the
-6-
continuance of civil liberty, or the capacity for self-government. 7 The TPIA

provides the means to achieve this old, enduring view of democracy as
dependent on government transparency.
TCRP, similar public interest organizations, watchdog groups, and
news reporters are among those who work every day to advance the
fundamental principle underlying the TPIA. The work of these organizations
depends on expedient access to government records. For example, using
public records requests, TCRP has:
identified systemic inequities in the funding of schools within the Austin
Independent School District;8
exposed widespread problems with voter registration procedures that
effectively denied many citizens their right to vote in the 2012 election; 9
Texas Declaration of Independence, 11 (obtained from the University of Houston at

www.digitalhistory.uh.edu/active_learning/explorations/alamo/Texas_Declaration.pdf).
8
See Austin Independent School District: Inequitable Funding and Vestiges of

Segregation, Human Rights Report, Texas Civil Rights Project, September 2012.
9
See Democracy in Texas? Texas Faulty Voter Registration Procedures, Human

Rights Report, Texas Civil Rights Project, December 2013.
-7-
found evidentiary support for its policy advocacy regarding the

inappropriate use of solitary confinement; 10 and
caused the United States Department of Justice to open an investigation
of the Austin Police Department regarding excessive use of force,
resulting in 160 recommendations to improve the departments policies
and procedures.11
But under the Austin Courts opinion, governmental bodies, officials,
and employees can easily shield from disclosure public information they
would rather not share. All they need to do is store or communicate that
information through non-government email, instant message, or cloud
storage applications. Today, using just a smartphone (no cost with a 2-year
contract), one can communicate and store information using an ever-growing
list of free or low-cost services, including Gmail, Yahoo Mail, Outlook.com,
iCloud, SMS, MMS, Whats App, Twitter Direct Message, Skype, Dropbox,
Box.com, OneDrive, and hundreds more.
10
See Should Texas death row inmates have more privileges? Corrections One News,
January 30, 2014.
11
DOJ Closes Police Inquiry, The Austin Chronicle, June 3, 2011, p. 1.
-8-
Left untouched, the Austin Courts opinion would drastically

diminish the ability of the public either directly or through public interest
organizations like TCRP to monitor government conduct. After all, it is no
secret that TCRP, community interest groups, and the media often seek
information that might expose negligent or intentionally wrongful
government action the very information that certain members of the
government might be loath to share. Now, under the Austin Courts holding,
government officials and employees can make sure the public only sees what
they want the public to see just by using one or more of the ever-growing
number of easy-to-use communications and storage applications.
Unless this Court corrects the Austin Courts decision, the TPIA
which has been a powerful tool to ensure government transparency and
accountability will be rendered helpless by web applications teenagers
regularly use. For the following reasons, the Court should grant the petition
for review and reverse the Austin Courts opinion and judgment.
1.
The Austin Courts holding means that the legislature utterly

failed to achieve its goal of defending the TPIA from modern
technology.
The Texas Senates Committee on Open Government prepared a
December 2012 Interim Report to the 83rd Legislature addressing, among
-9-
other topics, the use of new technologies and future technological advances
as relates to the creation of public information. 12 The Interim Report
adopted the following viewpoints:
Since the Public Information Act was originally enacted in 1973 and
codified in the Government Code, there have been vast changes to the
way business is conducted.13
The advances in technology over the last few decades have added
additional venues and ease to governing, but they have also added a layer
of complexity to interpreting the Public Information Act.14
Several Attorney General decisions address the issue of new technology
and public business being conducted on private accounts.15
A governmental body may not circumvent the applicability of the Act by
conducting official public business in a private medium.16
Codifying existing Attorney General Opinions relating to the use of
technology and private emails accounts for public business will provide
12
Interim Report to the 83rd Legislature, p. 1 (last accessed on May 11, 2015 from:
http://www.senate.state.tx.us/75r/senate/commit/c585/pdf/c585.InterimReport82.pdf).
13
Id. at p. 5.
14
Id.
15
Id.
16
Id.
- 10 -
clarity and guidance in the Public Information Act, which will hopefully
reduce costs to the state for litigating and interpreting issues with the
statute. 17
Consistent with the Interim Reports recommendations, the 83rd
Legislature amended the TPIAs definition of public information to
include any electronic communication created, transmitted, received, or
maintained on any device if the communication is in connection with the
transaction of official business. 18 The Attorney Generals 2014 TPIA
Handbook explains that, as amended, the TPIA does not distinguish
between personal or employer-issued devices, but rather focuses on the
nature of the communication or document. 19
The plain meaning of the recent TPIA amendments coupled with the
Open Government Committees Interim Report confirms the Attorney
Generals understanding that the legislature adopted the Attorney Generals
long-standing interpretation that public information now takes into
17
Id. at p. 7.
18
Tex. Govt Code 552.002(a-2).
19
Public Information Handbook 2014 (Texas Attorney General), p. 18 (last accessed on

May 11, 2015 from: https://www.texasattorneygeneral.gov/files/og/publicinfo_hb.pdf).
- 11 -
account the use of electronic devices and cellular phones by public

employees and officials in the transaction of official business. 20
But while updating the TPIA to codify the Attorney Generals prior
decisions on the use of private accounts for public business, the legislature
did not amend the jurisdictional grounds for TPIA mandamus actions found
in Section 552.321(a). The Open Government Committees Interim Report
does not address how a governmental body might go about collecting public
information from private accounts. And the report offers no insight on the
proper definition and application of refuses in the context of a
governmental bodys duty to obtain public information stored in private
accounts.21
The Austin Courts holding here tacitly views the legislatures
decision not to amend Section 552.321(a) as an unfortunate oversight, a lack
of diligence with the regrettable effect of rendering the amendments
to Section 552.002 more academic than practical. Conversely, Petitioners
construction of the TPIA sees the legislatures decision not to
amend Section 552.321(a) as an affirmation that the TPIAs pre-existing
20
Id.
21
- 12 -
enforcement mechanisms sufficed to give practical meaning to the

amendments to Section 552.002.
TCRP agrees with Petitioners interpretation. Reading the TPIA as a
whole as this Court requires 22 governmental bodies refuse to supply
public information stored on private accounts if they refuse to use all the
tools available to them to collect responsive public information.
The legislature has already spoken: public information stored on
private accounts are not beyond the reach of the TPIA. But if the Austin
Courts opinion is correct, then the legislature did not speak loudly enough
when it made no change to the TPIAs enforcement mechanisms. Public
information responsive to Petitioners request will never be produced
because public officials used private email to conduct public business and
then simply declined El Pasos request to produce the public information in
their possession. 23
But as Petitioner explains and TCRP addresses below, no further
legislative action was necessary in 2013 for the legislature to accomplish its
22
In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008) (reaffirming rule that courts must give
effect to all words in a statute without treating any statutory language as mere surplusage);
City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003).
23
City of El Paso v. Abbott, 444 S.W.3d 315, 319 (Tex. App.Austin 2014).
- 13 -
goals: the TPIAs enforcement mechanisms were already good enough. The
Court should thus reverse the Austin Courts holding. And even if the Court
were to agree with the Austin Courts interpretation, the Court should at
least grant review of this case to issue a final interpretive decision to guide
the legislature on fixing the unintended backdoor around the TPIA the
Austin Court believes to exist.
2.
The Austin Courts holding conflicts with the TPIAs express

requirement that governmental bodies exercise their rights to
obtain and produce public information.
Under the Austin Courts construction of Section 552.321(a), a
governmental body cannot be deemed to have refused to supply public

information stored on private accounts as long as the governmental body
asks the custodians to produce the requested information. 24 Some custodians
may agree; others may not. Whatever the result, the public requestor would
have no recourse. 25 And like Petitioner here, the public requestor would also
be denied discovery to determine if and to what extent undisclosed public
information continued to be stored in private accounts. 26
24
See id. at 324-25.
25
See id. at 325.
26
Id.
- 14 -
But this interpretation of the TPIA conflicts with one part of the
definition of public information present in Section 552.002 both before
and after the legislatures 2013 amendments. The TPIA expressly extends
the scope of public information to information subject to a governmental
bodys right of access. 27 Because the TPIA requires a governmental body
to make available all requested public information 28 subject to the
TPIAs stated exceptions the TPIA necessarily requires a governmental
body to produce information within its right of access. 29
The concept resembles that of possession, custody, or control in a
typical litigation discovery context. 30 Subject to certain exceptions set forth
in the Rules of Civil Procedure, litigants must produce discoverable
information within their possession, custody, or control.31 This Court
in GTE Communications Systems Corp. v. Tanner held that the scope of
27
Tex. Govt Code 552.002(a)(2)(B).
28
Tex. Govt Code 552.021.
29
Tex. Govt Code 552.002(a)(2)(B).
30
See Tex. R. Civ. P. 192.7(b).
31
Id.
- 15 -
control for purposes of discovery includes information a litigant has a

right to obtain or a right to compel from a third party. 32
Likewise, to give meaning and effect to the right of access language
in Section 552.002, it cannot be enough for a governmental body to simply
ask for responsive public information without exercising the governmental
bodys rights to access that information. Petitioner explains the various
means El Paso had to exercise its rights to obtain public information stored in
the private email accounts of former officials. 33 The former officials in this
case had a ministerial duty to turn over the public information in their
private accounts to their successors in city government:
A custodian of local government records shall, at the
expiration of the custodians term of office, appointment,
or employment, deliver to the custodians successor, if
there is one, all local government records in custody. If
there is no successor, the governing body shall determine
which officer of the local government shall have
custody. 34
32
GTE Communications Systems Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).
33
Pet. Br., pp. 12-20; Pet. Reply Br., pp. 6-8.
34
Tex. Loc. Govt Code 201.006(a).
- 16 -
This Court has held that an ordinary writ of mandamus requires a legal
duty to perform a nondiscretionary act, a demand for performance, and a
refusal. 35 Here, El Paso took several steps to obtain public information in
private accounts,36 but did not seek to compel through a writ of mandamus
public information from the private account of former city councilman Steve
Ortega, who had informed El Paso that he would not be turning over any of
[his] private emails. 37
El Paso justifies its position by assuming that the TPIA itself must
expressly confer the power to compel former employees and officials to turn
over public information stored in private accounts. 38 But El Paso cannot
identify any language in the TPIA supporting the assumption that the TPIA
is a self-contained statute living in a vacuum, separated from all other laws.
For several reasons, the Court should not accept El Pasos unsupported
assumption about the level of interaction permitted between the TPIA and
the Local Government Records Act or other statutes.
35
Doctors Hospital Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178 (Tex. 1988).
36
City of El Paso, 444 S.W.3d at 322-23.
37
Id. at 319.
38
El Paso Br., pp. 10-13.
- 17 -
Accepting El Pasos assumption would amount to reading language into

the TPIA that simply does not exist.
As Petitioner has explained, the Local Government Records Act gives El
Paso the right of access to public information stored on former
officials private accounts. 39 El Pasos assumption that other laws must be
ignored in TPIA cases, if accepted, would allow current and even former
public officials the power to decide what the public gets to know. This
would directly conflict with the legislatures express TPIA policy
statement. 40
In the analogous situation of the obligation to produce information in a
litigants possession, custody, or control under the rules of procedure,
this Court in GTE Communications clarified that the scope of the duty is
based on the relationship between the party from whom a document is
sought and the person who has actual possession of it.41 The rules of
procedure, thus, interact with other laws governing the relationship
between the parties in question. The Court should not read the TPIA any
differently.
By holding that El Pasos refusal to exercise its rights to obtain the
public information requested did not constitute a refusal to supply public
39
Pet. Br., pp. 12-20; Pet. Reply Br., pp. 6-8.
40
41
GTE Communications, 856 S.W.2d at 729.
- 18 -
information, the Austin Courts interpretation of Section 552.321(a)

conflicts with the right of access language from Section 552.002. Because
this Court requires statutes to be read as a whole to prevent any statutory
language from being rendered superfluous,42 the Court should reject the
Austin Courts construction of Section 552.321(a). Petitioners
interpretation gives full meaning to the right of access language.
3.
The Austin Courts holding combined with the TPIAs

procedures all but ensures that governmental bodies statewide can
hide public information in private accounts.
When a governmental body wants to challenge an Attorney General
decision compelling public disclosure, the governmental body must file suit
in Travis County. 43 Thus, anytime a governmental body initiates a suit, the
Austin Courts interpretation of Section 552.321(a) as it pertains to public
information stored in private accounts will be binding.
In most contexts, this Court might consider waiting for other appellate
courts to address the same issue of statutory interpretation to see if
consensus emerges or not. But the mandatory Travis County venue for
42
In re Caballero, 272 S.W.3d at 599; Boerne, 111 S.W.3d at 29.
43
Tex. Govt Code 552.324(a); Tex. Govt Code 552.325(a).
- 19 -
TPIA suits initiated by governmental bodies creates a unique situation that

practically makes the Austin Courts holding the law statewide.
Even though the public requestor, and in some cases the Attorney
General, can initiate TPIA suits in other counties, the governmental body
can win the race to the courthouse in most cases.
Most public requestors would not be willing to incur the costs of litigation
before knowing the Attorneys Generals decision and if the
governmental body intends to comply. But by then, the governmental
body would have had ample time to file suit in Travis County and would
thus be relieved of the obligation to produce public information within its
right of access if it happens to exist in private email and data accounts.
If the requestor intervenes in the governmental bodys suit, as Petitioner
did here, 44 the venue remains the same, and the Austin Courts holding
still binds.
If the requestor chooses to file a mandamus suit in the governmental
bodys county while the governmental bodys suit is already pending in
Travis County, the requestors suit would be subject to abatement or
dismissal.45 Again, the Austin Courts holding will bind the district court
44
45
Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex. 1991) (As a general rule, the court in
which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate
courts, and any subsequent suit involving the same parties and the same controversy must
- 20 -
that has the first opportunity to decide if the governmental body has done
enough to obtain public information stored in private accounts.
In this procedural context, the Austin Courts holding in this case can
be used by any governmental body that wants to avoid doing more than just
asking its officials and employees to turn over public information stored in
their private accounts. Perhaps in the majority of cases, governmental bodies
would exercise their rights to obtain information from private accounts
instead of just asking, or perhaps the public officials and employees affected
would willingly turn over all requested public information.
But in those situations where governmental bodies or public officials
and employees have the greatest incentive conceal information, the Austin
Courts holding creates the backdoor to get around the TPIAs enforcement
mechanisms and avoid public disclosure. And in these situations where the
risk of public harm is highest, any governmental body statewide can ensure
that the Austin Courts holding here backdoor and all would bind the trial
court simply by asking for an Attorney General decision and then promptly
suing in Travis County when the Attorney General orders the disclosure of
be dismissed if a party to the subsequent suit calls the second courts attention to the
pendency of the prior suit by a plea in abatement.)
- 21 -
public information from private accounts, as the Attorney General has done
several times before.
TCRP knows firsthand what the impact to Texans might be. Evidence
of voting irregularities, 46 excessive use of force, 47 underfunded schools, 48 and
inhumane prison conditions49 could all be more easily concealed by officials
and employees using private Gmail, Whatsapp, or Dropbox accounts. Put
differently, the harm in the Austin Courts opinion is not just that it
incorrectly interprets the TPIA, but that its interpretation of the TPIA
creates a path for the most harmful cases of government misconduct and
abuse to be hidden from the public. The Court should thus accept review
and reverse the Austin Courts holding.
46
See Democracy in Texas? Texas Faulty Voter Registration Procedures, Human

Rights Report, Texas Civil Rights Project, December 2013.
47
DOJ Closes Police Inquiry, The Austin Chronicle, June 3, 2011, p. 1.
48
See Austin Independent School District: Inequitable Funding and Vestiges of

Segregation, Human Rights Report, Texas Civil Rights Project, September 2012.
49
See Should Texas death row inmates have more privileges? Corrections One News,
January 30, 2014.
- 22 -
4.
The second part of the Austin Courts opinion conflicts with this
Courts recent decision in Kallinen v. City of Houston.
In City of Houston v. Kallinen, 50 the First Court of Appeals held that
subject matter jurisdiction for a TPIA mandamus action does not arise until
after the completion of the Attorney General review process. 51 Here, in the
second part of its opinion, the Austin Court determined that the issuance of
an Attorney General decision in favor of the governmental body forecloses
subject matter jurisdiction for a TPIA mandamus suit. 52
Put differently, under the First Courts opinion, an Attorney General
decision is a prerequisite to judicial review; but according to the Austin
Court, an Attorney General decision siding with the governmental body bars
judicial review. A ruling by the Attorney General cannot both be a
prerequisite for and a bar to the publics right to seek mandamus under the
TPIA. Yet that is the result of reading the Austin Courts opinion here in
conjunction with the First Courts opinion in City of Houston.
50
City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.Houston [1st Dist.] 2013)
51
City of Houston, 414 S.W.3d at 818-19.
52
City of El Paso, 444 S.W.3d at 327.
- 23 -
This Court, however, recently issued a per curiam decision in Kallinen

v. City of Houston reversing the First Courts opinion. 53 The Court construed
the TPIA to permit mandamus actions alleging refusal to supply public
information no matter what the Attorney General happens to be doing. 54
In Kallinen, this Court even referenced Tex. Dept Pub. Safety v. Cox Tex.
Newspapers L.P. and In re City of Georgetown as examples of prior judicial
review of Attorney General decisions. 55 Thus, this Courts construction of
the TPIA conflicts with the Austin Courts holding here that an Attorney
General decision bars judicial review.
But even though the Austin Courts opinion conflicts directly with
this Courts Kallinen decision, the Court should still grant review. The
factual scenario in this case presents the mirror opposite situation compared
to Kallinen. The specific issue here pertains to jurisdiction for a TPIA
mandamus suit after an Attorney General decision, 56 while in Kallinen the
53
Kallinen v. City of Houston, Case No. 14-0015, 2015 WL 1275385, at *3 (Tex. March 20,
2015).
54
Id. at *2-3.
55
Id. at *2. See Tex. Dept Pub. Safety v. Cox. Tex. Newspapers L.P., 343 S.W.3d 112, 113
(Tex. 2011); In re City of Georgetown, 53 S.W.3d 328, 329-36 (Tex. 2001).
56
- 24 -
issue concerned a mandamus suit before the Attorney Generals ruling. 57

Thus, substantial room exists for litigants to try to distinguish Kallinen on
the facts in cases where a governmental body seeks dismissal of a TPIA
mandamus action on the basis it complied with the Attorney Generals
decision. Petitioners reply brief on the merits identifies a pending case
where one side has directly relied upon the Austin Courts opinion from this
case to support a position that cannot be reconciled with this Courts
construction of Section 552.321(a) in Kallinen. 58
By reviewing this case and reversing the Austin Courts opinion, this
Court can present a clear and consistent interpretation of the TPIAs three
independent jurisdictional grounds for mandamus actions.
5.
The Austin Courts decision did not turn on a pleading deficiency.

In preventing Petitioner from challenging the Attorney Generals
conclusion that the private email addresses Petitioner sought fell under an
exception to public disclosure, the Austin Court has placed the Attorney
General in an awkward position. On one hand, the Attorney General is cast
as a respondent here, even though the merits of the Attorney Generals
57
Kallinen, 2015 WL 1275385, at *1.
58
Pet. Reply Br., pp. 5-6.
- 25 -
decision are not before the Court. The Attorney General has an interest in
protecting his decision, which he no doubt believes to be correct on the
merits. Convincing this Court to deny the Petition would serve that purpose.
But on the other hand, the Attorney General concedes that the public
has the right to judicial review of the merits of his TPIA decisions. 59 Put
differently, a governmental bodys compliance does not insulate the
Attorney Generals ruling from judicial review. In Kallinen, this Court even
referenced the Attorney Generals amicus brief advising that he does not
claim exclusive jurisdiction to decide open records issues. 60 Thus, while
the Attorney General clearly disagrees with the Austin Courts basis for
overruling Petitioners cross-point, the Attorney General also has a stake in
protecting his particular view about the disclosure of private email addresses
used by public officials for public business. This Courts reversal of the
Austin Courts holding would subject the Attorney Generals specific
decision here to a challenge on its merits.
To solve his conundrum, the Attorney General asks this Court to
interpret the Austin Courts holding on Petitioners cross-point as a decision
59
Attorney General Br., pp. 5-6.
60
Kallinen, 2015 WL 1275385, at *2.
- 26 -
resulting from a pleading deficiency, not an incorrect construction of Section

552.321(a). 61 The Attorney General and El Paso both argue that Petitioner
did not plead a refusal to supply public information in her live pleading,
instead alleging only that El Paso refused to supply information that the
attorney general has determined is public information that is not excepted
from disclosure.62 Thus, as the Attorney General and El Paso contend, the
Austin Court did not bar judicial review of Attorney General decisions as a
rule, but only in cases where a mandamus petition fails to allege refusal to
supply public information as a basis for jurisdiction. 63 By advancing this
argument, the Attorney General can try to shield his specific decision in this
case from judicial review, without changing his position about the publics
right in general to challenge his TPIA decisions.
The Court should not deny the Petition on the basis of Respondents
interpretation of the Austin Courts opinion. As Petitioner notes, other
litigants have already used the Austin Courts holding as precedent to argue
for dismissal of mandamus actions challenging the merits of Attorney
61
Attorney General Br., pp. 2-5.
62
Id. at p. 3; El Paso Br., p. 5.
63
El Paso Br., pp. 5-6; Attorney General Br., pp. 2-5.
- 27 -
General TPIA decisions. 64 TCRP offers the following additional reasons for
the Court to reject Respondents attempt to recast the Austin Courts
holding.
Respondents position conflicts with the plain meaning of the Austin
Courts opinion. Not once in discussing Petitioners cross-point did the
Austin Court directly or indirectly reference or allude to the limited scope
of Petitioners live pleading. 65
The Austin Court chose not to express an opinion whether the email
addresses at issue fell within the scope of the TPIA only because the
attorney generals opinion directed [El Paso] to withhold the email
addresses.66 The Austin Court did not point to a pleading deficiency
as the reason for not providing an opinion about Petitioners right to
obtain the email addresses at issue under the TPIA.
Under this Courts prior decisions in Westbrook, Miranda, and Brown,
Petitioner should have been afforded the chance to amend her pleading to
cure the defect at issue. 67 But the Austin Court reversed and rendered
judgment, instead of reversing and remanding for further proceedings to
64
65
See City of El Paso, 444 S.W.3d at 327.
66
Id.
67
Westbrook v. Penley, 231 S.W.3d 389, 395 (Tex. 2007); Tex. Dept of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); County of Cameron v. Brown, 80 S.W.3d 549,
555 (Tex. 2002).
- 28 -
allow Petitioner to cure her pleading deficiency. 68 This Court should not
presume that the Austin Court merely forgot about Petitioners right to
amend her pleading under these circumstances.
Still, perhaps Respondents are correct that the Austin Court intended
its decision on Petitioners cross-point to be about a pleading deficiency and
not about the meaning of Section 552.321(a). That would certainly solve the
Attorney Generals dilemma here by shielding his specific decision in this
case from judicial review without infringing on the publics right, in general,
to challenge Attorney General TPIA decisions in court.
But it is hardly surprising that litigants with no stake in the outcome of
this case appear to understand the Austin Courts opinion just as it is
written. 69 After all, using plain and clear language, the Austin Court wrote
that because El Paso complied with the Attorney Generals directive to
withhold the email addresses at issue, no subject matter jurisdiction existed
for Petitioners mandamus action. 70 And by reversing and rendering, the
Austin Court went so far as to conclude that it would have been impossible
68
69
70
- 29 -
for Petitioner establish subject matter jurisdiction by correcting any pleading

deficiencies.
This Court should thus review this case. Even if the Court finds some
merit to the notion that Petitioners live pleading fails to establish subject
matter jurisdiction, the Court should at least vacate the Austin Courts
opinion and judgment and remand for further proceedings.
Conclusion
The legislature has plainly stated that the government should not be
able to decide what is good for the public to know. The Austin Court in this
case has robbed the TPIA of its power to achieve the legislatures stated
goals. Governmental bodies, officials, and employees can now choose what
they want the public to know simply by using private accounts created
through one of many free or low-cost web-based email, messaging, and cloud
storage services.
But when the legislature two years ago tried to firm up the TPIAs
defenses against modern technology, it had good reason to leave Section
552.321(a) alone. Contrary to the Austin Courts reading, but consistent with
the right of access language in Section 552.002, a governmental body
refuses to supply public information if it refuses to exercise its rights to
- 30 -
recover public information stored in private accounts. Merely asking is not

enough. Or else, concealing public information from the public will be as
easy as creating a new Gmail account.
Prayer for Relief
For these reasons, TCRP as amicus curiae, asks the Court to grant the
Petition for Review and to reverse or vacate the judgment and opinion of the
Austin Court of Appeals in this case.
Respectfully submitted,
/s/ Hiren P. Patel
Hiren P. Patel
Texas Bar No. 24056098
1113 Vine Street, Suite 230
Houston, Texas 77002
Tel. (713) 579-9700
Fax. (832) 460-6530
Email. hpatel@patelervin.com
Counsel for Amicus Curiae
Texas Civil Rights Project
- 31 -
Certificate of Compliance
This amicus brief complies with Texas Rule of Appellate Procedure
9.4(i) because it contains 5,940 words as calculated by MS Word software and
excluding the parts of the brief exempted by the rule.
Signed this 12th day of May 2015.
/s/ Hiren P. Patel
Hiren P. Patel
Certificate of Service
The undersigned certifies that a copy of this brief was served on all
counsel of record via eService and via email on May 12, 2015.
Bill Aleshire
Aleshire Law PC
700 Lavaca, Suite 1400
Austin, Texas 78701
Counsel for Petitioner Stephanie Townsend Allala
George E. Hyde
Scott M. Tschirhart
Denton, Navarro, Rocha & Bernal
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745
Counsel for Respondent City of El Paso
Kimberly L. Fuchs
Chief, Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capital Station
Counsel for Respondent Attorney General of Texas
/s/ Hiren P. Patel
Hiren P. Patel
- 32 -
Appendix Certification
County of Harris
State of Texas
My name is Hiren Patel, my date of birth is September 18, 1979, and my

address is 1113 Vine Street, Suite 230, Houston, Texas 77002. I declare under
penalty of perjury that the following statements are true and correct.
I am counsel for Amicus Curiae Texas Civil Rights Project. The documents
attached in the Appendix to the Texas Civil Rights Projects Amicus Brief on the
Merits are true and correct copies of the referenced legal or other authorities or are
true and correct copies of the originals.
FURTHER AFFIANT SAYETH NAUGHT.
Executed on the 12th day of May 2015.
Hiren P. Patel
City of El Paso v. Abbott, 444 S.W.3d 315 (2014)
444 S.W.3d 315

Court of Appeals of Texas,
Austin.
CITY OF EL PASO, Texas, Appellant
v.
Greg ABBOTT, Attorney General of Texas
and Stephanie Townsend Allala, Appellees.
No. 031300820CV.
Aug. 29, 2014.
Synopsis
Background: City brought declaratory judgment action
seeking relief from compliance with attorney general decision
ordering city to disclose information requested under the
Public Information Act (PIA). Records requestor intervened,
seeking writ of mandamus to compel disclosure of the
information. After city decided to comply with attorney
general decision, city filed plea to the jurisdiction to dismiss
action. The District Court, Travis County, Orlinda Naranjo,
J., denied plea. City appealed.
[Holding:] The Court of Appeals, Jeff Rose, J., held that

city did not refuse to supply information that attorney general
determined was public information, as could result in waiver
of sovereign immunity.
We withdraw our opinion and judgment of August 1, 2014,

and substitute the following opinion and judgment in their
place.
In this interlocutory appeal, appellant the City of El Paso
challenges the district court's denial of the City's plea
to the jurisdiction in a case brought under the Texas
Public Information Act (PIA). 1 The City filed the suit
seeking declaratory relief from compliance with an attorney
general decision ordering the City to disclose certain
information requested by appellee Stephanie Townsend
Allala. See Tex. Gov't Code 552.324 (authorizing suit
against attorney general by governmental body that seeks
to withhold information ordered disclosed by the attorney
general pursuant to PIA). Allala intervened, seeking a writ
of mandamus to compel the disclosure of the responsive
documents. See id. 552.321 (waiving sovereign immunity
for requestor seeking mandamus to compel disclosure).
During the pendency of its suit, however, the City decided
to comply in full with the attorney general's decision
and produced to Allala the responsive information in its
possession. It then filed a plea to the jurisdiction to dismiss
Allala's claim, arguing that it had complied with Allala's
request in full. The Attorney General did not oppose the City's
plea, but Allala did, and after two hearings on the issue, the
district court denied the City's plea to the jurisdiction. For the
reasons explained in detail below, we will reverse the district
court's order denying the City's plea, render judgment that the
district court lacks jurisdiction, and dismiss Allala's claim for
mandamus relief.
Reversed and rendered; rehearing denied.
Attorneys and Law Firms

*317 George E. Hyde, Lowell F. Denton, Scott M.
Tschirhart, for Appellant.
Kimberly L. Fuchs, for Appellees.
Bill Aleshire, for Stephanie Townsend Allala.
Before Chief Justice JONES, Justices PEMBERTON and
ROSE.
OPINION
JEFF ROSE, Justice.
Background
In September and October 2012, Allala made two publicinformation requests to the City of El Paso for various
communications regarding public business of the City
between the mayor, council representatives, *318 the city
manager, or some combination thereof, including any publicbusiness communications that may have been conducted on
the personal email accounts of these individuals. The City,
following the procedures set forth in the PIA, see id.
552.301.309, asked the attorney general to issue advisory
opinions regarding Allala's request, including whether the
private emails responsive to Allala's requests were public
information and, if so, whether those emails were excepted
from disclosure under the PIA. The City argued in its requests
that any responsive emails held on individuals' private email
accounts cannot be considered public information under
2015 Thomson Reuters. No claim to original U.S. Government Works.
Appendix 1
the PIA's then-current definition of that term because the

emails were not in the City's possession and were inaccessible
to the City. 2 In one opinion addressing both requests, the
attorney general reasoned, in relevant part, that because the
private emails requested by Allala relate[ ] to the official
business of a governmental body and [are] maintained by
a public official or employee of the governmental body,
the emails are within the scope of the PIA. See Tex. Att'y
Gen. OR201219216. The location of public information, the
attorney general explained, does not affect its status as public
information. See id. The attorney general determined further
that the requested emails were not subject to any exceptions
to disclosure asserted by the City and, accordingly, informed
the City that it must release the withheld information. See id.
In response to the attorney general's decision, the City filed
suit in Travis County seeking declarations that private emails
are not public information under the PIA, private emails
are excepted from disclosure under the PIA, the City has
compelling reasons to keep the documents at issue except [ed]
from public disclosure, and the City is not required to release
private emails. See Tex. Gov't Code 552.324 (authorizing
declaratory-judgment action against attorney general for
relief from compliance with a decision ordering it to disclose
certain information). Specifically, the City argued that the
personal papers, emails, and effects of local-government
officials and employees that are held independently from the
governmental body are not subject to open records searches
and do not meet the statutory definition of public information,
thus the information is inaccessible to the City and not subject
to the PIA. The attorney general filed an answer opposing
the City's arguments, and Allala intervened in the case,
seeking an order of mandamus against the City to disclose
all of the public information that she had requested. See id.
552.321 (authorizing mandamus action by requestor where
the governmental body refuses to supply public information
or information that the attorney general has determined is
public information that is not excepted from disclosure).
During the pendency of the City's declaratory-judgment
action, the legislature amended the PIA's definition of public
information to codify, the parties contend, the attorney
general's long-held position that public information includes
documents or other items created by an individual officer
or employee of a governmental body in the officer's or
employee's official capacity and the information pertains to
official business of the governmental body, regardless of
where that information is located. See Act of May 24, 2013,
83d Leg., R.S., ch. 1204, 1, sec. 552.002, 2013 Tex. Gen.
Laws 3011, 301112 (codified *319 at Tex. Gov't Code

552.002). 3 According to the City, certain other matters
affecting the City's efforts to withhold certain of the requested
information had ceased to exist during the pendency of its PIA
suit. Accordingly, the City decided to withdraw its challenge
to the attorney general's decision and, on September 16, 2013,
released to Allala all remaining responsive documents that
were in its possession.
After releasing the documents, the City filed a plea to
the jurisdiction, arguing that its release of the requested
documents in its possession had mooted all claims, thus
depriving the district court of jurisdiction, and that its case
should be dismissed accordingly. In support of its plea to the
jurisdiction, the City attached the affidavit of its city manager,
Joyce Wilson, who testified that after conducting a diligent
search for information, the City had gathered and turned
over all [responsive] information accessible to the city or
within the city's control, including information voluntarily
disclosed by current and former city officials in response to
Wilson's request for such information.
The attorney general did not oppose the City's plea. Allala,
however, filed a response to the City's plea objecting to
Wilson's affidavit and requesting a continuance to allow
Allala to conduct discovery related to both the City's plea
and to the merits of Allala's mandamus request. Specifically,
Allala argued that before dismissing her petition as moot
based solely on the City's assertion that it has provided all
the information in its possession, she should be allowed to
depose certain of the individuals identified in her information
request to determine whether those named individuals have
records responsive to her requesti.e., emails relating to
public business located on private email accountsthat were
not provided to the City or disclosed pursuant to the attorney
general's decision. Allala pointed out, supported by her
own affidavit, that the City had failed to produce certain
attachments for the emails that it had produced and that,
as shown by the City's responses to requests for admission,
the City had redacted personal email addresses from certain
emails. Allala also attached an email, provided to Allala by
the City, from city councilman Steve Ortega to Wilson, in
which Ortega stated that he would not be turning over any of
[his] private emails. Finally, Allala asserted that, regardless,
the City's evidence in support of its plea to the jurisdiction
was not sufficient to prove mootness as a matter of law.
At the first hearing on the City's plea to the jurisdiction,
the district court sustained Allala's objection to Wilson's
Appendix 1
affidavit, 4 but decided to postpone a decision on the City's

plea to allow Allala time to conduct limited discovery.
A few weeks later, the City filed a supplemental plea to
the jurisdiction, which in addition to addressing Allala's
contentions regarding missing attachments, included three
affidavits detailing the City's efforts in response to Allala's
request for information and asserting that all responsive
information possessed by or accessible to the City had
been produced to Allala. At the second hearing on the
City's plea, the parties resolved the issue relating to the
missing email attachments, but Allala maintained her position
regarding the redacted email addresses and the need for
additional discovery to determine whether any responsive
*320 information existed outside the physical possession
of the City. Allala did not offer any additional evidence
to support her opposition to the City's plea. Counsel for
former city council member Steve Ortega argued at the
hearing that his client had since decided to produce responsive
information and purported to offer an affidavit attesting to
that decision, but that affidavit does not appear in the record
before this Court. After taking the matter under advisement,
the district court denied the City's plea to the jurisdiction,
allowing Allala's claim for relief to proceed. It is from this
interlocutory order that the City now appeals.
to the jurisdiction includes evidence, the trial court reviews

the relevant evidence to determine if a fact issue exists. See
Miranda, 133 S.W.3d at 228. 5 If the evidence creates a
fact question regarding the jurisdictional issue, then the trial
court cannot grant the plea to the jurisdiction, and the fact
issue is resolved by the fact finder at trial. Id. at 22728. If
the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on
the plea to the jurisdiction as a matter of law. Id. The trial
court's determination in such a case is a purely legal one
that we review de novo, indulging every reasonable inference
and resolving any doubts in the plaintiff's favor. Id. at 228;
Poindexter, 306 S.W.3d at 807.
Resolution of jurisdictional questions frequently entails, as

it does here, construction of statutes, which itself presents a
question of law. See Texas W. Oaks Hosp., LP v. Williams,
371 S.W.3d 171, 177 (Tex.2012). When construing a statute,
our primary objective is to ascertain and give effect to the
legislature's intent. TGSNOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 439 (Tex.2011). To discern that intent,
we begin with the statute's words. Id. Where text is clear,
text is determinative of that intent. Entergy Gulf States,
Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). The
words cannot be examined in isolation, but must be informed
*321 by the context in which they are used. TGSNOPEC,
340 S.W.3d at 441. We rely on the plain meaning of the
Standard of review
words, unless a different meaning is supplied by legislative
definition or is apparent from context, or unless such a
[1] [2] [3] [4] [5] A plea to the jurisdiction challenges
construction leads to absurd results. See City of Rockwall v.
a trial court's authority to decide the subject matter of a
Hughes, 246 S.W.3d 621, 62526 (Tex.2008); see also Tex.
specific cause of action. See Texas Dep't of Parks & Wildlife
Gov't Code 311.011 (Words and phrases shall be read in
v. Miranda, 133 S.W.3d 217, 22526 (Tex.2004). Where,
context
and construed according to the rules of grammar and
as here, the plea to the jurisdiction challenges the existence
common usage, but [w]ords and phrases that have acquired
of jurisdictional factsi.e., whether the City refuses to
a technical or particular meaning, whether by legislative
supply public information or information that the attorney
definition or otherwise, shall be construed accordingly.).
general has determined is public information, Tex. Gov't
Code 552.321we consider evidence that the parties have
submitted when necessary to resolve the jurisdictional issues
raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555
(Tex.2000). In fact, in a plea to the jurisdiction, a party may
present evidence to negate the existence of a jurisdictional
fact alleged in the pleadings, which we would otherwise
presume to be true. See Miranda, 133 S.W.3d at 227. How we
review a trial court's explicit or implicit determination of such
a challenge depends on whether the jurisdictional fact being
challenged overlaps with the merits of the complainant's
claims. See University of Tex. v. Poindexter, 306 S.W.3d
798, 806 (Tex.App.-Austin 2009, no pet.). When, as here,
the jurisdictional facts do implicate the merits, and the plea
Discussion
The City challenges the district court's denial of its plea to the
jurisdiction in three issues: (1) whether the City's voluntary
production of all responsive information that it had access
to when Allala's request was made, including private emails
voluntarily turned over to the City in response to official
requests for such documents from relevant individuals,
mooted all claims related to the underlying PIA action;
(2) whether the doctrine of sovereign immunity deprived
the trial court of jurisdiction once the City establishe[d]
Appendix 1
by jurisdictional evidence that [the City] ha[d] complied,

to the extent of its ability, with the attorney general's
decision; and (3) whether a requestor may continue to
prosecute a mandamus action brought under the PIA when
evidence establishes that the circumstances listed in PIA
sections 552.321 and 552.324 do not exist. Because the
City's uncontroverted jurisdictional evidence conclusively
negated that it was refusing to supply public information or
information that the attorney general has determined is public
information, see Tex. Gov't Code 552.321(a) (waiving
sovereign immunity for certain mandamus actions), which
formed the basis of Allala's request for mandamus relief, we
will begin our analysis with the City's sovereign-immunity
argument. 6
compel a governmental body to make information available

for public inspection under certain circumstances:
A requestor or the attorney general
may file suit for a writ of mandamus
compelling a governmental body to
make information available for public
inspection if the governmental body
refuses to request an attorney general's
decision as provided by Subchapter G
or refuses to supply public information
or information that the attorney
general has determined is public
information that is not excepted from
disclosure under Subchapter C.
Tex. Gov't Code 552.321(a) (footnotes omitted). Allala

Sovereign Immunity
asserted in her pleading that she was entitled to mandamus
[6]
[7]
[8]
[9]
[10] The doctrine of sovereign
relief under section 552.321 because [t]he City of El Paso
immunity, which shields governmental entities' improvident
refused to disclose public information that the attorney
acts against the litigation and judicial remedies that would
general has determined is public information that is not
be available if the same acts were committed by private
exempt from disclosure. In support of her claim, Allala
persons, is well known and settled in Texas. See Tooke v. City
alleged that she had requested certain documents from the
of Mexia, 197 S.W.3d 325, 33132 (Tex.2006). Sovereign
City, including private emails regarding official city business;
immunity deprives a trial court of subject-matter jurisdiction
the City withheld certain documents responsive to that request
for lawsuits in which the state or certain governmental
and sought an opinion from the attorney general; the attorney
units have been sued unless the state consents to suit.
general issued a ruling determining that the information was
See Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618,
public information subject to disclosure; and that instead
62021 (Tex.2011) (per curiam); Miranda, 133 S.W.3d at
of complying with that decision and producing the public
224. Sovereign immunity compels Texas courts to defer
information, the City filed a suit for judicial review of the
to the legislature as the gatekeeper controlling when and
attorney general's opinion. As such, Allala's pleading alleged
how citizens can sue their state government or its officers
facts that affirmatively demonstrated the district court's
for their official acts. See Wichita Falls State Hosp. v.
subject-matter jurisdiction over her claim. See Miranda, 133
Taylor, 106 S.W.3d 692, 695 (Tex.2003) (noting that the
S.W.3d at 226.
Legislature is better suited to balance the conflicting policy
issues associated with waiving immunity) (citing, among
The City, however, after deciding to disclose and then
other cases, Texas Natural Res. Conservation Comm'n v. IT
disclosing the responsive information that it had been
Davy, 74 S.W.3d 849, 854 (Tex.2002)). The legislature may
previously withholding, including various emails from
consent to suits against the State by statute or resolution, but
private accounts that it had received from private individuals,
legislative consent to sue the State must be expressed in
filed a plea to the jurisdiction and submitted evidence
clear and unambiguous language. ITDavy, 74 S.W.3d
to controvert the jurisdictional facts supporting Allala's
at 85354 (citing General Servs. Comm'n v. LittleTex.
mandamus claim. See Miranda, 133 S.W.3d at 22728
Insulation Co., 39 S.W.3d 591, 594 (Tex.2001) and (quoting
(movant in plea to jurisdiction, like movant in summary
*322 Tex. Gov't Code 311.034; University of Tex. Med.
judgment, must assert and support with evidence that the trial
Branch v. York, 871 S.W.2d 175, 177 (Tex.1994))).
court lacks subject-matter jurisdiction). The City argued that
its voluntary disclosure of all responsive public information
Allala's intervention in the underlying suit asserted a
in its possession deprived the district court of jurisdiction over
claim under PIA section 552.321, which waives sovereign
Allala's section 552.321 mandamus action. In support of its
immunity for requestors seeking a writ of mandamus to
argument, the City attached the attorney general's opinion and
three affidavits showing how it had fully complied with the
Appendix 1
PIA and the attorney general's opinion by making available to

Allala all of the public information to which it had access. 7
The City's first affidavit in support of its plea to the
jurisdiction was from El Paso Assistant City Attorney Kristen
Lynn Hamilton, who testified regarding the City's efforts
to comply with Allala's information request. Relevant here,
Hamilton testified that:
Between receipt of Allala's request and September 17,
2012, the City searched for all responsive documents
that were held on the City's server or that were
within the *323 physical control of city employees
and officials, including all responsive documents that
were held on the City's server ... in the Microsoft Outlook
file of each of the relevant persons from whom the
requestor was seeking emails;
On September 11, 2012, Hamilton instructed each of
the persons named in the request to gather all responsive
documentation that was not held on the City's server;
In response to the City's request to turn over responsive
documents, certain individuals provided e-mails that
they retrieved voluntarily from their personal e-mail
accounts, and those private emails were included in
the [City's] request to the Attorney General;
After receiving Allala's second request, the City gathered
all responsive documents, including personal e-mails
that were, at the time of the second request, in the
possession of the City;
The City included in its request for an attorney general
opinion the private emails it had received from various
individuals;
During the pendency of the City's suit against the attorney
general, the City passed a resolution requiring its
officers, employees, and volunteers to use City e-mail
addresses to conduct all City business and to forward
any correspondence regarding City business that was
stored on personal e-mail accounts to the employees'
City email account;
Also during the pendency of the City's suit, the El
Paso City Council instructed that all documentation
previously withheld, and subject to the lawsuit, was to
be released to the public;
In response to that directive, the City released every

document, electronic or tangible, that had been located
in any City server[ ] or in the possession of any employee
or official [that] had previously been withheld contrary
to the determination of the Attorney General;
On August 29, 2013, the El Paso City Manager sent
a letter requesting that each of the relevant persons
provide any additional [responsive] personal e-mails that
had not previously been turned over to the City;
On September 16, 2013, the City produced the documents
it received in response to the August 29 letter, including
emails and statements from the targeted individuals that
no responsive personal emails existed; and
By September 17, 2013, the City had released to Allala
all the information that was in the City's possession,
custody or control, or that it had received from the
named individuals.
The second affidavit, from the City's system administrator,
described in detail the internal search for documents on
the City's servers, including the Outlook mailboxes of the
named individuals. The City's third affidavit in support of
its plea to the jurisdiction was from its outside counsel
Erin Higginbotham, who testified that she assisted Hamilton
with Allala's request, including the release of all responsive
documents that the City had previously sought to withhold.
She also reiterated Hamilton's assertions regarding the City's
requests to the named individuals to turn over to the City any
responsive documents that exist on those individuals' private
email accounts.
In sum, the City's jurisdictional evidence established that
the City searched extensively for responsive documents,
officially *324 requested responsive documents from the
individuals named in the request, and then ultimately
produced to Allala all the documents that it had been able
to locate and obtain. We conclude that this was sufficient
to conclusively establish that the City was not refusing
to supply public information that the attorney general has
determined is public information. See Tex. Gov't Code
552.321(a). By its plain terms, the PIA's waiver of sovereign
immunity for mandamus requires that the City be refusing
to supply public informationhere, the private emails of
others. Refuse in this context means to show or express
a positive unwillingness to do or comply with. Webster's
Third New Int'l Dictionary 1910 (2002) (defining verb
refuse); see The American Heritage Dictionary of the
Appendix 1
English Language 1478 (5th ed. 2011) (defining refuse as

to indicate unwillingness to do, accept, give, or allow, and
explaining that it implies determination). By comparison,
the transitive form of the verb fail, which the legislature
has used, in similar contexts, by itself, see, e.g., Tex.
Occ.Code 2051.457 (fails to pay), or in conjunction
with refuse, see, e.g., Tex. Nat. Res.Code 134.173
(violates, fails, or refuses to comply), means to omit
to perform or to leave undone. See American Heritage
Dictionary at 634. Thus, under the plain language of section
552.321's waiver of sovereign immunity, a requestor must
show that the governmental body is unwilling to supply
public information. See Tex. Gov't Code 552.321; City
of Rockwall, 246 S.W.3d at 62526 (asserting that courts
should rely on the plain meaning of the words, unless a
different meaning is supplied by legislative definition or is
apparent from context, or unless such a construction leads
to absurd results' ); Tex. Gov't Code 311.011 (Words
and phrases shall be read in context and construed according
to the rules of grammar and common usage, but [w]ords
and phrases that have acquired a technical or particular
meaning, whether by legislative definition or otherwise, shall
be construed accordingly.); see also Associates Fin. Servs. of
Am., Inc. v. North Carolina Farm Bureau Mut. Ins. Co., 137
N.C.App. 526, 528 S.E.2d 621, 624 (2000) (defining refuse
to renew as indicating an unwillingness to renew); but see
Societe Internationale Pour Participations Industrielles Et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 20708, 78 S.Ct.
1087, 2 L.Ed.2d 1255 (1958) (acknowledging definition of
refuse, but declining to apply where statute in question used
the word in same sense as fail). The City's jurisdictional
evidence conclusively shows that it searched extensively for
the requested information, officially requested responsive
documents from the targeted and relevant individuals on at
least two occasions, and produced to Allala every responsive
document that it found or received.
Our review of the PIA reveals no methods by which the
City could compel the disclosure of public-information
emails located on private email accounts, other than
what the City did herei.e., request the documents from
the targeted individuals and change the City's policy
regarding public business on private emails. In fact, other
than requiring that the governmental body promptly 8
produce public information for inspection, duplication, or
*325 both, Tex. Gov't Code 552.221(a), the PIA
provides no guidance regarding the efforts a governmental
body must take to locate, secure, or make available the
public information requested. Here, the City's jurisdictional
evidence conclusively established that it was willing to supply

the requested information and, to the extent that it located
it or received it from the individuals named in the request,
it actually had done so. Accordingly, the City asserted and
supported with evidence that the trial court lacked subjectmatter jurisdiction. See Miranda, 133 S.W.3d at 228.
Once the City established that it was not refusing to
supply public information, the burden shifted to Allala
to show that there is a disputed material fact regarding
the jurisdictional issue. See id. Allala, however, did not
controvert or object to the City's jurisdictional evidence
discussed above; 9 instead she responded that her claim was
that the City did not disclose all of the public information she
requested as required and, therefore, she should be allowed
to take targeted depositions to determine whether the
individuals named in her request had turned over responsive
private emails to the City. She also emphasized that, under
Local Government Code sections 201.005 and 201.006, any
documents responsive to her request are the property of the
City and must be turned over to the City. See Tex. Loc. Gov't
Code 201.005.006(a). In support of this argument, Allala
offered, among other items, an email from former council
member Steve Ortega stating that, in response to the City's
August 29 request for public information held on private
email accounts, he will not produce any of his private emails.
Allala also attached a copy of a newspaper article from the
El Paso Times mentioning Ortega in connection with Allala's
request:
I guess they can ask me for anything they want, but I'm
not going to turn over anything unless there is a valid court
order, Ortega said. There is the Fourth Amendment that
protects my personal effects. Certain standards have to be
met in order for me to turn over my personal effects. When
that standard is met I will turn them over.
Finally, Allala attached copies of emails from individuals
named in her request that, she contends, show that those
individuals had not turned over all responsive documents
and, thus, the City's production of responsive documents
was incomplete. In sum, Allala's response established that
certain individuals may be in possession of emails that are
responsive to her PIA request, that those individuals may
be unwilling to turn over those emails, and that the City
has not made those possibly-existing emails available to
her. Therefore, Allala continued, she should be allowed to
conduct discovery on the issue before the City's plea to the
jurisdiction is granted.
Appendix 1
Even assuming, as we must in this circumstance, see

Miranda, 133 S.W.3d at 226 (requiring reviewing court to
indulge every reasonable inference and resolve any doubts
in the nonmovant's favor), that the City has not disclosed all
responsive documents that existi.e., that private individuals
continue to hold public information on their private email
accountsthe bottom line for purposes of our appellate
review of the City's plea to the jurisdiction is that Allala
did not offer any evidence, or even argument, to controvert
or question the City's conclusive evidence that it searched
*326 extensively for the requested documents, including
officially informing each of the targeted individuals that they
must turn over the requested information to the City, and
turned over all those documents to Allala. Stated another
way, Allala did not raise a fact question on the issue of
whether the City was refusing or unwilling to supply the
public information. The fact that a former city councilman
has public information on his private email account that he
has not provided to the City, despite multiple official requests
by the City that he do so, does not reflect that the City
is unwilling to disclose that information as it is required
to do so under the PIA. See, e.g., Thomas v. Cornyn, 71
S.W.3d 473, 486 (Tex.App.-Austin 2002, no pet.) (citing A
& T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex.1995)
(holding that predecessor statute to PIA does not require
governmental body to prepare or assemble new information
in response to a request)); Economic Opportunities Dev.
Corp. v. Bustamante, 562 S.W.2d 266, 268 (Tex.Civ.App.San Antonio 1978, writ dism'd) (holding that a government
agency could not be required to make copies of documents no
longer in its possession); see also Tex. Att'y Gen. ORD555
(1990) (stating that only information in existence is subject
to disclosure).
Allala argues that section 202.005 of the Local Government
Code gives the City a judicial means to obtain or recover the
private emails at issue here:
(a) The governing body may demand and receive from any
person any local government record in private possession
created or received by the local government the removal of
which was not authorized by law.
(b) If the person in possession of a local government record
refuses to deliver the record on demand, the governing
body may petition the district court of the county in which
the person resides for the return of the record. If the court
finds that the record is a local government record, the court
shall order the return of the record.
Tex. Loc. Gov't Code 202.005(a)-(b). We disagree. First,

even an unanswered petition to the district court would not
allow the agency to meet the short turnaround time demanded
by the PIA. See Tex. Gov't Code 552.301(b) (imposing tenday limit on request for attorney general decision). Second,
under its plain language, section 202.005 applies only where
the local-government record at issue was removed without
authorization. See id. 202.005(a) (the removal of which
was not authorized by law). On the record before us, there
is no suggestion that private emails responsive to Allala's
request were removed without authorization. Finally, even
assuming that section 202.005 provides the City a means to
access the private emails at issue here and disregarding any
privacy issues that might arise, using it here as Allala suggests
i.e., either to compel the City to sue former employees or
councilmen or to show that the City is refusing to produce the
emailswould result in the expansion of the PIA's specific
waiver of sovereign immunity by grafting a discretionary
Local Government Code provision that does not waive, or
even concern, sovereign immunity. We are not authorized
or willing to do this. See Tex. Gov't Code 311.034 (In
order to preserve the legislature's interest in managing state
fiscal matters through the appropriate process, a statute shall
not be construed as a waiver of sovereign immunity unless
waiver is effected by clear and unambiguous language.);
Taylor, 106 S.W.3d at 696 (noting as settled proposition that
statutory waiver of sovereign immunity must be by clear
and unambiguous expression of the Legislature's waiver of
immunity).
*327 For the reasons explained, we conclude that the City
established as a matter of law that it was not refusing to supply
public information and that Allala failed to raise a fact issue
on that point. Thus, the district court lacked subject-matter
jurisdiction over Allala's section 552.321 mandamus claim
and should have granted the City's plea. See Miranda, 133
S.W.3d at 234 (allowing dismissal on plea to the jurisdiction
where the jurisdictional evidence is undisputed and fails to
raise fact issue). Accordingly, we sustain the City's first issue
on appeal.
Having determined that the district court lacked jurisdiction
under principles of sovereign immunity, we need not address
the City's remaining challenges to the district court's denial of
its plea to the jurisdiction.
Allala's cross-point
Appendix 1
In a cross-point, Allala urges that the district court's denial of

the City's plea to the jurisdiction was proper because the City
withheld and continues to withhold certain email addresses
from public disclosure. But, without addressing or expressing
an opinion regarding whether the email addresses at issue here
fall under the PIA, we note that the attorney general's opinion
directed the City to withhold the email addresses:
Section 552.137 of the Government Code excepts from
disclosure an e-mail address of a member of the public
that is provided for the purpose of communicating
electronically with a governmental body, unless the
member of the public consents to its release or the e-mail
address is a type specifically excluded by subsection (c).
Gov't Code 552.137(a)-(c). The e-mail addresses you
have marked, and the additional e-mail addresses we have
marked, are not a type specifically excluded by section
552.137(c). Therefore, the city must withhold the marked
e-mail addresses under section 552.137, unless the owners

affirmatively consent to their release.
(Emphasis added.) Given this directive, the City cannot
be said to be refusing to supply public information that
the attorney general has determined is public information.
Accordingly, we overrule Allala's cross-point.
Conclusion
Having determined that the trial court erred by denying the
City's plea to the jurisdiction and having overruled Allala's
cross-point, we reverse the district court's order denying the
City's plea to the jurisdiction and render judgment granting
the plea and dismissing Allala's claims.
Footnotes
1
2
3
4
5
6
7
8
The PIA is codified in the Texas Government Code. See Tex. Gov't Code 552.001.353.
See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, 2, sec. 552.002, 1995 Tex. Gen. Laws 5127, 512728 (amended
2013) (current version at Tex. Gov't Code 552.002) (definition of public information in effect when Allala filed her
requests for information.
Because the issue is not before us here, we do not address the effect of the Legislature's 2013 changes to the definition
of public information.
The district court determined that the affidavit's statement regarding its diligent search for information was conclusory.
If the challenged jurisdictional fact does not overlap the merits, the fact issue may be resolved by the trial court when
resolving the jurisdictional issue, and its explicit or implicit fact-finding (or failure-to-find) may be challenged in the same
manner as fact findings generally. See Combs v. Entertainment Publ'ns, Inc., 292 S.W.3d 712, 719 (Tex.App.-Austin
2009, no pet.).
The Attorney General does not oppose the City's appeal and, consequently, did not file an appellate brief in response.
The City filed four affidavits, but, as mentioned above, the district court sustained Allala's objection to Wilson's affidavit.
Accordingly and because the City does not challenge this ruling on appeal, we have considered only the three
unchallenged affidavits in our resolution of this appeal.
Section 552.221 defines promptly as as soon as possible under the circumstances, that is, within a reasonable time,
without delay. See Tex. Gov't Code 552.221(a); see also id. 552.221(c) (requiring notification to requestor if
information cannot be produced within ten days of request), 552.301(b) (requiring governmental body that seeks to
withhold information to request attorney general decision within ten days of receipt of request for information).
Allala argued in her response and supported with an affidavit that certain attachments to disclosed emails had not been
produced, but the record indicates that the parties resolved this issue and that the attachments in question were disclosed.
Allala does not contend otherwise on appeal.
End of Document
Appendix 1
City of Houston v. Kallinen, 414 S.W.3d 815 (2013)
414 S.W.3d 815

Court of Appeals of Texas,
Houston (1st Dist.).
CITY OF HOUSTON, Appellant
v.
Randall KALLINEN and Paul Kubosh, Appellees.
2013.
No. 011200050CV. | Aug. 29,

| Rehearing Overruled Nov. 22, 2013.
requested regarding the City's red light camera installations.

After a series of rulings by the trial court, the City filed a
motion for new trial and plea to the jurisdiction. The trial
court denied the City's plea to the jurisdiction. In two issues,
the City challenges the trial court's orders denying its plea to
the jurisdiction and awarding attorney's fees to appellees. We
reverse and render.
Background
Synopsis
Background: Requestors of information under Texas Public
Information Act (TPIA) filed mandamus suit against city,
seeking public disclosure of various documents requested
regarding city's red light camera installations. The 295th
District Court, Harris County, Caroline E. Baker, J., denied
city's plea to the jurisdiction. City appealed.
[Holding:] The Court of Appeals, Jim Sharp, J., held that

requestors failed to exhaust administrative remedies prior to
filing mandamus suit.
In November and December 2008, Kallinen made four

requests under the TPIA for release of information regarding
a commissioned study on traffic light cameras in Houston.
The City released some of the documents but withheld
others based upon disclosure exceptions under the Act. The
City also requested a decision from the Attorney General
regarding whether the TPIA exceptions applied. Before the
Attorney General had issued a decision, appellees filed suit
in district court on December 26, 2008, seeking a writ of
mandamus under the TPIA. 1 Appellees then requested that
the Attorney General refrain from making a determination
because the issue was a subject of ongoing litigation. The
Attorney General did subsequently decline to issue an opinion
in order to allow the trial court to decide whether the withheld
documents were excepted from disclosure under the TPIA.
Reversed and rendered.

*815 David M. Feldman, City Attorney, Judith L. Ramsey,
Mary Mayzie H. Burke, Fernando De Leon, City of
Houston Legal Dept., Houston, TX, for Appellant.
Joseph R. Larsen, Sedgwick, LLP, Houston, TX, for
Appellees.
Panel consists of
MASSENGALE.
Justices
BLAND,
SHARP,
and
OPINION
JIM SHARP, Justice.
This interlocutory appeal arises from a suit for writ of
mandamus brought under the Texas Public Information Act
(TPIA). Randall Kallinen and Paul Kubosh (appellees)
filed a mandamus suit against the City of Houston (the City)
*816 seeking the public disclosure of various documents
On September 14, 2009, appellees filed a motion for partial

summary judgment seeking a ruling as to whether the TPIA's
exceptions applied to the withheld documents. On October
12, 2009, the trial court granted in part, and denied in part,
appellees' summary judgment motion, and ordered the City
to disclose some of the withheld documents. On November
16, 2009, appellees filed a motion for entry of judgment and
award of attorney's fees and, following a hearing on appellees'
attorney's fee claim, the trial court issued a final judgment on
October 12, 2011, reiterating its October 12, 2009 ruling and
awarding appellees $95,664 jointly in attorney's fees.
On November 10, 2011, the City filed a motion for new trial
and plea to the jurisdiction. On January 5, 2012, the trial court
granted the City's motion for new trial as to attorney's fees for
Kubosh and denied the City's plea to the jurisdiction. On July
12, 2012, the trial court entered a modified final judgment
ruling that Kubosh was without standing and awarding him
no attorney's fees.
Appendix 2
Standard of Review
A plea to the jurisdiction challenges the trial court's subject
matter jurisdiction which is essential to the authority of a
court to decide a case. See Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 55354 (Tex.2000). A plea challenging a trial
court's jurisdiction is a question of law that is reviewed de
novo. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538
(Tex.2010).
The construction of a statute, too, is a question of law which
is reviewed de novo. See Atmos Energy Corp. v. Cities of
Allen, 353 S.W.3d 156, 160 (Tex.2011). The purpose of
interpretation is to arrive at the legislature's intent in creating
the statute. F.F.P. Operating Partners, L.P. v. Duenez, 237
S.W.3d 680, 683 (Tex.2007). In discerning legislative intent,
we consider the plain and common meaning of the statutory
language. See McIntyre v. Ramirez, *817 109 S.W.3d 741,
745 (Tex.2003). The statute must be read as a whole, giving
effect to all not just isolated-portions. See City of San Antonio
v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). Courts
also consider the objective the law seeks to obtain. See TEX.
GOV'T CODE 311.023(1) (West 2005).
Discussion
In its first issue, the City contends that the trial court
erred in denying its plea to the jurisdiction because, among
other reasons, the Attorney General declined to perform
his statutory duty to issue a decision on the City's request.
Appellees argue that they have a statutory right to file a
suit for writ of mandamus against the City because the City
refused to release public information.
A. Applicable Law
The TPIA governs public disclosure of information about
the affairs of the government and the official acts of public
officials and employees, and it requires the officer for
public information of a governmental body to produce public
information for inspection or copying on application by any
person to the officer. See TEX. GOV'T CODE ANN.
552.001, .203, .221(a) (West 2012). A requestor is defined
as a person who submits a request to a governmental body for
inspection or copies of public information. Id. 552.003(6).
The TPIA also lists numerous exceptions from required

disclosure. See id. 552.101.153. Though the act is to
be liberally construed in favor of granting requests for
information, id. 552.001(b), a governmental body may
seek to withhold requested information that it believes falls
within one of the statutory exceptions to disclosure. See
id. 552.101.153. To do so, the government body must
timely request an Attorney General determination (if there
has not been a previous determination) and assert which
exceptions to disclosure apply to the information requested.
Id. 552.301. The TPIA provides that the attorney general
shall promptly render a decision requested ... determining
whether the requested information is within one of the
exceptions .... Id. 552.306(a). However, the governmental
body may disclose the requested information to the public or
to the requestor before the Attorney Generalor, if suit is
filed under the TPIA, the court with jurisdictionmakes a
final determination that the requested information is public,
except if the requested information is confidential by law. See
id. 552.303(a).
The TPIA also provides that the Attorney General and the
original requestor may file suit for a writ of mandamus
to compel a governmental body to release information to
the public 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. Id. 552.32(a). If a
governmental body does not request an Attorney General
decision after receiving a written request for information, the
requested information is presumed to be subject to required
public disclosure and must be released unless there is a
compelling reason to withhold it. See id. 552.302. Further,
the TPIA also provides that the only exceptions to required
disclosure that the governmental body may raise in such a suit
are those that it properly raised before the Attorney General
to support its request for a decision as to whether disclosure
is required. See id. 552.326(a).
B. Analysis
[1] The issue before us is whether the TPIA allows a
requestor to sue for a writ of mandamus prior to the Attorney
General issuing a decision when the governmental *818
body has requested one. The City contends that the TPIA
requires the Attorney General to render a decision before a
mandamus suit may be filed. Appellees argue that no such
requirement has been or should be read into the TPIA.
Appendix 2
As previously noted, section 552.321(a) sets out three

scenarios under which the Attorney General or a requestor
may file a mandamus suit. First, if a governmental body fails
to request an Attorney General decision in the time permitted,
the information is presumed to be open to public disclosure,
and the governmental body must release the information. See
id. 552.321(a). If it fails to do so, the requestor may file
suit for a writ of mandamus. See id. Second, if the Attorney
General has rendered a decision and the governmental body
has failed to comply with the decision, the Attorney General
or the requestor may then file suit. See id. Finally, either
the Attorney General or the requestor may file suit, if the
governmental body refuses to supply public information.
Id.
indeed, must in this casedefer to courts' decisions when

certain issues are being litigated.
The Attorney General, however, has already weighed in on
this debate: Open Records Decision No. 687 concludes that
in accordance with its legislatively[ ] mandated function, the
Attorney General has a statutory directive to rule on a PIA
disclosure question in the first instance in advance of judicial
review. Tex. Att'y Gen. OR2011687. After acknowledging
the previous agency decisions cited by appellees in which
the agency had declined to issue an opinion when that same
question was pending before a court, the Attorney General
ruled that this litigation policy is withdrawn and is no longer
applicable to the PIA ruling process. Id.
Appellees argue that the third scenario applies here. That

is, they argue that the City refused to release public
information and they were therefore entitled to file a
mandamus suit. In support of their argument, appellees point
out that the legislature did not qualify the word refuse by
including exceptions for cases in which the government body
This decision is significant in several ways. First, it notes

that the Attorney General may not refuse to fulfill his duty
to render open records decisions. See Hous. Chronicle Publ'g
Co. v. Mattox, 767 S.W.2d 695, 698 (Tex.1989). Second, it
points out the 1999 revisions to the TPIA, which expanded
the scope of the Attorney General's role. In particular,
2
the decision highlights the addition of section 552.011,
has requested an Attorney General ruling. That reading,
which charges the Attorney General with maintain[ing]
however, is unpersuasive. Though the term refuse is not
uniformity in the application, operation, and interpretation of
qualified, the term information is. See id. 552.321(a)
this chapter. The decision then concludes that the detailed
(permitting suit for writ of mandamus where governmental
statutory scheme under which the Attorney General's open
body refuses to supply public information) (emphasis
records ruling process operates, as well as the lack of any
added). Because the TPIA carves out numerous exceptions
language affirmatively directing the Attorney General to
to disclosure of certain types of information and establishes
decline to issue an open records ruling for the benefit of the
procedures to determine whether information falls under
public, demonstrate that such Attorney General decisions are,
those exceptions, it is illogical to presume that information is
indeed, mandatory. Finally, Open Records Decision No. 687
public while its very status is being challenged. Additionally,
offers insights into the policy considerations underpinning the
considering that the statute explicitly states when information
Attorney General's expanded role under the statute. Vesting
is presumed to be publici.e., if the governmental body has
the Attorney General with the role of evaluating requests
not made an Attorney General requestit does not stand to
by governmental bodies to withhold putatively excepted
reason that information should be considered public when a
information is both more efficient, avoiding the expense of
request has been made.
court action, and more democratic, allowing Texans equal
[2] [3] Not only does the statute clearly provide when a access to information regardless of their ability to secure
legal representation. The decision concludes by stating that
mandamus suit may be filed, but it is equally clear that the
there is little to commend a rule that would avoid ruling
Attorney General must render a decision on the nature of the
on a pending question where the Attorney General has not
information in question. The City contends that the TPIA is a
previously spoken. Tex. Att'y Gen. OR2011687.
comprehensive regulatory scheme under which the Attorney
General must issue a decision before a mandamus suit may
[4] We agree with the Attorney General's interpretation. 4
be filed. 3 It *819 argues that because the Attorney General
The TPIA is a comprehensive *820 statutory scheme
did not issue a decision in this case before appellees filed
under which the Attorney General [is] the first arbiter
their suit, the jurisdictional prerequisite for filing suit under
of openness before Texans can be denied access to their
section 552.321 was not met. Appellees, citing past Attorney
government's records. See Tex. Att'y Gen. OR 2011687
General decisions, contend that the Attorney General may
(noting that, in enacting TPIA, legislature set[ ] out a
Appendix 2
detailed statutory scheme ... which ... evidences [its] intention

that the Attorney General play a critical, quasi-judicial
role when a governmental body wishes to avoid releasing
information requested pursuant to the PIA.); see also Tex.
Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343
S.W.3d 112, 121 (Tex.2011) (Wainwright, J., concurring)
(describing TPIA as comprehensive scheme arming the
public with statutory mandates for the government to disclose
information ....). Although district courts have subject matter
jurisdiction under the TPIA, that jurisdiction only arises after
the Attorney General has ruled. See TEX. GOV'T CODE
ANN. 552.321(a).
sought to withhold. Because appellees failed to exhaust their

administrative remedies before doing so, the trial court lacked
subject matter jurisdiction over their mandamus suit. As
such, the trial court erred in denying the City's plea to the
jurisdiction. We sustain the City's first issue.
Conclusion
We reverse the trial court's order denying the City's plea to
the jurisdiction and render judgment that appellees' claims
against the City are dismissed for want of jurisdiction.
Appellees filed suit for writ of mandamus before the Attorney

General issued a ruling on the information that the City
Footnotes
1
2
Appellees also filed a declaratory judgment under the Texas Declaratory Judgment Act (TDJA), seeking a declaration
that disclosure was required. See TEX. CIV. PRAC. & REM.CODE ANN. 37.002(b) (West 2008).
Appellees rely on Thomas v. Cornyn, 71 S.W.3d 473, 486 (Tex.App.-Austin 2002, no pet.) (noting that mandamus statute
does not qualify the word refuse by including an exception for cases in which the governing body has filed a suit against
the attorney general under the Act, and we will not read such an exception into the statute.). That reliance is misplaced.
In Thomas, the Attorney General had already rendered a decision on the nature of the information. According to section
552.324(a)(2), a governmental body may sue for declaratory relief from compliance with an already issued decision by
the Attorney General. The Thomas court correctly determined that the suit for writ of mandamus filed after the Attorney
General decision and before the suit for declaratory relief had been decided was a valid one, pointing to the relevant
provision in 552.325(a) allowing a requestor to intervene in such suits. The language that appellees cite from Thomas
is clearly applicable only to fact patterns involving governmental bodies' suits against the Attorney General, not for suits
for writ of mandamus prior to an Attorney General ruling.
An agency has exclusive jurisdiction when it is clear that the legislature instituted a pervasive regulatory scheme meant to
be the exclusive means of remedying certain problems targeted by the legislation. See Subaru of America, Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002). If an agency has exclusive jurisdiction, a party must exhaust all
administrative avenues before asking for judicial review of the agency's action. Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d
12, 15 (Tex.2000). Otherwise, a trial court lacks subject matter jurisdiction and must dismiss the claims within the agency's
exclusive jurisdiction. See Tex. Educ. Agency v. CypressFairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992).
Although not binding authority on appellate courts, we give due consideration to the Attorney General on questions
involving the TPIA. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex.1996) (explaining that Attorney General opinions
are persuasive but not controlling authority); City of Lubbock v. Cornyn, 993 S.W.2d 461, 463 (Tex.App.-Austin 1999, no
pet.) (recognizing due consideration to be given Attorney General decisions especially in cases involving TPIA); City of
Hous. v. Hous. Chronicle Publ'g Co., 673 S.W.2d 316, 322 (Tex.App.-Houston [1st Dist.] 1984, no writ) (While opinions
of the Attorney General are not binding upon the courts, they should be given great weight.).
End of Document
Appendix 2
City of San Antonio v. City of Boerne, 111 S.W.3d 22 (2003)

46 Tex. Sup. Ct. J. 848
control over all roads, see TEX. LOC. GOV'T CODEE

111 S.W.3d 22
Supreme Court of Texas.
CITY OF SAN ANTONIO, Petitioner,
v.
CITY OF BOERNE, Respondent.
81.028(5), 1 or (ii) as agent of the State of Texas, see

id. 42.022(b). Because we hold that the Legislature has
neither expressly nor impliedly conferred such power upon
a commissioners court under either section 81.028(5) or
42.022(b), we reverse the court of appeals' judgment and
remand the case to the district court for further proceedings
consistent with this opinion.
No. 011054. | Argued Sept. 18,

2002. | Delivered June 26, 2003.
| Rehearing Denied Aug. 21, 2003.
City brought action for declaratory judgment and injunction
against nearby city, seeking to establish which city's
extraterritorial jurisdiction included certain contested areas
of land. The 216th Judicial District Court, Kendall County,
Stephen B. Ables, J., granted summary judgment in favor of
plaintiff city. Nearby city appealed. The Court of Appeals,
61 S.W.3d 571, affirmed. Nearby city filed petition for
review. The Supreme Court, Jefferson, J., held that: (1) the
legislature's grant of general control over the roads does not
include the power to petition a city to annex certain portions
of a given county road, and (2) a county commissioners court
is not entitled, as agent of the State, to petition a municipality
for annexation.
Reversed and remanded.
Smith, J., concurred in the judgment only.

*23 Harvey L. Hardy, Law Office of Harvey Hardy, Donald
S. Bayne, San Antonio City Attorney's Office, San Antonio,
for Petitioner.
*24 Randall B. Richards, Law Offices of Randall B.
Richard, Boerne, for Respondent.
Opinion
Justice JEFFERSON delivered the opinion of the Court,
in which Chief Justice PHILLIPS, Justice HECHT,
Justice ENOCH, Justice OWEN, Justice O'NEILL, Justice
SCHNEIDER, and Justice WAINWRIGHT joined.
In this municipal annexation dispute, we consider whether a
county commissioners court may petition a city to include
portions of its county's roads within that city's extraterritorial
jurisdiction (i) pursuant to the Legislature's grant of general
I
BACKGROUND
[1] The City of San Antonio and the City of Boerne
stipulated to the relevant facts. On November 5, 1987,
San Antonio's City Council passed an ordinance (the San
Antonio Ordinance) annexing certain property located in
San Antonio's extraterritorial jurisdiction. 2 On the December
31, 1987 effective date of this annexation, San Antonio's
extraterritorial jurisdiction expanded to include property
that was previously unincorporated by any city. See id.
42.022(a).
After San Antonio passed its annexation ordinance, but before
it became effective, a number of property owners in Kendall
and Comal Counties petitioned Boerne to include their
property within Boerne's extraterritorial jurisdiction. See id.
42.022(b) (The extraterritorial jurisdiction of a municipality
may expand beyond the distance limitations imposed by
Section 42.021 to include an area contiguous to the otherwise
existing extraterritorial jurisdiction of the municipality if
the owners of the area request the expansion.). However,
the property of those petitioning owners was too dispersed
to satisfy section 42.022(b)'s contiguity requirement. To
overcome that obstacle, Boernewhich had agreed to
coordinate the annexation processaccepted petitions from
Kendall and Comal County commissioners courts to include
various sections of their counties' roads within Boerne's
extraterritorial jurisdiction. Boerne then passed a number
of ordinances (the Boerne Ordinances) extending its
extraterritorial jurisdiction accordingly.
Boerne concedes that, without including county roads, much
of the area is insufficiently contiguous to satisfy section
42.022(b). 3 By including these county roads, however,
Boerne believes it properly acquired jurisdiction over an area
that, *25 absent the Boerne Ordinances, would be within
Appendix 3

46 Tex. Sup. Ct. J. 848
the extraterritorial jurisdiction created by the San Antonio

Ordinance. Thus, in contravention of Local Government
Code section 42.022(c), San Antonio and Boerne effectively
claimed authority over the same area. See id. 42.022(c)
( The expansion of the extraterritorial jurisdiction of a
municipality through annexation, request, or increase in the
number of inhabitants may not include any area in the existing
extraterritorial jurisdiction of another municipality.).
In 1998, Boerne sued San Antonio, seeking a declaratory
judgment that the overlapping extraterritorial jurisdiction
belonged to Boerne, not San Antonio. Boerne also sought a
permanent injunction prohibiting San Antonio from asserting
jurisdiction over the contested land area. Based on stipulated
facts, the trial court ruled that the overlapping property was
validly within Boerne's extraterritorial jurisdiction before
the San Antonio Ordinance went into effect. The trial
court's judgment also provided that as of December 28,
1987, the effective date of the Boerne Ordinances, Boerne
had exclusive control over the overlapping extraterritorial
jurisdiction. The judgment permanently enjoined [San
Antonio] from asserting any jurisdiction or authority, or
attempting to enforce its ordinances, rules and/or regulations,
over the area [ ] declared to be the exclusive extraterritorial
jurisdiction of [Boerne].
San Antonio appealed the trial court's judgment and
argued, among other things, that the Kendall and Comal
County commissioners courts lacked authority to petition
Boerne to include segments of their counties' roads within
Boerne's extraterritorial jurisdiction. 4 The court of appeals
affirmed the trial court's judgment, holding that county
commissioners, as agents for the State, were empowered to
petition for inclusion in the extraterritorial jurisdiction of
Boerne. 61 S.W.3d 571, 579. In this Court, San Antonio
challenges the commissioners courts' authority to petition a
city to annex county roads pursuant to Local Government
Code sections 81.028 and 42.022. We granted San Antonio's
petition for review to resolve this issue. 45 Tex. Sup.Ct. J. 621
(May 11, 2002).
II
STANDARD OF REVIEW
News, 22 S.W.3d 351, 357 (Tex.2000); El Paso Natural Gas

Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999).
In construing a statute, our objective is to determine and
give effect to the Legislature's intent. State v. Gonzalez, 82
S.W.3d 322, 327 (Tex.2002); see also TEX. GOV'T CODE
312.005; Am. Home Prods. Corp. v. Clark, 38 S.W.3d
92, 95 (Tex.2000). We look first to the plain and common
meaning of the statute's words. Gonzalez, 82 S.W.3d at 327.
If a statute's meaning is unambiguous, we generally interpret
the statute according to its plain meaning. Id. We determine
legislative intent from the entire act and not just its isolated
portions. Id. (citing Jones v. Fowler, 969 S.W.2d 429, 432
(Tex.1998)). Thus, we read the statute as a whole and
interpret it to give effect to every part. Id. (quoting Jones,
969 S.W.2d at 432). *26 With these principles in mind, we
now turn to the parties' arguments.
III
DISCUSSION
San Antonio and Boerne agree that the issue here is whether
a county commissioners court may, either pursuant to powers
set forth in Local Government Code section 81.028 or as
the State's agent under Local Government Code section
42.022(b), petition to include portions of county roads within
a given municipality's extraterritorial jurisdiction. See TEX.
LOC. GOV'T CODEE 42.022, 81.028. Boerne argues that
the Legislature's reenactment of section 42.002subsequent
to section 81.028's enactmentestablishes the Legislature's
intent to give commissioners courts the authority to petition
for annexation. San Antonio, on the other hand, contends that
the statutes are unrelated and that our construction of one
should not influence our construction of the other. Before
analyzing these contentions, we briefly trace the historical
background of extraterritorial jurisdiction and annexation
in Texas and discuss the source of and limitations on a
commissioners court's power.
A
Extraterritorial Jurisdiction
Extraterritorial jurisdiction refers to the unincorporated

[2]
[3]
[4]
[5]
We review matters of statutory
area that is contiguous to the corporate boundaries of the
construction de novo. See City of Garland v. Dallas Morning
municipality and is located within a specified distance of
Appendix 3

46 Tex. Sup. Ct. J. 848
those boundaries, depending upon the number of inhabitants

within the municipality. Id. 42.021. The purpose of
extraterritorial jurisdiction is to promote and protect the
general health, safety, and welfare of persons residing in and
adjacent to the municipalities. Id. 42.001.
Generally, a municipality's extraterritorial jurisdiction may
not expand beyond legislatively prescribed limits. See id.
42.021. If the owners of a particular area request an
expansion, however, [t]he extraterritorial jurisdiction of a
municipality may expand beyond the distance limitations
imposed by Section 42.021 to include an area contiguous
to the otherwise existing extraterritorial jurisdiction of
the municipality. Id. 42.022(b). Boerne argues that
the commissioners courts' petitions bring this case within
section 42.022's exception permitting expansion beyond the
legislatively prescribed extraterritorial limits.
Report to the 57th Legislature 4 (1960); O'Quinn, supra, at

172. The first municipality to begin annexation procedures on
unclaimed territory obtained jurisdiction over that property.
Texas Legislative Council, supra, at 5 (discussing first
reading process); Ashcroft & Balfour, supra, at 52324. This
virtually unbridled annexation authority enabled cities to
claim territory without incurring any obligation to provide
new services or to formally annex the designated property.
Texas Legislative Council, supra, at 3840; Ashcroft &
Balfour, supra, at 524. The result, as noted by one
commentator, was that cities were quick to engage in
annexation wars and to stake [their] claim[s]. Ashcroft &
Balfour, supra, at 524; see also Texas Legislative Council,
supra, at 47 (discussing apparently frivolous and spiteful
motivations for annexation); O'Quinn, supra, at 172 (stating
that cities turned annexation into a contest of communities).
C
B
The Municipal Annexation Act of 1963
Municipal Annexation and the Home Rule Amendment
[7]
[6] Before 1912, the Legislature created virtually all cities
and municipal corporations. See TEX. CONST. art. XI, 5
interp. commentary; see also Robert R. Ashcroft & Barbara
Kyle Balfour, Home Rule Cities and Municipal Annexation
in Texas: Recent Trends and Future Prospects, 15 ST.
MARY'S L.J. 519, 520 (1984). At that time, Texas permitted
annexation under only two circumstances: (i) pursuant to
the general law, usually by majority vote of the annexed
residents, or (ii) by special act of the Legislature granting
or amending a specific city's charter. See TEX. CONST. art.
XI, 5 interp. commentary; Trueman O'Quinn, Annexing
New Territory: A Review of Texas Law and the Proposals
for Legislative Control of Cities Extending Their Boundaries,
39 TEX. L.REV. 172, 175 (1960). By adopting the Home
Rule Amendment in 1912, Texas withdrew the Legislature's
power to grant and change home rule city charters by special
laws. 5 TEX. CONST. art. XI, 5 *27 interp. commentary
(citing State ex rel. Wayland v. Vincent, 217 S.W. 402, 405
(Tex.Civ.App.-Amarillo 1919), aff'd, 235 S.W. 1084, 1088
(Tex.1921)).
With the Home Rule Amendment, home rule cities acquired
the authority to annex property without the property owners'
consent and without first establishing a need for the new
area. Texas Legislative Council, Municipal Annexation: A
In 1963, reacting to these widespread annexation wars,
the Legislature passed the Municipal Annexation Act. 6

TEX.REV.CIV. STAT. art. 970a, 1 (1963). The Act was
designed to curb the virtually unlimited power of home
rule municipalities to unilaterally annex territory. Laidlaw
Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 663
n. 1 (Tex.1995); Sitton v. City of Lindale, 455 S.W.2d 939,
941 (Tex.1970). The Act's main provisions limited cities'
annexation powers by: (i) requiring cities to complete the
annexation process within ninety days; (ii) restricting the
annexed territory's size and shape; and (iii) prohibiting cities
from annexing property that was not within the confines of
their extraterritorial jurisdiction. TEX.REV.CIV. STAT. art.
970a, 7 (1963). These limitations frame our discussion of a
commissioners court's authority.
D
Commissioners Courts' Authority
[8]
[9]
[10]
[11] A commissioners court's primary
function is to administer its county's business affairs. Avery v.
Midland County, 406 S.W.2d 422, 426 (Tex.1966), vacated
*28 on other grounds, 390 U.S. 474, 48586, 88 S.Ct.
1114, 20 L.Ed.2d 45 (1968). Though they are creatures of the
Appendix 3

46 Tex. Sup. Ct. J. 848
Texas Constitution, counties and commissioners courts are

subject to the Legislature's regulation. Orndorff v. State ex rel.
McGill, 108 S.W.2d 206, 210 (Tex.Civ.App.-El Paso 1937,
writ ref'd). The powers the Legislature confers on counties
and commissioners courts are duties rather than privileges.
Id. at 209. Thus, a commissioners court may exercise only
those powers expressly given by either the Texas Constitution
or the Legislature. Canales v. Laughlin, 147 Tex. 169,
214 S.W.2d 451, 453 (1948). When the Constitution or
Legislature imposes an obligation on a commissioners court,
that commissioners court also has the implied authority to
exercise the power necessary to accomplish its assigned duty.
Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084, 1085
(1941).
Turning now to the parties' contentions, we must determine
whether the Legislature, in giving commissioners courts
general control over the roads, expressly or impliedly
conferred the authority to petition a city to annex portions of
county roads.
IV
ANALYSIS
Boerne contends that, in enacting section 81.028, the
Legislature intended to give commissioners courts broad
power over all things involving, relating to or applicable to
[public] roads. Specifically, Boerne asserts that the statute's
general control language shows that the Legislature
authorized a commissioners court to voluntarily petition
a city to include a county road within its extraterritorial
jurisdiction. Boerne further argues that, pursuant to Local
Government Code section 42.022(b), a commissioners court
can, as the State's agent, exercise the State's power as owner
to petition for annexation. San Antonio contends that neither
section 81.028 nor 42.022(b) empowers a commissioners
court to petition a municipality to annex county roads. As
to section 81.028, San Antonio argues that the Legislature,
in giving commissioners courts general control over the
roads, intended only to exercise those powers required to
serve the traveling public, such as regulating traffic and
designing, constructing, repairing, and maintaining public
roads. Moreover, San Antonio contends that, because the
State does not own county roads, a commissioners court has
no authority under section 42.022(b) to act as the State's agent
in petitioning for annexation. 7
A
General Control Over Roads
[12] The Legislature gave commissioners courts general
control over the roads in 1876. See Act approved July 22,
1876, 15th Leg., R.S., ch. 55, 4, 1876 Gen. Laws, reprinted
in 8 H.P.N. GAMMEL, LAWS OF TEXAS 18821897,
88788 (1898). At the time the parties' dispute arose, the
relevant provision specifying a commissioners court's power
provided:
Each commissioners court may: (1)
establish public ferries whenever the
public *29 interest may require;
(2) lay out and establish, change,
discontinue, close, abandon, or vacate
public roads and highways; (3) build
bridges and keep them in repair; (4)
appoint road overseers and apportion
hands; (5) exercise general control
over all roads, highways, ferries, and
bridges in the counties....
TEX. LOC. GOV'T CODEE 81.028 (emphasis added).
Because the Legislature did not define general control,
we will use tools of statutory construction to determine
its meaning. Cf. Cail v. Serv. Motors, Inc., 660 S.W.2d
814, 815 (Tex.1983) (If the disputed statute is clear and
unambiguous extrinsic aids and rules of statutory construction
are inappropriate.) (citation omitted).
[13]
[14]
[15]
A fundamental rule of statutory
construction is to ascertain and give effect to the Legislature's
intent. State v. Terrell, 588 S.W.2d 784, 786 (Tex.1979);
Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S.W.
575, 581 (1911). When general words (like general control)
follow specific and particularized enumerations of powers
(like establish public ferries and lay out and establish ...
public roads), we treat the general words as limited and
apply them only to the same kind or class of powers as those
expressly mentioned. Stanford v. Butler, 142 Tex. 692, 181
S.W.2d 269, 272 (1944). We employ this rule to construe
specific terms no more broadly than the Legislature intended.
See id. Moreover, the meaning of particular words in a statute
may be ascertained by reference to other words associated
Appendix 3

46 Tex. Sup. Ct. J. 848
with them in the same statute. County of Harris v. Eaton, 573

S.W.2d 177, 179 (Tex.1978).
for inclusion in a city's extraterritorial jurisdiction is neither

expressly conferred nor necessarily implied to enable a
commissioners court to perform its delegated duty to provide
[16]
[17] Applying these canons of construction, we safe roads for public travel. Accordingly, we reject Boerne's
conclude that the Legislature's grant of general control over
broad construction of the phrase general control, and hold
the roads does not include the power to petition a city to
that a county's commissioners court is without authority to
annex certain portions of a given county road. If, as Boerne
petition for annexation of its county roads under section
contends, general control is read to include the power to
81.028.
petition for annexation, then there would have been no need
for the Legislature to illustrate in subsections one through
four the types of specific power a commissioners court may
B
utilize pursuant to section 81.028. See Spence v. Fenchler,
107 Tex. 443, 180 S.W. 597, 601 (1915) (It is an elementary
Commissioners Courts as Agents of the State
rule of construction that, when possible to do so, effect
must be given to every sentence, clause, and word of a
Although related to the parties' arguments about
statute so that no part thereof be rendered superfluous or
section 81.028, we analyze separately whether a county
inoperative.). Because a commissioners court's power is
commissioners court, acting as the State's agent, can petition
limited to that which is expressly delegated to it by the Texas
a municipality to annex portions of the county's roads.
Constitution or Legislature, or necessarily implied to perform
San Antonio and Boerne dispute whether the Legislature
its duties, we will not read the Legislature's grant of general
authorized commissioners courts to petition cities for
control to be more expansive than the type of powers set
annexation by enacting section 42.022, which provides:
forth in section 81.028. State ex rel. City of Jasper v. Gulf
States Utils. Co., 144 Tex. 184, 189 S.W.2d 693, 698 (1945)
The extraterritorial jurisdiction of
(limiting commissioners courts' powers to those expressly
a municipality may expand beyond
conferred or necessarily implied); Mo.-Kan.-Tex. Ry. Co. of
the distance limitations imposed by
Tex. v. Thomason, 280 S.W. 325, 327 (Tex.Civ.App.-Austin
Section 42.021 to include an area
1926, writ ref'd) (It has long been the rule of the courts
contiguous to the otherwise existing
to construe [exceptions to general rules] strictly.). Section
extraterritorial jurisdiction of the
81.028, when construed as a whole, clearly contemplate[s]
municipality if the owners of the areas
that the commissioners court of each county shall regard
request the expansion.
[public transportation] as a system, to be laid out, changed,
repaired, improved, and maintained, as far as practical, as a
TEX. LOC. GOV'T CODEE 42.022(b) (emphasis added).
whole to the best interest and welfare of all the people of the
Boerne focuses on the statute's reference to owners. It
county. Canales, 214 S.W.2d at 45455. Therefore, when we
argues that [t]he Legislature, acting for the State, has primary
construe a commissioners court's express power under section
and plenary power to control and regulate public roads and
81.028, we focus on the statute's transportation and safety
streets and it may delegate such powers to the counties in
aspects. In so doing, we hold that the Legislature intended to
this state. Boerne then reasons that, because the Legislature
limit a commissioners court's authority under section 81.028
gave commissioners courts general control over all roads in
to matters relating to public travel. See TEX. LOC. GOV'T
section 81.028, a commissioners court maywith respect to
CODEE 81.028.
public roads within its jurisdictiondischarge the owner's
prerogative by petitioning for annexation.
*30 A commissioners court's actions are thus sanctioned
under section 81.028 only if related to its duty to protect the
San Antonio repeats its earlier contention, which we have
public's interest in transportation. See Canales, 214 S.W.2d
sustained, that the counties' general control over roads is
at 45657. Unless the power to petition for annexation is
not sufficient to give them the power to petition for inclusion
necessary for a commissioners court to carry out that function,
in a municipalities' extraterritorial jurisdiction. San Antonio's
we will not imply that it has such power. See Gulf States
position regarding the State's ownership of county roads,
Utils. Co., 189 S.W.2d at 698; Terrell v. Sparks, 104 Tex.
however, has changed. In its initial briefing, San Antonio did
191, 135 S.W. 519, 521 (1911). Here, the power to petition
not dispute that the State owned those roads, but argued that
Appendix 3

46 Tex. Sup. Ct. J. 848
the counties were never granted specific authority to assert the

State's ownership rights to petition for inclusion within a city's
extraterritorial jurisdiction. Subsequently, at our request, the
State filed an amicus brief in which it denied fee simple
ownership of the roads. 8 San Antonio has now adopted the
State's position and argues that, because the State is not fee
simple owner of the roads in question, the commissioners
courts cannot exercise the State's ownership right to petition
for inclusion in Boerne's extraterritorial jurisdiction.
by the trial court in the first instance, and therefore we

express no opinion on the subject. Accordingly, we remand
the case to the trial court to determine San Antonio and
Boerne's extraterritorial boundaries in light of our decision
and to permit the parties to withdraw stipulated exhibits if
warranted. TEX.R.APP. P. 60.2(d), 60.3; Members Mut. Ins.
Co. v. Tapp, 469 S.W.2d 792, 793 (Tex.1971) (remanding in
the interest of justice because party misunderstood the effect
of a trial stipulation).
[18] Boerne correctly asserts, however, that the record in

this case does not reflect title to the roads, whether fee simple,
easement or otherwise. We note that while the State is not
precluded from owning *31 county roads in fee simple, 9
we have generally held that unless otherwise provided in the
grant or conveyance, the owner of land abutting a street,
alley, or public highway owns the fee to the center of the
road, subject only to the easement in favor of the public to
a right of passage. 10 From the record presented on appeal,
we can neither determine who owns the county roads nor
the nature of that ownership. But we need not ascertain the
exact nature of the State's interest to determine whether a
county is authorized to petition a municipality for annexation
on the State's behalf. Nothing in section 42.022(b) clearly
permits a commissioners court, purportedly acting on behalf
of the State, to advance purely provincial concerns for a subset
of the counties' landowners. Because a commissioners court
has only those powers expressly conferred or those powers
necessarily implied from other grants of power, we hold that
a commissioners court is not entitled, as agent of the State,
to petition a municipality for annexation. See Canales, 214
S.W.2d at 453.
Finally, we note that the parties' assumption regarding
ownership may affect the result of this case on remand.
As outlined above, at the time they stipulated to exhibits
concerning extraterritorial boundaries, the parties were
operating under what may have been an incorrect assumption
regarding ownership of the roads at issue. For example,
Boerne asserts that, if abutting property owners have
fee simple title to the centerline of the road, Boerne's
extraterritorial jurisdiction may be greater than its stipulations
at trial. The merit of Boerne's argument should be addressed
V
CONCLUSION
[19] Commissioners courts have limited authority. They
possess only those powers expressly conferred by the Texas
Constitution and the Legislature, and those necessarily
required to perform their delegated duties. By granting
commissioners courts general control over the roads, the
Legislature imposed on them a duty to make the roadways
safe for public *32 travel. Simultaneously, the Legislature
limited their powers to those expressly given or necessary to
fulfill their obligations to the traveling public. Petitioning a
municipality to annex portions of county roads is unrelated
to a commissioners court's specific duty to ensure safe
travel. And, because neither the Texas Constitution nor
the Legislature delegated any power the State may have
to petition a city for annexation to commissioners courts,
those courts cannoton the State's behalfpetition a city
to include county roads within that city's extraterritorial
jurisdiction.
We reverse the court of appeals' judgment and remand the
case to the district court for further proceedings consistent
with this opinion.
Justice SMITH concurred in the judgment only.

Parallel Citations
46 Tex. Sup. Ct. J. 848
Footnotes
Subsequent to this litigation, the Legislature recodified section 81.028 in the Transportation Code. See TEX. TRANSP. CODEE ch.
251. Because there is no substantive change in the statute, we refer to section 81.028the statute in effect at the time the parties'
dispute arose.
Appendix 3

46 Tex. Sup. Ct. J. 848
2
3
4
5
6
7
8
9
10
Extraterritorial jurisdiction is an unincorporated land area that is contiguous to a municipality's corporate boundary. See discussion
infra Part III.A.
Neither San Antonio nor Boerne contend that, even considering the disputed county roads, the area that Boerne seeks to annex is not
contiguous to the otherwise existing extraterritorial jurisdiction of the municipality. TEX. LOC. GOV'T CODEE 42.022(b).
San Antonio also challenged whether, after it passed its ordinance upon first reading, Boerne could acquire jurisdiction over the
same property. The court of appeals held that the first city to actually complete the annexation process acquired jurisdiction over the
property. 61 S.W.3d 571, 576. Because San Antonio did not contest that holding here, we express no opinion on its merits.
Under the Home Rule Amendment, cities having more than five thousand inhabitants may adopt a home rule charter. See TEX.
CONST. art. XI, 5. Adopted in 1912, the home rule amendment altered the longstanding practice of having special charters
individually granted and amended by the legislature for the State's larger cities. Black v. City of Killeen, 78 S.W.3d 686, 692
(Tex.App.-Austin 2002, pet. denied) (quoting 22 David B. Brooks, Texas Practice: Municipal Law and Practice 1.17 (2d ed.1999)).
The amendment effectively created home rule cities as mini-legislatures. Id. Cities adopting a home rule charter have the full power
of self government and look to the Legislature only for limitations on their power. Id. (citing Dallas Merchant's & Concessionaire's
Ass'n v. City of Dallas, 852 S.W.2d 489, 49091 (Tex.1993)). Nonetheless, the Legislature retained the authority to prescribe
limitations on how cities exercised their annexation powers. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (1948)
( The result [of the Home Rule Amendment] is that now it is necessary to look to the acts of the legislature not for grants of power
to such cities but only for limitations on their powers.).
The Municipal Annexation Act is currently codified at chapters 42 and 43 of the Local Government Code.
As discussed more fully in section IV.B infra, the parties originally assumed that the State owned the county roads at issue and
stipulated accordingly to proposed boundaries. Based on San Antonio's original construction of section 42.022(b), San Antonio argued
that, although the State owned such roads, it did not specifically delegate its power to petition for annexation to commissioners
courts; thus, absent this express delegation, a commissioners court could not exercise the State's authority as owner to petition for
annexation. See discussion supra Part III.B.
The State contends that [t]he parties and the court of appeals' assumption that the State is the fee simple owner of the strips of land
occupied by the county roads is incorrect and that the State owns only easements for the roads at issue.
See TEX. LOC. GOV'T CODEE 251.001(b) (A municipality condemning land under this section may take a fee simple title to
the property if the governing body expresses the intention to do so.).
Angelo v. Biscamp, 441 S.W.2d 524, 526 (Tex.1969) ([A] deed to land abutting on a railroad right-of-way conveys title to the center
of the right-of-way unless a contrary intention is expressed in the instrument.); State v. Williams, 161 Tex. 1, 335 S.W.2d 834, 836
(1960) (When a conveyance is made of a piece of property abutting upon a public highway, it is natural to assume, in the absence of
an express reservation to the contrary, that the grantor intended to convey the same with all of the beneficial rights enjoyed by him
in its use.); Humble Oil & Refining Co. v. Blankenburg, 149 Tex. 498, 235 S.W.2d 891, 893 (1951) (dedication of plazas, parks,
streets and alleys to the use and benefit of the public created an easement, not fee simple title); Cox v. Campbell, 135 Tex. 428, 143
S.W.2d 361, 362 (1940) (The established doctrine of the common law is, that a conveyance of land bounded on a public highway,
carries with it the fee to the centre of the road, as part and parcel of the grant. Such is the legal construction of the grant, unless the
inference that it was so intended, is rebutted by the express terms of the grant.).
End of Document
Appendix 3
County of Cameron v. Brown, 80 S.W.3d 549 (2002)

45 Tex. Sup. Ct. J. 680
80 S.W.3d 549
COUNTY OF CAMERON, Petitioner,
v.
Charlene Mills BROWN, individually, Clifton
Linwood Brown, individually and as legal
representatives of The Estate of Nolan Barrett
Brown, deceased, and Jeff Farrington, Respondents.
No. 001020. | Argued Oct. 3,
2001. | Decided May 23, 2002.
| Rehearing Denied Aug. 22, 2002.
Survivors of motorist killed in an automobile accident
filed wrongful death action against the state and county,
claiming that failed block of streetlights at end of a
causeway constituted a premises defect for which the Texas
Tort Claims Act waived governmental immunity. The trial
court granted defendants' jurisdictional pleas and dismissed
survivors' claims. Survivors appealed, and the Court of
Appeals reversed. On review, the Supreme Court, O'Neill, J.,
held that: (1) survivors did not fail to state that county was
in possession of the causeway; (2) significant and unexpected
change in lighting on the causeway was not unforeseeable
as a matter of law; (3) knowledge of the change in lighting
could not be imputed to motorist as matter of law; and (4)
survivors' failure to allege that they did not actually know of
the alleged dangerous condition constituted failure to state a
premises defect claim under Act, although the jurisdictional
defect was not incurable.
Jefferson, J., concurred and filed separate opinion in which
Owen, J., joined.
Rodriguez, J., concurred and filed opinion.
Brian L. Jensen, Jensen Rosen & Steinberg, Houston, David

T. Bright, Watts & Heard, Corpus Christi, Joseph Prestia,
Prestia & Ornelas, Edinburg, for respondent.
Opinion
Justice O'NEILL delivered the opinion of the Court, in which
Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER,
Justice HANKINSON, and Justice RODRIGUEZ joined.
In this wrongful-death action, plaintiffs claim that a failed
block of lights at the end of an elevated and curving causeway,
with narrow shoulders and limited access, suddenly and
unexpectedly plunged motorists into darkness and constituted
a premises defect for which the Texas Tort Claims Act
waives governmental immunity. The trial court ruled that
the plaintiffs' pleadings fail to state a claim under the Act,
and granted the defendants' pleas to the jurisdiction. The
court of appeals reversed, holding that the pleadings and
evidence established a premises defect for which immunity
was waived. 80 S.W.3d 594. We must decide whether the
plaintiffs' pleadings, together with pertinent jurisdictional
evidence, are sufficient to raise a premises-defect claim
within the Act's immunity waiver.
The defendants argue that the failed lighting cannot under
any circumstances constitute a premises defect because
the resulting darkness was open and obvious, and not an
unreasonably dangerous condition. But whether or not that
ultimately proves to be the case, we hold that the pleadings
and jurisdictional evidence do not affirmatively negate the
existence of an unreasonably dangerous condition. Thus, the
trial court should not have dismissed the plaintiffs' claims
on this basis. The plaintiffs' pleadings do fail, however, to
allege another necessary premises-defect elementthat the
plaintiffs did not actually know of the dangerous condition.
Because the plaintiffs must be afforded an opportunity to
amend to remedy this omission, we affirm the court of
appeals' judgment reversing and remanding the case to the
trial court.
Hecht, J., dissented and filed opinion.

*552 George Christian Kraehe, Willette & Guerra,
Brownsville, for petitioner.
I. Background
This case arises from an auto accident that occurred on
the Queen Isabella Causeway, which is the only bridge
connecting *553 South Padre Island to the Texas mainland.
Nolan Brown was crossing the causeway at about 3:00 a.m.,
traveling east toward South Padre, when he lost control of his
Appendix 4

45 Tex. Sup. Ct. J. 680
truck. Brown's truck struck the concrete median that separates

the two east-bound lanes from the two west-bound lanes,
skidded, and turned over on its side. When it came to rest,
Brown's passenger exited the vehicle through the sunroof.
While Brown was attempting the same escape, an oncoming
car driven by Hector Mucio Martinez crashed into Brown's
truck. Brown died at the scene.
Specifically, the defendants argued that providing roadway

illumination is a discretionary function, so that they owed
no duty to ensure illumination on the causeway. Defendants
further argued that there was no duty to warn motorists of
the failed lighting because the defective condition, which they
describe as darkness, was open and obvious, and not an
unreasonably dangerous condition as a matter of law.
The record indicates that the causeway curves, has narrow

shoulders, and rises at least 85 feet above the bay. Once
drivers enter the causeway, a concrete median prevents them
from turning around. When the accident in this case occurred,
a block of streetlights on the causeway's eastern section was
not functioning. The first part of the bridge was illuminated
for traffic heading toward South Padre Island, but there was
no illumination at the accidents' scene.
In response, the plaintiffs acknowledged that the defendants

had no initial duty to illuminate the causeway, but claimed
that the decision to install streetlights gave rise to a
nondiscretionary duty to maintain *554 them. Plaintiffs
further responded that, because the causeway entrance was
illuminated, the sudden darkness from the block of failed
lighting came upon drivers unexpectedly, thus leaving the
question of the condition's open and obvious nature for the
jury to consider.
The State owns the causeway and its streetlight system.

However, Cameron County assumed certain maintenance
responsibilities over the causeway's streetlight system under
an agreement with the Texas Department of Transportation
(TxDOT). 1 Correspondence between TxDOT and the
County shows that maintaining the causeway's streetlights
had been a problem since at least 1995. In November of
that year, Kenneth Conway, a county park-system director,
wrote to TxDOT's district engineer that thirty causeway
streetlights were not functioning and presented a serious
safety hazard. In an April 1996 letter to TxDOT, Conway
wrote that inconsistent lighting on the causeway presents a
safety hazard to the traveling public, particularly motorists
who may be stranded in poorly lit sections. By August 1996,
over thirty streetlights had failed, and the record indicates that
at least that many were not functioning a month later when
the accidents occurred.
Brown's survivors sued TxDOT, the County, the contractor
the County hired to repair the streetlights, and Martinez. The
plaintiffs alleged that Brown was stranded in a poorly lit
section of the causeway when he was fatally injured, and
that defective wiring caused the streetlights to fail, creating
an unreasonably dangerous condition. They alleged that the
causeway's condition constituted a premises defect, a special
defect, or a misuse of personal property, for which the
Tort Claims Act waives governmental immunity. Brown's
passenger intervened to seek recovery for his own injuries.
TxDOT and the County filed special exceptions and pleas to
the jurisdiction, arguing that the plaintiffs' allegations failed
to state claims within the Act's sovereign-immunity waiver.
After an evidentiary hearing, and without ruling on the

defendants' special exceptions, the trial court granted the
defendants' jurisdictional pleas, dismissed the claims against
them, and severed them from the underlying claims against
the contractor and Martinez. The court of appeals reversed
the trial court's judgment, holding that (1) maintaining the
causeway's streetlights was not a discretionary function
exempt from the Tort Claims Act's immunity waiver, and
(2) the plaintiffs' allegations and the pertinent jurisdictional
evidence were sufficient to raise a premises-defect claim
under the Act. 80 S.W.3d 594. We granted review to consider
whether the plaintiffs' claims fall within the Tort Claims Act's
sovereign-immunity waiver.
II. The Tort Claims Act

[1]
[2] The State, its agencies, and subdivisions, such
as counties, generally enjoy sovereign immunity from tort
liability unless immunity has been waived. See TEX. CIV.
PRAC. & REM.CODE 101.001(3)(A)(B), 101.025;
Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 611
(Tex.2000). The Tort Claims Act expressly waives sovereign
immunity in three general areas: use of publicly owned
automobiles, premises defects, and injuries arising out of
conditions or use of property. 2 Able, 35 S.W.3d at
611 (quoting Lowe v. Texas Tech Univ., 540 S.W.2d 297,
298 (Tex.1976)). But the Act does not waive immunity
for discretionary decisions, such as whether and what type
of safety features to provide. See TEX. CIV. PRAC. &
Appendix 4

45 Tex. Sup. Ct. J. 680
REM.CODE 101.056; State v. San Miguel, 2 S.W.3d 249,

251 (Tex.1999).
[3] The Act provides that a governmental unit is liable for
injury and death caused by a condition of real property if the
governmental unit would, were it a private person, be liable to
the claimant according to Texas law. TEX. CIV. PRAC. &
REM.CODE 101.021(2). With respect to ordinary premises
defects, however, the Act specifically limits the governmental
duty owed to a claimant to the duty that a private person
owes to a licensee on private property. TEX. CIV. PRAC. &
REM.CODE 101.022(a). Thus, a governmental unit may be
liable for an ordinary premises defect only if a private person
would be liable to a licensee under the same circumstances.
consider only the plaintiffs' pleadings and the evidence

pertinent to the jurisdictional inquiry. Texas Natural Res.
Conservation Comm'n v. White, 46 S.W.3d 864, 868
(Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
55455 (Tex.2000). 3 When we consider a trial court's order

on a plea to the jurisdiction, we construe the pleadings in the
plaintiff's favor and look to the pleader's intent. See Texas
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446
(Tex.1993); Peek v. Equipment Serv. Co. of San Antonio, 779
S.W.2d 802, 80405 (Tex.1989). When a plaintiff fails to
plead facts that establish jurisdiction, but the petition does not
affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiff
should be afforded the opportunity to amend. See Peek, 779
S.W.2d at 80405; Texas Dep't of Corrections v. Herring,
[4]
[5] A licensee asserting a premises-defect claim 513 S.W.2d 6, 910 (Tex.1974). On the other hand, if the
generally must show, first, that the defendant possessed
pleadings affirmatively negate the existence of jurisdiction,
that is, owned, occupied, or controlledthe premises where
then a plea to the jurisdiction may be granted without allowing
the injury occurred. Wilson v. Texas Parks & Wildlife Dep't,
the plaintiff an opportunity to amend. See Peek, 779 S.W.2d
8 S.W.3d 634, 635 (Tex.1999) (per curiam denying petition
at 80405.
for review) (citing City of Denton v. Van Page, 701 S.W.2d
831, 835 (Tex.1986)). A property possessor must not injure
a licensee by willful, wanton, or grossly negligent conduct,
IV. Discussion
and must use ordinary care either to warn a licensee of a
condition that presents an unreasonable risk of harm of which
Defendants argue that, for several reasons, the plaintiffs have
the possessor is actually aware and the licensee is not, or
either failed to allege or their pleadings effectively negate
to make the condition reasonably safe. *555 State Dep't of
certain elements of a premises-defect claim within the Act's
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237
immunity waiver. First, the County contends that it neither
(Tex.1992).
owned nor exercised exclusive control over the causeway or
its streetlight system, and therefore cannot be held liable for
Here, the plaintiffs have not alleged that the defendants
the alleged premises defect. Second, the County contends
injured them willfully or wantonly, or that they were grossly
that the plaintiffs have not alleged a condition posing an
negligent. And although the defendants argue generally, as
unreasonable risk of harm because it was not foreseeable
a policy matter, that the court of appeals' decision impinges
that Brown would lose control of his vehicle and then be
upon governmental units' discretion in deciding whether
struck by a motorist while attempting to exit the wreckage.
and what kind of lighting to install along roadways, they
Third, the defendants claim that any risk of harm presented
do not challenge the court of appeals' holding that the
by the alleged defect was not unreasonable when weighed
plaintiffs' claims in this case are based upon the defendants'
against the burden that governmental entities would face
maintenance of the causeway lighting and thus do not concern
if the defendants here could be held liable for the failed
discretionary acts. Accordingly, we consider only whether the
block of lighting. Fourth, the defendants characterize the
plaintiffs' pleadings and jurisdictional evidence are sufficient
alleged dangerous condition as darkness at night, and argue
to allow them to maintain a premises-defect claim within the
that this condition is so open and obvious that knowledge
Act's immunity waiver.
of the condition should be imputed to causeway motorists.
Finally, the defendants contend that, even if knowledge
of the dangerous condition cannot be *556 imputed to
the plaintiffs, the plaintiffs nevertheless failed to plead an
III. Standard of Review
element necessary to maintain their premises-defect claim,
[6]
[7]
[8] In deciding a plea to the jurisdiction, that is, that they did not actually know of the danger.
a court may not weigh the claims' merits but must
Appendix 4

45 Tex. Sup. Ct. J. 680
Here, focusing on the general danger and the causeway's

particular characteristics, we cannot say that the plaintiffs
A. Possession of the Premises
failed to plead, or that their pleadings affirmatively negate,
[9] [10] The County argues that it cannot be subjected to their premises-liability claim's unreasonable-risk-of-harm
element. As the court of appeals observed, the Causeway is
a premises-liability claim within the Act's immunity waiver
more dangerous than an ordinary road upon the complete
because it neither owned nor exercised exclusive control
failure of a large block of streetlights. 80 S.W.3d at 599.
over the causeway or its streetlight system. See Wilson,
The causeway curves and ascends high above the water, its
8 S.W.3d at 635. But a premises-liability defendant may
shoulders are narrow, and concrete barriers prevent motorists
be held liable for a dangerous condition on the property
who drive onto it from turning around. We cannot say, as
if it assum[ed] control over and responsibility for the
a matter of law, that it is unforeseeable that a significant
premises, even if it did not own or physically occupy the
and unexpected change in lighting at night on a narrow
property. Van Page, 701 S.W.2d at 835; see also Wilson, 8
and curving causeway could impair a motorist's ability to
S.W.3d at 635. The relevant inquiry is whether the defendant
avoid obstacles that lie ahead. While Brown's alleged lack
assumed sufficient control over the part of the premises that
of care may be an issue of comparative responsibility for
presented the alleged danger so that the defendant had the
the jury to decide, see TEX. CIV. PRAC. & REM CODE
responsibility to remedy it. Cf. Van Page, 701 S.W.2d at
33.012, it does not render the subsequent harm in this
83334 (concluding that the city did not assume control over
case unforeseeable. *557 Furthermore, we cannot determine
a storage building, which was on plaintiff's lot and which
from the pleadings and the limited jurisdictional evidence that
housed the alleged dangerous condition). Here, the plaintiffs
Brown was in fact negligent in operating his vehicle.
allege that the County maintained the [causeway] pursuant
to a contract with the State. And it is undisputed that the
Importantly, correspondence in the record reveals that
County assumed certain maintenance responsibilities over the
the defendants themselves knew of the general danger
causeway's streetlight system. Construing the pleadings in the
that the causeway's numerous, nonfunctioning streetlights
plaintiffs' favor, we conclude that they adequately allege the
posed. Kenneth Conway, the County's park-system director,
first element of a premises-liability claimthat the County
described the failed lighting as a serious public safety issue
possessed the property. See id.
and a serious safety hazard. In a letter to TxDOT, Conway
specifically identified the danger posed to motorists stranded
in poorly lit sections of the causeway. The general foreman
B. Foreseeability of Harm
of the contractor hired to repair the lights, too, recognized
[11] [12] [13] A condition poses an unreasonable risk the danger. He wrote in a letter that the causeway's lighting
system posed an [e]xtreme hazard. Considering the pleaded
of harm for premises-defect purposes when there is a
facts and the record evidence, we cannot conclude that the
sufficient probability of a harmful event occurring that
events in question were not foreseeable.
a reasonably prudent person would have foreseen it or
some similar event as likely to happen. Seideneck v.
Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex.1970).
The County contends that the pleaded condition did not
pose an unreasonable risk of harm because a reasonably
prudent person could not have foreseen that a driver such
as Brown would lose control of his vehicle and then, while
exiting the wreckage, be struck by another motorist. But
foreseeability does not require that the exact sequence of
events that produced an injury be foreseeable. See Walker
v. Harris, 924 S.W.2d 375, 377 (Tex.1996); see also Clark
v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970) (stating that
foreseeability prong of proximate cause does not require
that [defendants] anticipate just how injuries will grow out
of [the] dangerous situation). Instead, only the general
danger must be foreseeable. Walker, 924 S.W.2d at 377.
C. Unreasonableness of Risk
[14] The defendants argue that conditions on the causeway
did not present a risk of harm that was unreasonable when
measured against the burden that governmental entities would
face if the County and TxDOT could be held liable in
this case. They contend that allowing the plaintiffs' claims
to proceed will effectively require governmental entities
to either light every stretch of public roadway or remove
all lighting, because any unexpected illumination change
might constitute a premises defect for which they may be
held liable. Governmental entities could face liability, they
claim, for every streetlight that might flicker or go out.
Appendix 4

45 Tex. Sup. Ct. J. 680
But our holding is not so broad. A governmental unit's

sovereign immunity is not waived for failure to install
lighting, which is a discretionary decision, or even for not
repairing lighting that has been installed if an unreasonably
dangerous condition is not thereby created. Our decision rests
upon the causeway's unique characteristics and the nature of
the particular dangerous condition alleged.
The County analogizes the dangerous condition alleged here
to visual obstructions along roadways caused by overgrown
vegetation. We have recognized that holding counties liable
for failing to remove such obstructions could impose a
significant burden on counties. See Jezek v. City of Midland,
605 S.W.2d 544, 54647 (Tex.1980). But the County
misconstrues the plaintiffs' pleadings. Unlike Jezek, the
condition alleged here is not simply a naturally occurring one
that causes a visual obstruction, but rather a malfunctioning
block of artificial lighting that the defendants failed to
maintain, causing a sudden and unexpected change in driving
conditions.
[17] Defendants contend that the dangerous condition here

is nothing but darkness at night, which is so open and
obvious that knowledge of the condition must be imputed
to causeway users. This imputed knowledge, they claim,
negates an essential element of the plaintiffs' premises-defect
claims. See id. But construing the plaintiffs' allegations in
favor of jurisdiction, as we must, the dangerous condition
alleged is not merely darkness but a failed block of artificial
lighting that caused a sudden, unexpected and significant
transition from light to darkness. This condition may or may
not have been open and obvious to ordinary users considering
the causeway's particular characteristics. Specifically, the
record indicates that the causeway is narrow, curves, and
rises high above the bay. A cement median barrier separates
the two travel lanes in each direction and prevents drivers
from turning back once embarking upon the bridge. Only a
relatively narrow shoulder beside the traffic lanes is available
to accommodate vehicles in emergency situations.
On the evening in question, the causeway was lit at the

point of entry, but there was no illumination further along
the causeway at the accident scene. The relevant inquiry
is whether the lighting failure was open and obvious to
D. Knowledge of the Condition
motorists entering the causeway, because that is the point at
[15] [16] Tort law has long recognized that a landowner which they could choose to avoid the condition or otherwise
protect themselves. Cf. Harvey v. Seale, 362 S.W.2d 310,
has a privilege to make use of the land for his own benefit,
312 (Tex.1962) (stating that a licensee can remain off
and according to his own desires. PROSSER & KEETON,
the
premises if he does not wish to subject himself to
PROSSER & KEETON ON TORTS 57, at 386 (Lawyers'
the risk of injury from an open and obvious condition).
ed. 1984). The extent of that privilege, however, varies
Construing the pleadings and the jurisdictional evidence in
depending upon the character of the owner's consent to others'
the plaintiffs' favor, and considering the causeway's particular
entry on the premises. See RESTATEMENT (SECOND) OF
characteristics, we cannot say that sudden darkness created
TORTS 342 cmt. h. Because a licensee enters for his or
by the failed lighting at the accident scene was a danger open
her own purposes, [h]e has no right to demand that the land
and obvious to motorists entering the illuminated causeway
be made safe for his reception, and he must in general ...
so that knowledge of the condition should be imputed to them
look out for himself. PROSSER & KEETON, PROSSER &
as a matter of law. Accordingly, we cannot conclude that the
KEETON ON TORTS 60, at 412 (Lawyers' ed. 1984). If a
pleadings affirmatively negate the plaintiffs' lack of actual
licensee is aware of a dangerous condition, he has all that he
knowledge.
is entitled to expect, that is, an opportunity for an intelligent
choice as to whether the advantage to be gained by coming
on the *558 land is sufficient to justify him in incurring the
risks involved. RESTATEMENT (SECOND) OF TORTS
2. Actual Knowledge
342 cmt. l. Thus, to establish liability for a premises defect,
a licensee must prove that he or she did not actually know of
[18] The defendants contend that, even if we cannot impute
the condition. See Payne, 838 S.W.2d at 237.
knowledge of the alleged dangerous condition from the
pleadings, the plaintiffs failed to plead that they did not
1. Imputed Knowledge
actually know of the condition. 4 The defendants contend

that the trial court's dismissal order should be upheld on
this basis. We agree that the plaintiffs failed to allege this
necessary premises-defect element. Moreover, we disagree
Appendix 4

45 Tex. Sup. Ct. J. 680
with the court of appeals' conclusion that we can infer this

element from the pleadings.
Nevertheless, the court of appeals did not err in reversing
the trial court's judgment and remanding, because the
plaintiffs' *559 pleadings do not affirmatively demonstrate
an incurable jurisdictional defect, but merely a pleading
deficiency. Because the trial court did not rule on the
defendants' special exceptions and allow the plaintiffs an
opportunity to amend their pleadings, omitting this element
cannot support the trial court's judgment. See Herring, 513
S.W.2d at 910 (holding that when the allegations do not
affirmatively negate a claim, dismissal for failure to state
a claim is appropriate only when the plaintiff has been
given an opportunity to amend after special exceptions have
been sustained); see also 7 WILLIAM V. DORSANEO
III, TEXAS LITIGATION GUIDE 70.03[4][f] (stating
that after a trial court sustains special exceptions, the
pleader must be given, as a matter of right, an opportunity
to amend). Accordingly, we affirm the court of appeals'
judgment reversing and remanding the case, because the
plaintiffs should be afforded an opportunity to amend their
pleadings.
V. Conclusion
We hold that, considering the causeway's particular
characteristics, the large block of nonfunctioning streetlights,
and the defendants' own knowledge of the danger to causeway
users, the pleadings do not affirmatively negate the existence
of an unreasonably dangerous condition. We conclude,
however, that the plaintiffs failed to plead that they did
not actually know of the dangerous condition, an element
necessary to prove a premises-defect claim. Because this
pleading defect is one for which the plaintiffs should be
afforded an opportunity to amend, we affirm the court of
appeals' judgment reversing the trial court's dismissal for lack
of jurisdiction and remanding the case to the trial court.
Justice JEFFERSON filed a concurring opinion, in which

Justice OWEN joined.
Justice RODRIGUEZ filed a concurring opinion.
Justice HECHT filed a dissenting opinion.
Justice JEFFERSON, joined by Justice OWEN, concurring in

the judgment.
The Court holds that the unique characteristics of the
causeway constitute an unreasonably dangerous condition
for which governmental entities may be liable under the
Texas Tort Claims Act. But the Court never articulates a
principle to identify in future cases the characteristics that
will give rise to a cause of action within the terms of the
Act. In this area of governmental immunity, the Court's I
know it when I see it analysis exacts too great a price. The
resulting uncertainty from the Court's lack of guidance will,
I fear, inundate courts with claims against state and local
governments for what amounts to discretionary decisions
involving the design and illumination of Texas roadways. In
my view, this uncertainty is unwarranted because darkness
is not an unreasonably dangerous condition. Thus, I would
hold that the respondents have failed to state a cause of action
under the Torts Claims Act. But because the respondents'
pleadings do not negate jurisdiction, I respectfully concur in
the Court's judgment only.
Certainly, the facts of the case are disturbing. The accident
occurred on the South Padre Island Causeway, a lengthy
stretch of elevated, curving highway connecting a major
tourist destination to the mainland. Although continuous
illumination was installed along the route, on the night of
the accident a bank of lights was not functioning. They had
been malfunctioning for some time, and the County's parksystem director considered this fact to be a serious safety
hazard. Nolan Brown lost control of his truck at that site
*560 and the truck hit a median and overturned. Another
vehicle crashed into the overturned truck, resulting in Brown's
death. These tragic facts are unique, but then, so are the facts
of many other accidents.
The Court identifies a number of factors that purportedly
distinguish this case from other thoroughfares. We are told,
for example, that this case involves a causeway that curves
and ascends, has narrow shoulders, concrete barriers, and a
block of malfunctioning lights that caused a sudden and
unexpected change in driving conditions. 80 S.W.3d 557.
Although the number of causeways in this State are relatively
few, the remaining factors, alone or in combination, describe
highways and byways in every county and city throughout the
State.
Public roads are generally constructed, owned, and
maintained by governmental entities. For that reason, those
entities are potential defendants in nearly every automotive
Appendix 4

45 Tex. Sup. Ct. J. 680
accident case. In many cases, competent attorneys can argue

plausibly that the circumstances in their client's case are at
least as unique as the circumstances here. Because the Court's
opinion does not identify any limiting principle, accidents
on roads with defective illumination, curves or hills, or with
concrete barriers or narrow shoulders, will be sure to inspire
litigation in which County of Cameron will become the
standard rebuttal to jurisdictional pleas.
The installation of roadway lighting is a discretionary
decision that governmental agencies balance along with
other resource-allocation decisions. No statute requires that
governmental entities provide roadway lighting. And no
statute requires governmental entities to warn of absent
lighting or changed conditions of roadway lighting. The
Legislature has entrusted these matters to governmental
discretion. But beginning today, governmental entities must
exercise this discretion at their peril.
After today, governmental entities will balance the decision
to illuminate roadways against the real possibility that those
lights, once installed, might fail and thrust drivers into
sudden darkness at night. They will weigh the social utility
of additional lighting against the very real threat that scarce
resources will be spent defending claims involving accidents
where some segment of those lights has malfunctioned.
Assuming those entities are risk averse, the prudent course
may well be to adopt a conservative stance and reduce or
eliminate highway-lighting initiatives. However, this Court
should not impose that Hobson's choice on governmental
entities.
More than two decades ago, in Jezek v. City of Midland, 605
S.W.2d 544 (Tex.1980), this Court recognized the obvious
dangers in imposing a similar duty on counties. We stated:
It would be a rigorous burden indeed for a rural county
in a state such as Texas to police and remove vegetation
from roads when they cause visual obstruction. Id. at 547.
But today, instead of reaffirming what we said in Jezek, the
Court attempts to distinguish this case because the condition
alleged here is not simply a naturally occurring one that
causes a visual obstruction, but rather a malfunctioning block
of artificial lighting that the defendants failed to maintain....
80 S.W.3d 557. I am not persuaded by the Court's distinction.
Darkness is certainly naturally occurring and a governmental
entity's failed attempts to protect against the dangers posed by
darkness do not create an unreasonably dangerous condition.
At some point along every highway, streetlights end, plunging
drivers into darkness. And requiring governmental entities to
shield drivers from every transition from light to dark along

a roadway would be a heavy burden indeed.
*561 Today's decision is even more alarming because,
under the Court's analysis the ultimate questionwhether
the roadway is unreasonably dangerousis answered not
only by the existence of malfunctioning lights, but also
by the extent to which the roadway has hills or curves,
barriers or narrow shoulders. Because these roadway design
decisions are discretionary, they should not be used to aid
in establishing liability. State v. Rodriguez, 985 S.W.2d
83, 85 (Tex.1999) (Design of any public work, such as a
roadway, is a discretionary function involving many policy
decisions, and the governmental entity responsible may not
be sued for such decisions.). While I do not believe the
Court intends to impose liability for discretionary acts, the
absence of any principled basis for limiting the scope of the
Court's opinion is deeply troublesome and will undoubtedly
jeopardize discretionary road-design decisions.
Some areas of the law permit case-by-case development,
leaving it to later courts to discern any emerging pattern. But
in my view, it is unnecessary in this area of the law. Darkness,
however characterized, cannot constitute an unreasonably
dangerous condition. The harm to our jurisprudence of so
holding is simply too great. We generally allow litigants to
amend to cure pleading defects when the pleadings do not
allege enough jurisdictional facts. Texas Ass'n of Bus. v. Texas
Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). While it
may be unlikely that the respondents will be able to plead
sufficient jurisdictional facts, they should be allowed that
opportunity. For this reason only, I concur in the Court's
judgment.
Justice RODRIGUEZ, concurring.

The plaintiffs acknowledge that the governmental defendants
were not required by any law to illuminate the causeway.
Their initial decision to illuminate the highway was a
discretionary act. CIV. PRAC. & REM.CODE 101.056.
The question then arises: after a governmental unit decides to
install streetlights, does it have a duty to ensure that the lights
work properly?
The Court decides, and I agree, that the plaintiffs' pleadings
and the evidence in this case are sufficient to raise a premises
defect claim. If a claim arises from a premise defect, the
governmental unit owes to the claimant only the duty that a
private person owes to a licensee on private property.... Id.
Appendix 4

45 Tex. Sup. Ct. J. 680
101.022(a). We have previously stated in City of Grapevine

v. Roberts, 946 S.W.2d 841 (Tex.1997), that:
[i]f the condition was an ordinary
premise defect, the [governmental
unit] owed [the plaintiff] the same
duty that a private landowner owes
a licensee. Generally, the duty a
landowner owes a licensee is not to
injure the licensee through willful,
wanton, or grossly negligent conduct.
An exception to the general rule is that
if the landowner has knowledge of a
dangerous condition and the licensee
does not, the landowner has a duty
either to warn the licensee or to make
the condition reasonably safe.
Id. at 843 (citations omitted). I agree that the governmental
units knew that the lights were not working properly. I
also agree that Brown should be afforded the opportunity to
replead regarding whether he did not actually know about the
allegedly dangerous condition.
I write separately, however, to state that I join in the
judgment because our current law mandates this result. I
share, however, the concerns expressed by JUSTICE HECHT
that the burden on the governments of Texas will be felt
by this opinion. It should be noted that the Texas Department
of Transportation reports that there are approximately 79,297
centerline *562 miles of roads and highways maintained
by the State. 1 In addition, there are 142,170 miles of county
roads in Texas. 2
Whether to install lights in the first instance is an exercise
of the government's discretion. But once having done so, the
maintenance of such a lighting system is ministerial and does
not afford immunity from liability. This leads to the absurd
result that when a governmental unit builds new roads or
streets it should decide not to light them.
The Court's opinion is limited to deciding whether a plea
to the jurisdiction was properly granted, and it does not
subject the governmental defendants to any liability. Upon
remand, Brown will still need to cure his pleading defect
and establish causation. The problem that exists, however,
is that numerous other governmental defendants will now
incur substantial litigation costs ascertaining when bulbs in
exterior light fixtures burned out, what caused the light bulbs
to burn out, and whether the bulbs have been burned out for
so long that the governmental entity should have discovered
that fact and replaced them. Plaintiffs will second guess (1)
when government employees should have arrived to do the
necessary repairs, (2) whether the governmental employees
should have erected temporary signs, and (3) how many
employees should have been dispatched to work on the lights.
See City of Baytown v. Peoples, 9 S.W.3d 391 (Tex.App.
Houston [14th Dist.] 1999, no pet.).
In Tarrant County Water Control & Improvement District
No. 1 v. Crossland, 781 S.W.2d 427 (Tex.App.Ft. Worth
1989, writ denied), the plaintiffs were fatally injured in a
nighttime boating accident. There is a bridge in the portion
of the reservoir where they were killed. A boat must slow
down to sit lower in the water in order to go safely under
the bridge because of the amount of clearance between the
water and the underside of the bridge. Id. at 430. The plaintiffs
were killed when their heads struck the underside of the
bridge. Id. The plaintiffs' estates argued that the bridge and
reservoir areas should have been lighted and that warning
signs should have been provided. In reversing a jury award
of over $1.2 million, the court of appeals noted that the
plaintiffs did not point to any specific act or omission other
than the lack of lights at the bridge. Id. at 432. The Second
Court of Appeals noted that the decedents faced the most
common and obvious danger known to man, darkness. Id.
at 435. The Second Court of Appeals further observed why
[should] the bridge ... be considered more dangerous than any
other unlighted recreational area. With 4,790 square miles of
inland water and more than 200 major reservoirs, Texas ranks
second behind Minnesota for the most inland water among
the continental states.... In summary, vast areas of Texas are
devoid of artificial illumination, and the State has no duty to
light the great outdoors. Id. 3
The Second Court of Appeals was correct. There is no duty
to light the vast areas of Texas and the 300,000 plus
miles of highways, roads, and streets in this State. Ironically,
the Court's opinion today *563 provides no incentive for
governmental units to increase public safety in that regard. I
defer to the Legislature to act upon the County's public policy
arguments regarding the financial burden that may be placed
on counties to maintain all exterior lighting.
Justice HECHT, dissenting.

Assume for me, if you will, that all roadways that are dark
at night are unreasonably dangerous. This is hard, I know,
Appendix 4

45 Tex. Sup. Ct. J. 680
since almost all of the roadways in the world are dark at night,
and for that reason most cars are equipped with headlamps.
But assume that darkness at night is unreasonably dangerous
so that we can take that issue off the table. (As an aside,
I should point out that sunshine can also make a roadway
unreasonably dangerous because it gets in your eyes; but that
is not this case, and the Court wisely reserves that issue for, as
it were, another day.) Before a governmental entity in Texas
can be liable for an unreasonably dangerous condition in a
roadway, there must be proof either that the condition was a
special defectlike an excavation or obstruction 1 or that
the plaintiff did not know of the condition. 2 Since nighttime
darkness is nothing like an excavation or obstruction, Texas
law leaves a plaintiff but one avenue (if you will) of recovery
for damages caused by the relatively regular going down of
the sun, and that is to prove that he could not see that it was
dark.
Now one might say: well, that's impossible; any fool driving
along can tell by looking whether a roadway is light or dark.
But the Supreme Court of Texas is not any fool; it has an easy
answer for such skepticism when the dangerous condition
alleged is not merely darkness' but a failed block of artificial
lighting that caused a sudden, unexpected and significant
transition from light to darkness. 3 Mind you, no one claims
in this case that he was driving along and the roadway lighting
suddenly went off. The lights had been off for awhile, long
enough for Cameron County to know about it; if that were
not true, the County would not be liable for the darkness for
another reason, and that is that it did not know the lights
were out. 4 But Cameron County knew the lights were out
on a section of the Queen Isabella Causeway for the same
reason that Nolan Brown and Hector Martinez and anyone
else driving along, or anyone else who just looked, knew
it: because it was dark there. So when the Court says the
darkness was sudden, it means nothing more than that the
causeway was lighted for a stretch, and then for a stretch
it wasn't. By saying that the darkness was unexpected, I
suppose the Court means that Brown and Martinez had not
anticipated as they were driving along that the lights might
be out. But when they came upon the darkness, they surely
must have thought to themselves, Hmmm, the highway's
dark here, just as if they had come to the end of any
lighted roadway. So however unexpected the darkness may
have been, it was still plain as day, so to speak. And when
the Court says the transition from light to darkness was
significant, I confess I haven't a clue what it means. The
distinction between darkness that is significant and plain

old insignificant darkness is lost on me.
It seems obvious that any driver moving down the road
can see whether it is dark *564 no matter how sudden,
unexpected and significant that darkness is, so I don't quite
see what difference any of this makes to whether the plaintiff
can prove that he did not know that an obviously dark
roadway was dark. Either he could see the road was dark or he
couldn't, and how is it possible that he couldn't and be licensed
to drive? It look lighted but it really wasn't? Well, the Court
says, it was the condition of the causeway that made all the
difference.
[T]he causeway is narrow, curves,
and rises high above the bay. A
cement median barrier separates the
two travel lanes in each direction
and prevents drivers from turning
back once embarking upon the bridge.
Only a relatively narrow shoulder
beside the traffic lanes is available to
accommodate vehicles in emergency
situations. 5
I must say that I cannot quite grasp the Court's point here.
The conditions of the unlighted causeway may have made
it unreasonably dangerous, but we have already assumed
(against all common sense) that every unlighted roadway is
unreasonably dangerous, even a straight, wide, flat, low one.
The issue is not how narrow or curvy or high a roadway is, or
how many lanes it has or how wide its shoulder is; the issue
is whether a driver can see that it's dark or not. Dark, narrow
roadways look just as dark as dark, wide roadways. Widening
roads, or straightening them up, or leveling them off, or giving
them shoulders does not lighten them up very much.
Like any driver on any unlighted roadway in the world,
Brown should have known when he came upon the dark
part of the causeway that if he stopped for some reason, a
driver coming along behind him might plough into him, and
Martinez should have known that if he outran his headlights,
he might hit something. But, again, none of this has anything
to do with whether a driver coming up on a dark road can
see that it's dark, which determines whether the plaintiffs can
possibly win this case.
So is there any point to this part of the Court's discussion? No.
Then why is it in the opinion? I can't say. Wholly apart from
Appendix 4

45 Tex. Sup. Ct. J. 680
everything that's been said so far, [t]he relevant inquiry,

the Court says, is whether the lighting failure was open and
obvious to motorists entering the causeway, because that is
the point at which they could choose to avoid the condition
or otherwise protect themselves. 6 Now, at last, we're onto
something. This at least makes sense. All the plaintiffs must
prove in this case is that when Brown entered the causeway,
he could not see far enough ahead to know that some of the
lights were out. He has not pleaded this, the Court says, but
he should be allowed to amend. Well, I for one am strongly
in favor of a reasonable opportunity to amend. I do not favor
waiver of valid claims and defenses because of the inadvertent
mistakes inevitable for even the ablest counsel. But there's
no point in having the plaintiffs amend their pleadings if
they're still going to lose as a matter of law. Amendment is
futile unless, if they allege that Brown did not know when
he entered the causeway that some of it was not lighted, they
can prevail. Is that allegation, if proved, sufficient to make
the County liable for the darkness? Yes, says the Court. Well,
then, the County should just pay up. Unless it can prove
that Brown had super-vision (including x-ray vision to see
through the bridge) or was clairvoyant, it can't possibly escape
liability, because no one but Superman and Nostradamus
could *565 possibly have known, entering the causeway,
that the lights were out ahead. (I assume, as we all must, that
Brown hadn't been over the causeway enough at night to know
that sometimes the lights were out, and that even if he had, he
had every reasonable expectation that the lights would have
been fixed since his last crossing.)
To put the Court's holding as plainly as possible: Had the
causeway been wider, flatter, or straighter, and had it had
wider shoulders, Brown could either have looked down the
road and seen that it was dark in one spot and then turned
back, or pulled over, or somehow stayed in the light (even
though he did not know he needed to because he did not know
he was about to wreck his truck on the concrete barrier in
the median), but he could do none of those things; and even
though Brown saw the darkness when he came upon it, it
was sudden, unexpected, and significant, and besides, he did
not know of the darkness when he entered the causeway; so
therefore the County is liable. Logic does not flow through
this like a quiet stream, I know, but I am trying to restate
the Court's position as accurately as I can. Even if this rule,
bizarre as it is, were correct, I am at a loss to understand
its application to this case. What difference could it possibly
have made to Brown had he known when he entered the
causeway that part of it was unlit? He never thought he was
going to wreck his truck, in the darkness or the light. No
reasonable driver could possibly have thought, well, if part

of this causeway is dark and I wreck my vehicle there, others
may not be able to see me, so I'll cross if it's lit, but if it's not,
I'm staying on the mainland.
The relevant inquiry posited by the Court raises the
precise concern expressed by the County as well as
amici curiae, the Texas Municipal League, the Texas City
Attorneys Association, and the Texas Municipal League
Intergovernmental Risk Pool, which is, as the Court
recognizes, that allowing the plaintiffs' claims to proceed
will effectively require governmental entities to either light
every stretch of public roadway or remove all lighting,
because any unexpected illumination change might constitute
a premise defect for which they may be held liable. 7 The
Court never dismisses this concern because, truth to tell,
it's valid. How often will it happen that a driver enters a
lighted portion of a roadway without being able to see a dark
spot ahead? Lots. And what difference does it make whether
lights are out or whether the lighted portion has just ended?
Most drivers still won't know, when they start out, where the
darkness is up ahead. So if the Court means what it says today,
and [t]he relevant inquiry is what a driver can see when he
first enters a lighted roadway, then the governments of Texas
simply need to redo their budgets or raise taxes or both to
cover the costs of extra lighting and litigation like this.
And if that's what the Court thinks, why not just say so? Why
not just say: Look, if you choose to light a roadway, you must
maintain the lighting or face liability for accidents that happen
in areas of darkness. Two reasons, I suppose. One, such a rule
of liability could move governments not to light roadways at
all rather than face liability for inevitable lighting failures,
thereby placing the traveling public in greater danger. And
two, the rule cannot take into account that lighting must end
somewhere, and why the effect of that darkness on motorists
is any different from failed lighting is inexplicable.
It may be, howeverone cannot always tell for surethat
the Court does not really *566 mean what it says. Indeed,
in another case decided today, Rocor International, Inc. v.
National Union Fire Insurance Co., 8 the Court discloses that
it did not really mean what it said in American Physicians
Insurance Exchange v. Garcia. 9 So it does happen, much too
often, and it may be that this case is just another restricted
railroad ticket, good for this day and train only. 10 While
we can't say that all highways should be lighted, or even that
existing lighting should be repaired, maybe the plaintiffs in
Appendix 4
10

45 Tex. Sup. Ct. J. 680
this undeniably tragic case will get something in settlement.

This occasional propensity of the Court to try to help out
a particularly sympathetic litigant without destroying the
law emerged in an oral argument not long ago. Professor
Laurence H. Tribe, arguing a case in this Court, was actually
asked, Can't we just have a rule for this case alone without
implicating other, similar cases? Not and be a court, he
replied, more than a little surprised. If the Court's relevant
inquiry is for real, then the law of premises liability has been
changed fairly significantlylike light to dark. The burden

on the governments of Texas will be felt, and we should just
say so. If not, then we have not acted like a court.
Either way, I respectfully dissent.
Parallel Citations
45 Tex. Sup. Ct. J. 680
Footnotes
1
2
3
4
1
2
3
1
2
3
4
5
6
7
8
9
10
Among themselves, TxDOT and the County disputed their respective responsibilities under the maintenance agreement.
The lower courts did not consider this issue, nor do the parties raise it here.
Although the plaintiffs alleged that the causeway's failed lighting constituted a premises defect, a special defect, and
a misuse of tangible property, the court of appeals considered only their premises-defect claim. Here, too, the parties
focus almost exclusively on that claim. Thus, we consider only whether the pleadings and jurisdictional evidence raise
a premises-defect claim within the Act's sovereign-immunity waiver.
The County argues that the court of appeals erred in considering evidence outside of the pleadings in reviewing the pleas
to the jurisdiction. Given our holdings in Bland and White, which the County does not cite, this argument has no merit.
Bland, 34 S.W.3d at 55455; White, 46 S.W.3d at 868.
At oral argument, plaintiffs suggested for the first time that the relevant inquiry is not whether Brown actually knew of
the dangerous condition, but whether Martinez, the motorist who struck him, knew. While it is true that Martinez is also
a licensee, the ultimate issue is whether the defendants acted reasonably toward Brown and his passenger. Thus, the
proper focus is whether the plaintiffs themselves actually knew of the alleged dangerous condition.
Pocket Facts, Texas Department of Transportation (March 2002).
Id.
Indeed, in Jezek v. City of Midland, 605 S.W.2d 544 (Tex.1980), this Court similarly recognized that counties did not
have a duty to clear or warn of vegetation that obstructed a driver's vision. We stated: It would be a rigorous burden
indeed for a rural county in a state such as Texas to police and remove vegetation from roads when they cause visual
obstruction. Id. at 547.
TEX. CIV. PRAC. & REM.CODE 101.022(b); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238
(Tex.1992).
Payne, 838 S.W.2d at 237.
Ante at 558 (emphasis added).
Payne, 838 S.W.2d at 237.
Ante at 558.
Ante at 558.
Ante at 557.
77 S.W.3d 253 (Tex.2002).
876 S.W.2d 842 (Tex.1994).
Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (Roberts, J., dissenting).
End of Document
Appendix 4
11
Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177 (1988)
750 S.W.2d 177

DOCTORS HOSPITAL FACILITIES, d/
b/a Doctors Hospital et al., Petitioners,
v.
FIFTH COURT OF APPEALS et al., Respondents.
No. C6577.
S.W.2d at 245. In the unpublished opinion, the court reversed

a judgment n.o.v. in favor of Doctors Hospital and rendered
*178 judgment on the jury verdict, subject to suggested
remittiturs by the plaintiffs. Both parties filed timely motions
for rehearing. The motion filed by Doctors Hospital was
overruled. The court sustained one of the four points of
error in the Roses' Motion for Rehearing, and overruled the
remaining three. After the Roses had filed the suggested
remittiturs, the court rendered a new judgment.
May 18, 1988.
Party sought writ of mandamus to compel Court of Appeals to

rule on its motion for rehearing. The Supreme Court, Wallace,
J., held that Court of Appeals had jurisdiction to rule upon
party's timely filed motion for rehearing, notwithstanding
that opposing party has filed application for writ of error in
Supreme Court.
Ordered accordingly.

*177 R. Brent Cooper and Michael W. Huddleston, Cowles
& Thompson, Robert A. Gwinn and Kenneth C. Stone, Gwinn
& Roby, Dallas, for petitioners.
W. James Kronzer, Houston, Douglas D. Mulder, Dallas,
Ronald D. Krist, Krist, Gunn, Weller, Neumann & Morrison,
Houston, John H. Hagler, Dallas, for respondents.
Opinion
WALLACE, Justice.
The issue in this original proceeding is whether a court
of appeals has the power to rule upon a party's timely
filed motion for rehearing, after an application for writ
of error has already been filed by the opposing party.
Relators, collectively referred to as Doctors Hospital, were
the Appellees in a cause before the Fifth Court of Appeals,
and are the Respondents in that same cause now pending in
this court. Rose v. Doctors Hospital Facilities, 735 S.W.2d
244 (Tex.App.Dallas 1987, writ granted). Doctors Hospital
has filed a Petition for Writ of Mandamus, requesting us to
compel the lower court to rule upon its Motion for Rehearing
so that we may pass upon the points of error raised in that
motion. We conditionally grant the writ.
On February 9, 1987, the court of appeals issued two opinions
in this cause, one published and one unpublished. See 735
After rendition of this judgment, Doctors Hospital filed a

Second Motion for Rehearing, complaining that the court
should have remanded the cause for a new trial because the
Roses had filed conditional remittiturs. However, before
the court of appeals had ruled upon Doctors Hospital's Second
Motion for Rehearing, the Roses filed an Application for
Writ of Error. In an unpublished order, the court of appeals
held that the Motion for Rehearing should be dismissed for
want of jurisdiction. Apparently, the court of appeals was of
the opinion that the filing of an application for writ of error
wholly divested it of jurisdiction over the cause. Cf. Johnson
v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605,
6078 (1935).
[1] [2] This court has no jurisdiction of a party's application
for writ of error unless and until a motion for rehearing has
been filed in and overruled by the court of appeals. Oil Field
Haulers Ass'n v. Railroad Commission, 381 S.W.2d 183, 187
(Tex.1964). Further, we are precluded from considering a
point of error not presented in such a motion to the lower
court. TEX.R.APP.P. 131(3). Each time the court of appeals
vacates one judgment and substitutes another, a party affected
by the subsequent judgment is entitled to and should file
another motion for rehearing. Stoner v. Massey, 586 S.W.2d
843, 845 (Tex.1979); Bain Peanut Co. of Texas v. Pinson &
Guyger, 119 Tex. 572, 34 S.W.2d 1090 (1931). If an error
should occur on or after a rehearing in that court, a subsequent
motion for rehearing must be filed in order to preserve the
error for consideration by this court. Stoner, 586 S.W.2d at
845; Bain Peanut, 34 S.W.2d at 1091.
Doctors Hospital's complaints regarding the nature of the
Roses' remittiturs did not arise until after its First Motion
for Rehearing had been filed and the Roses had filed their
remittiturs. Thus, it was incumbent upon Doctors Hospital
to raise these complaints in a Second Motion for Rehearing,
if it sought to invoke this court's jurisdiction over those
complaints. Since Doctors Hospital filed the Second Motion
for Rehearing in a timely manner, it did everything required
Appendix 5
of it to ensure that its right to appeal to this court would

not be lost. See TEX.R.APP.P. 100(a) (Vernon 1988). Yet,
according to the court of appeals, Doctors Hospital was
deprived of this right simply because the opposing parties
availed themselves of it first.
[3] There are three requisites for a mandamus: a legal duty
to perform a nondiscretionary act, a demand for performance,
and a refusal. We have previously held that mandamus will
lie to compel a clerk of a court of appeals to file a motion
for rehearing if a motion is timely presented to the clerk and
filing is denied. Stoner, 586 S.W.2d at 846 and authorities
cited therein. Since Doctors Hospital filed a timely motion for
rehearing and the court of appeals has refused to rule upon it,
there can be no question that there has been both a demand
for performance and a refusal. The sole inquiry is whether the
court below had a legal duty to rule upon the motion.
In Stoner, we held that a court of appeals has no authority to
refuse a litigant the right to file a motion for rehearing. 586
S.W.2d at 846; see also Cowan v. Fourth Court of Appeals,
722 S.W.2d 140 (Tex.1987). If a party has the right to file a
motion for rehearing in the court of appeals, and that court
has no discretion to deny that right, then surely it must follow
that the court cannot refuse to rule upon it. Since a timely
motion for rehearing must be both filed and overruled by the
court of appeals before our jurisdiction will attach, the right
to file a motion for rehearing would be without any value
whatsoever if the court had no duty to act upon it. That duty
is clearly expressed in TEX.R.APP.P. *179 100(c), which
dictates that the court of appeals shall either grant or overrule
the motion, depending upon its view of the merits.
However, it is equally clear that a court has no power, and
hence no duty, to rule upon a matter over which it has no
jurisdiction. The issue thus depends on whether the court of
appeals had jurisdiction to rule upon the motion for rehearing
after the Roses had filed their application. If the court retained
such jurisdiction, then it was under a mandatory duty to
exercise it. If it lacked such jurisdiction, it could take no
further action.
[4] We hold that the court of appeals had jurisdiction
to rule upon Doctors Hospital's Motion for Rehearing,
notwithstanding the fact that an application for writ of error
had been filed. In so holding, we recognize that when an
application for writ of error is filed in this court, this court
generally acquires jurisdiction over the case to the exclusion
of all other courts. Ammex Warehouse Co. v. Archer, 381
S.W.2d 478, 482 (Tex.1964). We also acknowledge the

general principle that a lower court has no power to vacate or
change its judgment in a case, after the plenary jurisdiction
of a higher tribunal has attached. Robertson v. Ranger Ins.
Co., 689 S.W.2d 209, 210 (Tex.1985); Carrillo v. State, 480
S.W.2d 612, 616 (Tex.1972). However, there is no basis for
applying these principles to the situation presented in this
case.
The rules expressed in Ammex, Robertson and Carrillo rest
upon the more basic principle that one court should not
interfere with the jurisdiction of another, especially when
the latter is a higher tribunal. This principle is, of course,
necessary to the orderly and efficient administration of
justice. However, justice is not served by a rule that allows
one litigant to deprive the other of the right to invoke the
appellate jurisdiction of this court, merely by invoking it
first. Moreover, a ruling by the court of appeals on Doctors
Hospital's Second Motion for Rehearing would not interfere
with the jurisdiction of this court. In fact, such a ruling would
facilitate and indeed provide a necessary predicate for the
exercise of our jurisdiction, since we have no power to rule
upon the matters required to be raised in that motion in the
absence of such a ruling. Oil Field Haulers, 381 S.W.2d at
187. With respect to the points Doctors Hospital was required
to raise in a second motion for rehearing, our jurisdiction
simply has not attached. Therefore, there is no basis for
applying the rule expressed in the above cases, and we can
perceive no reasonable purpose that would be subserved by
sanctioning the result of the court of appeals' holding.
We have long recognized that the right of access to an
appellate tribunal is a valuable one, constitutionally protected
against arbitrary or unreasonable abrogation. Dillingham v.
Putnam, 14 S.W. 303 (Tex.1890). To be sure, our rules of
appellate procedure place some restrictions upon that right,
but these restrictions are valid in that they serve to provide
a more orderly and efficient judicial system. However, when
the general rule that a lower court can take no further action
after our jurisdiction has been invoked is applied to the facts
of this case, the result is an unreasonable and arbitrary denial
of a litigant's right of appellate review. The court of appeals'
express holding was that it had no jurisdiction to rule upon
Doctors Hospitals' complaints, and the end result of that
holding is that we have no jurisdiction to rule upon these
matters either. In light of the foregoing analysis, this holding
is not in consonance with the constitutionally protected right
of access to an appellate court. TEX. CONST. art I, 13.
Appendix 5
We recognize that language in Johnson v. Sovereign Camp,

W.O.W., countenances the result reached by the court of
appeals. However, that case has been rightly criticized as
obviously unjust. Ratcliff v. National County Mutual Fire
Ins. Co., 745 S.W.2d 75, 77 (Tex.App.Dallas 1988, writ
dism'd w.o.j.). We overrule Johnson, to the extent that it
conflicts with our decision in this case.
End of Document
In light of our opinion today, we are confident that the court

below will vacate its order dismissing Doctors Hospital's
Motion *180 for Rehearing for want of jurisdiction. The
writ of mandamus will issue only if the court fails to do so.
Action in Rose v. Doctors Hospital Facilities, C6535, will
be held in abeyance pending final disposition of the Motion
for Rehearing in this matter by the Fifth Court of Appeals.
Appendix 5
GTE Communications Systems Corp. v. Tanner, 856 S.W.2d 725 (1993)
856 S.W.2d 725

GTE COMMUNICATIONS
SYSTEMS CORPORATION, Relator,
v.
The Honorable Martha
TANNER, Judge, Respondent.
No. D3089.
June 30, 1993.
Products liability defendant, which allegedly manufactured

defective pay telephone cord sheathing, sought mandamus
relief from discovery sanctions imposed by trial court. The
Supreme Court, Hecht, J., held that: (1) defendant was
improperly sanctioned for failure to produce memorandum
absent sufficient evidence that defendant had actual or
constructive possession of memo or right to compel its
production, and (2) defendant's summary judgment motion, in
which it asserted that it had not manufactured telephone cord
sheathing in question, was not sanctionable as groundless
pleading.
Relief conditionally granted.

*726 Ruth Greenfield Malinas, J. Michael Ezzell, Thomas
H. Crofts, Jr., San Antonio, for relator.
Rene R. Barrientos, Pat Maloney, Sr., Timothy Patton, San
Antonio, for respondent.
OPINION
HECHT, Justice.
In this original mandamus proceeding, relator GTE
Communication Systems Corporation, a defendant in pending
litigation, seeks review of sanctions imposed against it by
the respondent district court. The district court concluded that
four of GCSC's amended answers, its motion for summary
judgment, and two affidavits in support of the motion were
groundless and filed in bad faith, in violation of Rule
13, TEX.R.CIV.P. The district court also concluded that
GCSC failed to produce a certain document in response to
a discovery request, in violation of Rule 215, TEX.R.CIV.P.
As sanctions, the district court struck GCSC's pleadings

and ordered it to pay plaintiffs $150,000 in attorney fees.
We granted leave to file application for writ of mandamus
to review these rulings. For reasons that follow, we
conditionally grant the writ.
I
The litigation pending in the district court arises out of the
following circumstances. Rene Duran and Jesse Ramirez, Jr.
were riding bicycles along the sidewalk outside a grocery
store when Duran struck a sharp-edged metal cable which had
been stretched across the sidewalk at the level of his neck.
Duran was nearly decapitated by the cable and died of his
injuries. At the shock of this accident, Ramirez fell from his
bicycle and sustained injuries. The cable, which was several
feet long, had been made by unwinding the 18 flexible
sheath that protected the cord of electric wires connecting a
telephone handset to the body of a pay telephone mounted
on the wall outside the grocery store. Police investigating
Duran's death obtained information that a young man, the
grandson of the proprietor of the grocery store, had stretched
the cable across the sidewalk as a prank. Before the young
man could be *727 arrested and charged with murder, he
committed suicide.
Duran's estate and survivors, along with Ramirez and his
next friends, filed suit claiming that the telephone was
unreasonably dangerous as designed, manufactured and
distributed, because the metal sheath covering the telephone
handset cord could easily be disassembled and stretched
into a cable. In their original petition, plaintiffs alleged that
defendant ATS Pay Phone Supply, Inc., had manufactured the
telephone, and did not name GTE Communication Systems
Corporation as a defendant. Subsequently, plaintiffs amended
their petition to add GCSC as a defendant, alleging that it
was the manufacturer of the telephone. In answer to plaintiffs'
allegations, GCSC denied that it had designed, manufactured,
marketed, sold or distributed the sheathed cord.
After some discovery had been conducted, GCSC moved
for summary judgment on several grounds, including: that it
had not designed, manufactured, or marketed the sheathed
cord that caused Duran's injuries; that the sheath was not
defective; that if the sheath was unreasonably dangerous, it
was solely because it had been altered; that the alteration
of the sheathed cord which led to plaintiffs' injuries
was unforeseeable; and that the criminal conduct involved
Appendix 6
in stretching the cable across the sidewalk was a new,

independent, superseding or intervening cause of plaintiffs'
injuries. The first of these grounds was supported by the
affidavits of Robert Zimmerman, a long-time employee
of GCSC, and Oscar Jiminez, an employee of General
Cable Company, a manufacturer of telephone handset
cables. Zimmerman's affidavit stated that in manufacturing
telephone handsets GCSC had used only sheathed cords
made by General Cable, and that if the sheath that injured
Duran was not General Cable's, then the handset was not
GCSC's. Jiminez' affidavit stated that he had examined the
remnants of the sheath that injured Duran and found six
distinct differences between those remnants and sheaths
manufactured by General Cable. Thus, Jiminez concluded
that General Cable had not designed, assembled or distributed
the cord involved in the accident.
In response to GCSC's motion for summary judgment,
plaintiffs asserted that the identity of the manufacturer of
the cord had not been established but was much in dispute.
Plaintiffs argued that even if GCSC had not made the cord, it
had certainly made the telephone, and that the telephone was
defective because the cord was part of it. The trial court denied
summary judgment without indicating a specific reason.
Several months later, plaintiffs filed a motion for sanctions
requesting that the district court strike GCSC's pleadings
and award plaintiffs $150,000 in attorney fees. This motion
complained that GCSC's assertions that it was not involved in
making and distributing the sheathed cord which injured the
plaintiffs had been interposed in bad faith and with knowledge
that the assertions were false. The motion also complained
that GCSC had failed to produce unspecified documents
(actually, as it later developed, a single document) which
showed that it knew of the dangers inherent in the cord and
could have foreseen the type of accident in which plaintiffs
were injured. The motion requested sanctions for discovery
abuse and under Rule 13, TEX.R.CIV.P. After an evidentiary
hearing the district court granted plaintiffs' motion without
indicating the reasons for its ruling.
GCSC petitioned the court of appeals for a writ of mandamus
directing the district court to vacate its order. The appeals
court conditionally granted its writ, holding that the order
did not state the particulars of good cause warranting
the imposition of sanctions, as required by Rule 13. GTE
Communication Systems Corp. v. Curry, 819 S.W.2d 652,
653 (Tex.App.San Antonio 1991, orig. proc.). Immediately
after the court of appeals issued its opinion, the district
court vacated its original order and, without notice to GCSC,

signed a new order prepared by plaintiffs, setting out in 24
paragraphs three reasons for sanctioning GCSC by dismissing
its pleadings and assessing $150,000 attorney fees against it.
*728 One reason the district court gave for imposing
sanctions was that GCSC had abused the discovery process
by failing to produce a certain memorandum prepared by
employees of a corporation, GTE of Florida, Inc., for
circulation to several departments within that corporation.
GTFL, as it is referred to, and GCSC are separate
corporations. It is unclear from the record before us how or
even whether they are related. The relevant portion of the
memorandum states: Presently GTFL is using over 5,000
handsets per year for maintenance change out because the
armored handset cord has been uncoiled by an excessive pull
by the end user. Several of these handset failures have resulted
in litigation against GTFL. Plaintiffs obtained this memo
from another party in the litigation. To show that GCSC was
aware of the memo and had failed to produce it, plaintiffs
offered as their only evidence the testimony of Charles James,
president of ATS, the corporation plaintiffs once alleged was
the manufacturer of the sheath. James stated that, based upon
his experience in the pay telephone industry, it was totally
inconceivable that GCSC did not have the memo, and GCSC
could compel its production from GTFL because the two
corporations were affiliated. The district court credited
James' testimony and discredited GCSC's evidence that it
was unaware of the memo and that it had no control over
GTFL to compel that entity to produce the memo. James also
admitted, however, that he had never worked for GCSC or
GTFL and did not actually know whether GCSC had ever
been in possession of the GTFL memo.
A second reason the district court gave for imposing sanctions
was that GCSC had acted in bad faith in asserting in its
summary judgment motion that, as a matter of law, plaintiffs'
accident was unforeseeable. The court assumed that GCSC
knew of the GTFL memo when it filed its motion for
summary judgment, and therefore knew of the problems
with the sheathed cord. Possessed of this knowledge, the
court reasoned, GCSC's assertion that plaintiffs' accident was
unforeseeable as a matter of law was groundless and could
only have been made in bad faith. Based upon this analysis,
the district court concluded that GCSC's summary judgment
motion violated Rule 13.
The district court also concluded, as its third reason
for sanctions, that GCSC's amended answers, motion for
Appendix 6
summary judgment and supporting affidavits in which it

denied that it had manufactured the sheathed cord were
groundless and brought in bad faith, in violation of Rule 13.
The court based this conclusion upon the testimony of two
experts, one of whom was James. Plaintiffs first developed
this testimony after GCSC's motion for summary judgment
was denied and offered it at the hearing on the motion for
sanctions. Both witnesses testified that they had concluded
from examining the sheath that GCSC had manufactured it.
At the hearing, GCSC introduced the affidavits that it had
filed in support of its motion for summary judgment, in
addition to other evidence that it had not manufactured the
sheath.
The phrase, possession, custody or control, within the

meaning of this rule, includes not only actual physical
possession, but constructive possession, and the right to
obtain possession from a third party, such as an agent or
representative. The right to obtain possession is a legal right
based upon the relationship between the party from whom a
document is sought and the person who has actual possession
of it. For example, in State v. Lowry, 802 S.W.2d 669, 673
674 (Tex.1991), we held that a request for production directed
to the Attorney General required production of documents
held by all divisions of that office.
GCSC again sought a writ of mandamus from the court of

appeals, but this time the court denied leave to file the petition.
GCSC then moved for leave to file its petition in this Court,
which we granted. 36 TEX.SUP.CT.J. 686 (April 3, 1993).
[2]
[3] A party seeking sanctions has the burden of
establishing his right to relief. Thus, when a motion for
sanctions asserts that a respondent to a discovery request has
failed to produce a document within its possession, custody
or control, the movant has the burden to prove the assertion.
In this case, plaintiffs failed to meet that burden.
II
We first consider whether the district court abused its
discretion in sanctioning GCSC for abuse of the discovery
process under Rule 215, TEX.R.CIV.P. To answer this
question we must answer two others: did the district court
properly find that GCSC had possession, custody or control
of the GTFL memo within the meaning of Rule 166b(2)(b),
TEX.R.CIV.P., such that GCSC should have produced it; and
if so, were the sanctions imposed for the failure to produce
the memo just. We conclude that both these questions must
be answered negatively.
[1] Rule 166b(2)(b), TEX.R.CIV.P., provides in pertinent
part:
A person is not required to
produce a document or tangible
thing unless it is *729 within
the person's possession, custody or
control. Possession, custody or control
includes constructive possession such
that the person need not have actual
physical possession. As long as
the person has a superior right to
compel the production from a third
party (including an agency, authority
or representative), the person has
possession, custody or control.
[4] The only evidence plaintiffs offered to show that GCSC

had actual possession of the memo was the testimony of
Charles James that it was totally inconceivable to him that
GCSC did not have the memo. James admitted, however,
that he had never worked for GCSC and had no personal
knowledge of whether GCSC had ever had the GTFL memo.
The memo has not been located in GCSC's files, no GCSC
employee has acknowledged ever seeing it, and there is no
circumstantial evidence that would indicate that GCSC ever
had the memo. Under these circumstances, James' testimony
is no more than mere surmise.
Likewise, there is no evidence that GCSC had constructive
possession of the document or a right to compel its
production. Plaintiffs adduced no evidence regarding the
corporate relationship between GTFL and GCSC, or any right
of the latter to control the former. In fact, the only testimony
regarding control was James' speculation regarding the ability
of GCSC's parent to control its subsidiaries, assuming both
GCSC and GTFL were subsidiaries of the same parent. There
is no evidence that GCSC ever actually did exercise control
of any type over GTFL.
[5] As a rule, the district court's resolution of a factual issue
is entitled to deference in a mandamus proceeding and should
not be set aside unless it is clear from the record that only
one decision could have been reached. Walker v. Packer, 827
S.W.2d 833, 83940 (Tex.1992). Here, it is quite clear that
from the record before it the district court could not have
found that GCSC had possession, custody or control over the
Appendix 6
GTFL memo within the meaning of Rule 166b(2)(b) such that

GCSC should have produced it.
[6] Furthermore, even if GCSC had failed to produce
the GTFL memo, the district court's sanction of striking
GCSC's pleadings would not have been just, as required
by Rule 215, TEX.R.CIV.P. [J]ust sanctions must not be
excessive.... [C]ourts must consider the availability of less
stringent sanctions and whether such lesser sanctions would
fully promote compliance. TransAmerican Natural Gas
Corporation v. Powell, 811 S.W.2d 913, 917 (Tex.1991). The
record must reflect that the court considered the availability of
lesser sanctions. Otis Elevator Co. v. Parmelee, 850 S.W.2d
179, 181 (Tex.1993). Case determinative sanctions may be
imposed in the first instance only in exceptional cases when
they are clearly justified and it is fully apparent that no
lesser sanctions would promote compliance with the rules.
Here, the order which the district court signed stated that
lesser sanctions would have been ineffective, but the court did
not explain why, and the record does not indicate why. We
give no deference to such unsupported conclusions. Chrysler
Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992). We
fail to see why any number *730 of lesser sanctions, from
fines to contempt, would not have promoted compliance with
discovery, if there had been abuse here.
[7] The sanctions imposed by the district court precluded
GCSC from presenting the merits of its position at trial.
Before a court may deprive a party of its right to present
the merits of its case because of discovery abuse, it must
determine that a party's hindrance of the discovery process
justifies a presumption that its claims or defenses lack merit.
TransAmerican, 811 S.W.2d at 918. No such presumption
is warranted here. We have concluded that GCSC did not
fail to comply with discovery. Even in the district court's
view, GCSC only failure was to produce a single document
which states that several ... handset failures have resulted
in litigation without any indication of the nature of such
litigation or whether personal injuries had occurred. Even
if GCSC had failed to comply with discovery, there is
nothing in the record to justify striking GCSC's pleadings as
a consequence.
Accordingly, we conclude that the district court clearly
abused its discretion in sanctioning GCSC for an abuse of the
discovery process under Rule 215.
III
We next consider whether the district court abused
its discretion in imposing sanctions under Rule 13,
TEX.R.CIV.P. Rule 13 states in pertinent part:
The signatures of attorneys or parties constitute a certificate
by them that they have read the pleading, motion, or other
paper; that to the best of their knowledge, information,
and belief formed after reasonable inquiry the instrument
is not groundless and brought in bad faith or groundless
and brought for the purpose of harassment.... If a pleading,
motion or other paper is signed in violation of this rule,
the court, upon motion or upon its own initiative, after
notice and hearing, shall impose an appropriate sanction
available under Rule 2152b, upon the person who signed
it, a represented party, or both.
Courts shall presume that pleadings, motions, and other
papers are filed in good faith. No sanctions under this rule
may be imposed except for good cause, the particulars of
which must be stated in the sanction order. Groundless
for purposes of this rule means no basis in law or fact and
not warranted by good faith argument for the extension,
modification, or reversal of existing law.
[8] The district court sanctioned GCSC for filing amended
answers, a motion for summary judgment and the supporting
affidavits of Zimmerman and Jiminez, which deny that GCSC
was involved in making or distributing the sheathed cord
which caused plaintiffs' injuries. By its express language,
Rule 13 applies only to pleadings, motions and other papers
signed by attorneys. Since the Zimmerman and Jiminez
affidavits were not signed by GCSC's attorneys, it was a clear
abuse of discretion for the district court to base an imposition
of sanctions under Rule 13 on them. The issues, then, are
whether the district court abused its discretion GCSC's in
concluding that GCSC's amended answers and motion for
summary judgment are sanctionable, and in striking GCSC's
pleadings.
Such papers cannot serve as a basis for sanctions under
that portion of Rule 13 quoted above, and on which the
district court relied, unless the papers are groundless as
defined by the rule. Plaintiffs contend, and the district court
concluded, that GCSC's amended answers and summary
judgment motion are groundless because there is no basis in
fact for GCSC's denial that it was involved in the manufacture
or distribution of the sheathed cord which caused plaintiffs'
Appendix 6
injuries. Plaintiffs make two arguments in support of their

contention.
involved in the manufacture or distribution of the sheathed

cord.
Plaintiffs' first argument is that the evidence establishes as a

matter of law that GCSC manufactured the sheathed cord, and
that GCSC's denial of this fact was therefore groundless. The
evidence in the record before us demonstrates that the identity
of the manufacturer of the cord is vigorously disputed, and
certainly not established as a matter of law. GCSC's effort
*731 to establish that it was not the manufacturer of the cord
was not groundless.
[11] Furthermore, a motion for summary judgment asserting

that no genuine issue of material fact exists is not proved
groundless or in bad faith merely by the filing of a response
which raises an issue of fact, even if the response was or could
have been anticipated by the movant. Nor is denial of a motion
for summary judgment alone grounds for sanctions. Rule 13
does not permit sanctions for every pleading or motion that
requests relief which is denied. In this case, the district court
abused its discretion in finding that GCSC had acted in bad
faith.
[9] Plaintiffs' second argument is that because, at the very

least, a fact question existed regarding GCSC's involvement
in the manufacture and distribution of the sheathed cord,
GCSC's assertion in its motion for summary judgment that
no such fact question existed was groundless. In other words,
plaintiffs argue that a party who knows that material facts
are in dispute may be sanctioned for moving for summary
judgment. While we do not disagree that the filing of a motion
for summary judgment may give rise to sanctions under Rule
13, just as the filing of any other pleading or motion, this
is not such a case. At the time GCSC filed its motion, the
only evidence adduced by the parties indicated that GCSC had
not made or distributed the sheathed cord. Indeed, plaintiffs
themselves originally pleaded that ATS manufactured the
cord, not GCSC. By their own admission, plaintiffs did not
develop any evidence to contradict GCSC's assertions until
after GCSC's motion was denied. Even if GCSC was not
entitled to summary judgment, it cannot be said that its motion
had no basis in law or fact.
[10] Thus, the district court clearly abused its discretion
in determining that GCSC's assertions were groundless. To
impose sanctions under Rule 13, the district court was
also required to find that GCSC's assertions were made in
bad faith or for the purpose of harassment. Since plaintiffs
do not contend, and the district court did not find, that
GCSC's assertions were harassing, a finding of bad faith
was a prerequisite to sanctions. Rule 13 prescribes that
courts presume that papers are filed in good faith. Thus, the
burden is on the party moving for sanctions to overcome
this presumption. Plaintiffs failed to carry this burden. The
only basis the district court gave for finding that GCSC had
acted in bad faith was that GCSC had ignored or concealed
evidence that it had been involved in making and distributing
the sheathed cord that injured the plaintiffs. As we have seen,
however, there is no proof that GCSC, before it moved for
summary judgment, was aware of any evidence that it was
The district court also sanctioned GCSC for asserting in its

motion for summary judgment that it did not know of any
defects in the sheathed cord and could not have foreseen
an accident like plaintiffs', when it was aware of the GTFL
memo. Since we have determined that there is no evidence
that GCSC was aware of the GTFL memo when it filed its
motion for summary judgment, and plaintiffs have offered no
other evidence of GCSC's knowledge of any defects in the
cord, we conclude that such assertions were not groundless or
made in bad faith.
[12] Even if GCSC's assertions in its amended answers and
motion for summary judgment had been sanctionable, they
would not have warranted striking GCSC's pleadings. Rule
13 requires that sanctions imposed be appropriate, which is
the equivalent of just under Rule 215. TransAmerican, 811
S.W.2d at 91617 n. 4. Neither standard allows imposition
of excessive sanctions. Moreover, while the due process
concerns under the two rules are not completely congruent,
case determinative sanctions may not be imposed under either
rule unless the violation warrants adjudication of the merits.
Even if GCSC had violated Rule 13, there is nothing in the
record to suggest that the violation could not have been fully
redressed far short of striking GCSC's pleadings.
*732 Thus, we hold that the district court clearly abused its
discretion in imposing sanctions under Rule 13.
IV
[13] Finally, we consider whether GCSC has an adequate
remedy by appeal. We have previously held that appeal
from the imposition of case determinative, or death
penalty, sanctions is inadequate, unless the sanctions are
Appendix 6
imposed simultaneously with a final, appealable judgment.

TransAmerican, 811 S.W.2d at 920; Chrysler, 841 S.W.2d
at 845 n. 2. For the same reasons expressed in those cases,
GCSC has no adequate remedy by appeal in this case, and we
exercise our discretion to issue the extraordinary writ.
Accordingly, we conclude that GCSC is entitled to have the

district court's sanction order set aside.
******
[14] We have held that an assessment of attorney fees

which is not to be paid until final judgment is rendered
may be adequately challenged by appeal. Braden v. Downey,
811 S.W.2d 922 (Tex.1991). Here, however, where we have
concluded in considering case determinative sanctions that
the district court clearly abused its discretion in awarding
any sanctions at all, there remains no basis for the award of
attorney fees.
End of Document
We therefore direct the district court to vacate its orders of

November 14, 1991, and June 12, 1992, assessing sanctions
and attorney fees. We assume the district court will promptly
comply. The writ of mandamus will issue only if it does not.
DOGGETT and SPECTOR, JJ., not sitting.
Appendix 6
In re Caballero, 272 S.W.3d 595 (2008)
272 S.W.3d 595

In the Matter of Rolando CABALLERO.
No. 070484. | Argued April
2, 2008. | Decided Dec. 19, 2008.
Synopsis
Background: Chief Disciplinary Counsel of the Commission
for Lawyer Discipline brought a compulsory disciplinary
action against attorney convicted of mail fraud. Board of
Disciplinary Appeals (BODA) entered judgment disbarring
attorney. Attorney appealed.
Holdings: The Supreme Court, Paul W. Green, J., held that:

[1] BODA has discretion to disbar or suspend when an
attorney has been convicted of an intentional crime and
receives a fully-probated sentence, and
[2] BODA did not abuse its discretion in disbarring attorney.
The issue in this case is straightforward: under the

compulsory discipline process set forth in the Texas Rules
of Disciplinary Procedure, when an attorney's sentence has
been fully probated, does the Board of Disciplinary Appeals
(BODA) have discretion to disbar that attorney, or may it only
suspend him for the length of the probation term? We hold
that the rules give BODA discretion to disbar the attorney,
and, therefore, affirm BODA's judgment of disbarment.
I
In 2004, Rolando Caballero was indicted in federal district
court for wire fraud and mail fraud. After a plea agreement,
he pled guilty to the mail fraud charge. The trial court placed
him on supervised probation for five years and ordered him
to pay restitution of $57,937.50 plus a mandatory special
assessment of $100.00. The prosecutor did not pursue the
wire fraud charges further. The Chief Disciplinary Counsel of
the Commission for Lawyer Discipline brought a compulsory
disciplinary action against Caballero. Following a hearing
on March 23, 2007, BODA entered a judgment disbarring
Caballero. Caballero moved for a new trial but his motion was
denied. Caballero then appealed to this Court. See TEX.R.
DISCIPLINARY P. 7.11 (providing for direct appeal to the
Supreme Court). 1
Affirmed.
Don R. Willett, J., dissented and filed opinion in which
Medina, J., joined.

*596 Royal K. Griffin, Christine Chemell, San Antonio TX,
for Appellant.
*597 Gayle Riley Vickers, Christine E. McKeeman,
Board of Disciplinary Appeals, Linda A. Acevedo, Asst.
Disciplinary Counsel, Austin, Cynthia W. Hamilton,
Assistant Disciplinary Counsel, San Antonio TX, for
Appellee.
Opinion
Justice GREEN delivered the opinion of the Court, in
which Chief Justice JEFFERSON, Justice HECHT, Justice
O'NEILL, Justice WAINWRIGHT, Justice BRISTER, and
Justice JOHNSON joined.
II
[1] [2] [3] The attorney disciplinary process is divided
into two types of proceedings: the standard grievance
procedure and the compulsory discipline procedure. See In
re Lock, 54 S.W.3d 305, 306 (Tex.2001). The standard
grievance procedure applies in all instances of alleged
attorney misconduct, except where an attorney is alleged
to have committed an intentional crime. Id. Under the
standard grievance procedure, a grievance committee or
district court determines violations and sanctions. See TEX.R.
DISCIPLINARY P. 2.13.18, 3.09.10; In re Mercier, 242
S.W.3d 46, 47 (Tex.2007) (per curiam). The reviewing body
may disbar the attorney under the standard grievance process,
but also has the ability to assess a range of lesser sanctions,
including various types of suspension and reprimand. Lock,
54 S.W.3d at 307.
[4] The compulsory discipline procedure applies [w]hen an
attorney licensed to practice law in Texas has been convicted
of an Intentional Crime or has been placed on probation for
Appendix 7
an Intentional Crime. TEX.R. DISCIPLINARY P. 8.01. An

2
intentional crime is (1) any Serious Crime that requires

proof of knowledge or intent as an essential element or
(2) any crime involving *598 misapplication of money or
other property held as a fiduciary. Id. at 1.06(T). The Chief
Disciplinary Counsel commences a suit under the compulsory
process by filing a petition with BODA. Id. at 8.01, .03. The
petition must allege the adjudication of guilt (or probation
without an adjudication of guilt) of an Intentional Crime;
allege that the Respondent is the same person as the party
adjudicated guilty or who received probation ...; and seek the
appropriate discipline. Id. at 8.03. In this regard, BODA's
function is rather limited. BODA merely determines whether
there has been an adjudication of guilt of an intentional crime
and ensures that the subject attorney was actually adjudicated
guilty. Id. at 8.03.04. BODA then determines the appropriate
discipline. See id. at 8.05.06.
In this case, the compulsory discipline procedure applies
because it is undisputed that Caballero's crime is an
intentional crime. The issue, then, is to what extent Texas
Rules of Disciplinary Procedure 8.05 and 8.06 give BODA
discretion to determine Caballero's discipline, given that
his sentence was fully probated. 3 Rule 8.05, entitled
Disbarment, states in relevant part:
When an attorney has been convicted of an Intentional

Crime, and that conviction has become final, or the attorney
has accepted probation with or without an adjudication
of guilt for an Intentional Crime, the attorney shall be
disbarred unless the Board of Disciplinary Appeals, under
Rule 8.06, suspends his or her license to practice law.
Id. at 8.05. 4 Rule 8.06, entitled Suspension, states in
relevant part:
If an attorney's sentence upon conviction of a Serious
Crime is fully probated, or if an attorney receives probation
through deferred adjudication in connection with a Serious
Crime, the attorney's license to practice law shall be
suspended during the term of probation. If an attorney is
suspended during the term of probation, the suspension
shall be conditioned upon the attorney's satisfactorily
completing the terms of probation. If the probation is
revoked, the attorney shall be disbarred.
Id. at 8.06. 5 Caballero argues that Rule 8.06 mandates
suspension of the attorney's license in the case of a
fully-probated sentence. The Commission for Lawyer
Discipline, however, argues that Rule 8.05 *599 grants
BODA discretion to either disbar an attorney, as provided

by Rule 8.05, or to suspend the attorney's license for the
term of probation as provided under Rule 8.06.
III
[5] [6] [7] In resolving the meaning of these rules, we
apply statutory construction principles. See O'Quinn v. State
Bar of Tex., 763 S.W.2d 397, 399 (Tex.1988) (instructing
that our disciplinary rules should be treated like statutes).
Statutory construction is a legal question, which we review
de novo. State ex rel. State Dep't of Highways & Pub. Transp.
v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). In doing this,
we give effect to all [a statute's] words and, if possible, do
not treat any statutory language as mere surplusage. State v.
Shumake, 199 S.W.3d 279, 287 (Tex.2006).
Rule 8.05 states that an attorney convicted of an intentional
crime, or an attorney put on probation for an intentional
crime, shall be disbarred unless [BODA], under Rule 8.06,
suspends his or her license to practice law. TEX.R.
DISCIPLINARY P. 8.05 (emphasis added). Thus, the starting
point is disbarment because BODA is instructed that it shall
disbar. Id.; see also TEX. GOV'T CODE 311.016(2)
( Shall imposes a duty.). But the unless clause
referencing the Rule 8.06 suspension procedure gives BODA
some discretion to suspend the attorney's license. TEX.R.
DISCIPLINARY P. 8.05. Rule 8.06 then establishes the
guidelines for that suspension. First, Rule 8.06 states a
condition to its use: If an attorney's sentence upon conviction
of a Serious Crime is fully probated, or if an attorney receives
probation through deferred adjudication in connection with a
Serious Crime.... Id. at 8.06. Second, Rule 8.06 dictates the
length of the suspension: [T]he attorney's license to practice
law shall be suspended during the term of probation. Id.; see
also In re Ament, 890 S.W.2d 39, 40 (Tex.1994) (per curiam).
Thus, BODA has discretion under Rule 8.05 to disbar the
attorney or to suspend the attorney's license under Rule 8.06.
But if BODA uses Rule 8.06, it must comply with Rule 8.06's
conditions. See Ament, 890 S.W.2d at 40 (holding that the
probationary period is the ceiling, above which suspension
may not climb). We do not accept Caballero's argument that
Rules 8.05 and 8.06 mandate suspension in the case of a
fully-probated sentence because construing the rules in this
manner would not give effect to the second half of Rule
8.05's language, which gives BODA discretion to use Rule
8.06. Rather, Caballero's proposed construction would render
it mere surplusage. Shumake, 199 S.W.3d at 287. The rules
must be read together. 6
Appendix 7
The prior disciplinary rules also gave BODA this discretion,

albeit in a different manner. 7 The prior disbarment rule
mandated *600 that BODA use the suspension rule if it
applied to the case-that is, if the attorney received a fullyprobated sentence. See State Bar Rules art. 10, 26(F)
(repealed 1992) (When an attorney has been convicted of
a serious crime ... the attorney shall be disbarred, except as
provided in [the suspension rule].) (emphasis added). In the
prior disbarment rule, there was no discretionary language
allowing BODA to decide whether to utilize the suspension
rule in the first place. See id. The discretion came under the
suspension rule, which provided that BODA did have the
discretion to disbar the attorney even if the suspension rule
applied. See State Bar Rules art. 10, 26(G) (repealed 1992)
(providing that an attorney shall be suspended during the
term of the probation ... [but BODA] may impose ... such
further disciplinary sanction as may be warranted, including
disbarment). Under these prior rules, BODA could exercise
discretion to disbar an attorney with a fully-probated sentence
under the suspension rule, but not the disbarment rule.
The revised rules flipped this discretion, and now the 8.05
disbarment rule gives BODA discretion to decide whether
to utilize the 8.06 suspension rule in the first place. See
TEX.R. DISCIPLINARY P. 8.05 (providing that an attorney
shall be disbarred unless the Board of Disciplinary Appeals,
under Rule 8.06, suspends his or her license to practice law)
(emphasis added). But, under the current rules, once BODA
decides to utilize the suspension rule, its discretion to disbar
an attorney with a fully-probated sentence is removed. See
TEX.R. DISCIPLINARY P. 8.06; Ament, 890 S.W.2d at 41
(holding that, under Rule 8.06, the suspension period must
equal the probation term and that the discretion to impose
additional punishment under Rule 8.06 has been removed).
Our construction here is also consistent with other portions
of the rules. See Helena Chemical Co. v. Wilkins, 47
S.W.3d 486, 493 (Tex.2001) (instructing that we must
always consider the statute as a whole rather than its
isolated provisions and [w]e should not give one provision
a meaning out of harmony or inconsistent with other
provisions, although it might be susceptible to such a
construction standing alone). Rule 11.01, which addresses
when an individual can apply for reinstatement after
disbarment, describes an attorney who has been disbarred or
resigned in lieu of discipline by reason of conviction of or
having been placed on probation without an adjudication of
guilt for an Intentional Crime or a Serious Crime. TEX.R.
DISCIPLINARY P. 11.01 (emphasis added). This language
envisions disbarment following a probated sentence. Also,

Rule 8.01 instructs that [t] he completion or termination of
any term of incarceration, probation, parole, or any similar
court ordered supervised period does not bar [compulsory
discipline procedures]. TEX.R. DISCIPLINARY P. 8.01
(emphasis added). This indicates that compulsory discipline
procedures can be initiated even after the probation term
has ended. See id. If Rules 8.05 and 8.06 did not permit
punishment other than suspension during the term of the
probation, then Rule 8.01 could not allow the initiation of
proceedings after this term was already completed.
Caballero relies on five cases to argue that BODA has
no discretion to disbar him. See Lock, 54 S.W.3d 305; In
re Birdwell, 20 S.W.3d 685 (Tex.2000); In re Humphreys,
880 S.W.2d 402 (Tex.1994); Sanchez v. Bd. of Disciplinary
Appeals, 877 S.W.2d 751 (Tex.1994) (per curiam); *601
Ament, 890 S.W.2d 39. None of those cases address the
issue before the Court today. We have not previously been
called upon to resolve the interplay between Rule 8.05
and 8.06 and whether BODA has discretion to disbar or
suspend in the case of a fully-probated sentence. Lock,
Birdwell, and Humphreys all involved whether a particular
crime was a crime of moral turpitude for purposes of
using the compulsory discipline procedure in the first place.
See Lock, 54 S.W.3d at 311 (holding that possession of a
controlled substance is not a crime of moral turpitude per
se); Birdwell, 20 S.W.3d at 686 (holding that conspiracy to
defraud the IRS is a crime of moral turpitude); Humphreys,
880 S.W.2d at 408 (holding that tax evasion is a crime of
moral turpitude). Rule 8.06 was not at issue in those cases.
See Lock, 54 S.W.3d at 312 (concluding that the standard
grievance procedure should apply); Birdwell, 20 S.W.3d at
686 (noting that the attorney was ineligible for suspension
under [Rule] 8.06); Humphreys, 880 S.W.2d at 403 n. 1
(noting that Humphreys's prison sentence precludes Rule
8.06 suspension). In Sanchez, the disbarred attorney made
a constitutional challenge to the Rule 8.05/8.06 scheme in
light of the fact that BODA could disbar attorneys in some
instances while only suspending them in others. 877 S.W.2d
at 752. Sanchez argued that the scheme was harsh and
unconstitutional because it mandated disbarment in cases in
which a sentence was not fully probated. Id. Sanchez did
not involve a fully-probated sentence and never touched on
the extent of BODA's discretion in that instance. See id. at
75152. Ament dealt with the length of a suspension under
Rule 8.06, not whether suspension was mandated. See 890
S.W.2d at 4041. Ament works to limit BODA's discretion
when suspension under Rule 8.06 is imposed. Id. at 41. Once
Appendix 7
BODA decides to suspend an attorney's license under Rule

8.06, it can only impose a suspension for the length of the
probation period. 8 Id.
[8] Thus, both the language of the disciplinary rules and
our caselaw confirm that BODA has discretion to disbar or
suspend in the case of a fully-probated sentence. If BODA
decides to suspend an attorney's license, the suspension
period must equal the length of the probation period. Id.
be disbarred unless BODA, under Rule 8.06, suspends his

or her license to practice law. As we observed in Sanchez
v. Board of Disciplinary Appeals, Rule 8.05 mandates
disbarment for a final conviction ... except when Rule 8.06
applies. 3 Rule 8.06 sets out the exception by providing
that if the attorney's sentence is fully probated (emphasis
added), BODA shall suspend the attorney during the term
of probation. 4 We have so observed: BODA is required to
disbar an attorney under Rule 8.05 who is convicted of an
intentional crime and whose sentence is not fully probated. 5
Like Rule 8.05, Rule 8.06 is mandatory by its terms.
IV
[9] Caballero was convicted of an intentional crime and
received a fully-probated sentence. BODA, therefore, had
discretion to either disbar Caballero or suspend his license
for the term of the probation. Further, although not briefed in
this case, we find nothing in the record to indicate an abuse
of discretion on BODA's part in disbarring Caballero. See In
re Filippov, BODA Case No. 30611, at 1112 (describing
factors BODA considers when determining whether to disbar
an attorney or suspend his license when the attorney's
sentence is fully probated). Because we hold that BODA had
discretion to disbar Caballero, and that it did not abuse that
discretion, we affirm the judgment of disbarment.
Justice WILLETT filed a dissenting opinion, in which Justice

MEDINA joined.
*602 Justice WILLETT, joined by Justice MEDINA,
dissenting.
Like the Court, I would attempt to harmonize Rules 8.05 and
8.06 of the Rules of Disciplinary Procedure and give meaning
to each. 1 However, the Court sees discretion where I see
only mandatory options for discipline. Because I believe the
Court's attempt to harmonize the relevant rules and rulings
strikes a discordant note, I respectfully dissent.
The parties do not dispute that the compulsory discipline
rules apply. Rule 8.05, titled Disbarment, provides that
the Board of Disciplinary Appeals (BODA) shall disbar
an attorney who is convicted of, or has accepted probation
for, an Intentional Crime. The use of shall makes the Rule
mandatory and imposes a duty. 2
The only exception mentioned in Rule 8.05 is Rule 8.06,
titled Suspension. Rule 8.05 states that the attorney shall
I would reconcile the rules, and honor the mandatory shall

used in both, by holding that when mandatory discipline is
warranted, Rule 8.06 applies if the sentence is fully probated,
and Rule 8.05 applies if the attorney's sentence is lessthan-fully probated. Which is to say, BODA must disbar
under Rule 8.05 if the attorney is sentenced to jail or to a
combination of jail and probation, and BODA must suspend
under Rule 8.06 (up to the length of the probated sentence) if
the sentence is fully probated. Because Caballero's sentence
was fully probated, I would hold that BODA was only
authorized to suspend his license.
The plain language of the rules supports this result, and so
does our prior precedent. In Sanchez, the Court held that Rule
8.05 mandates disbarment except when Rule 8.06 applies,
and it did not apply to Sanchez because his sentence, a
fine of $500, was not probated. 6 Later that same year,
in In re Ament, we noted that the relevant disciplinary
rules previously gave discretion to disbar an attorney who
received a fully probated sentence, but under Rule 8.06,
[t]he provision providing *603 for discretionary, additional
punishment is omitted. 7 We described this omission as the
one, crucial change in the rule. 8 Today the Court re-inserts
that omitted discretion.
Seven years after Sanchez, we observed in In re Lock that
the mandatory language of the two rules should be applied
according to the nature of the sentence without regards for
details that would ordinarily inform a discretionary review:
An attorney guilty of an intentional crime must be either
suspended or disbarreddepending solely on whether the
attorney's criminal sentence was probatedwithout regard
for any collateral matters, and without any consideration or
inquiry into the facts of the underlying criminal case. 9
Appendix 7
In that case we seemed to reject the view that BODA has

discretion to either disbar or suspend a lawyer regardless of
whether the sentence was fully probated. The Court today
would allow language in Rule 8.05 concerning disbarment
to confer discretion over suspension when the rule actually
governing suspension leaves no room for such discretion. The
more natural reading is that Rule 8.05 requires disbarment
unless Rule 8.06 applies, at which point suspension is
required. This construction comports with our analysis in
Sanchez, Ament, and Lock and harmonizes the plain language

of both rules. 10
I understand the Court's desire to grant BODA flexibility, but
my reading of the rules and our pertinent precedent compels
me to respectfully dissent.
Footnotes
1
2
3
4
5
6
7
8
1
2
3
4
See TEX.R. DISCIPLINARY P. 7.11, reprinted in TEX. GOV'T CODE, tit. 2, subtit. G app. A1. All references to disciplinary rules
in this opinion are to these rules, unless otherwise indicated.
Serious crime means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or
fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit
any of the foregoing crimes. TEX.R. DISCIPLINARY P. 1.06(Z).
The Commission for Lawyer Discipline argued in its brief that the special assessment and restitution part of Caballero's sentence
renders the sentence not fully probated for purposes of Rule 8.06. However, at oral argument, the Commission conceded that the
sentence was fully probated for purposes of determining the discretionary discipline issue. We also note that BODA's final judgment
made a finding of fact that Caballero's criminal sentence was fully probated. In re Caballero, Judgment of Disbarment, Case No.
38821 (Tex. Mar. 28, 2007). Regardless, because we hold that Rule 8.05 gives BODA discretion to disbar or suspend an attorney
whose sentence was fully probated, it is irrelevant whether Caballero's sentence was fully probated. BODA has the power to disbar
an attorney whether his sentence was fully probated or not. Whether a sentence was fully probated would be an issue only if BODA
decided to suspend an attorney's license under Rule 8.06.
Intentional Crime means (1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2) any crime
involving misapplication of money or other property held as a fiduciary. TEX.R. DISCIPLINARY P. 1.06(T).
Serious crime means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or
fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit
any of the foregoing crimes. TEX.R. DISCIPLINARY P. 1.06(Z).
BODA has construed Rules 8.05 and 8.06 in a similar manner. See, e.g., In re Mercier, BODA Case No. 38020 (Nov. 3, 2006); In
re Filippov, BODA Case No. 30611, aff'd, 040151 (Tex. June 18, 2004). We have affirmed, without opinion, BODA decisions to
disbar an attorney who received a fully-probated sentence. See, e.g., Filippov, BODA Case No. 30611; In re Goldberg, BODA Case
No. 25757, aff'd, 020853 (Tex. Mar. 3, 2003); In re Raynor, BODA Case No. 25458, aff'd, 020435 (Tex. Sept. 26, 2002); In re
Hartley, BODA Case No. 06052, aff'd, 950511 (Tex. Oct. 27, 1995); see also TEX. GOV'T CODE 311.023 (In construing a
statute ... a court may consider ... [an] administrative construction of the statute.); In re State Bar, 113 S.W.3d 730, 732 (Tex.2003)
(noting that we have delegated portions of the power to regulate the practice of law to BODA).
The prior disciplinary rules were previously codified in Article X of the State Bar rules. In 1991, those rules were repealed and
replaced by the Texas Rules of Disciplinary Procedure. See State Bar Rules art. 10 (repealed 1992); see also TEX.R. DISCIPLINARY
P. 1.0115.13, reprinted in TEX. GOV'T CODE, tit. 2, subtit. G app. A1.
The dissent claims that our holding, in light of Ament, leads to a strange gap in discipline. 272 S.W.3d at 603. But while the rules
may provide BODA with the option of imposing two varying degrees of discipline, BODA does not have unfettered discretion to
impose discipline disproportionate to the attorney's acts. See TEX.R. DISCIPLINARY P. 7.11 ([a BODA] case shall be reviewed
under the substantial evidence rule); TEX. GOV'T CODE 2001.174(2)(E), (F) (directing that under the substantial evidence rule,
a court shall reverse on a finding that a decision is not reasonably supported by substantial evidence or arbitrary or capricious
or characterized by abuse of discretion).
See Elledge v. FribergCooper Water Supply Corp., 240 S.W.3d 869, 87071 (Tex.2007) (per curiam); Helena Chem. Co. v. Wilkins,
47 S.W.3d 486, 493 (Tex.2001).
TEX. GOV'T CODE 311.016(2); In re Gen. Elec. Co., 271 S.W.3d 681, (Tex.2008).
877 S.W.2d 751, 751 (Tex.1994).
Rule 8.06 also applies where the attorney receives probation through deferred adjudication. Deferred adjudication is imposed in
lieu of further prosecution to a conviction that can be punished by a term of incarceration, and hence is always fully probated
Appendix 7
5
6
7
8
9
10
in the sense that the defendant receives no jail time so long as he complies with the terms of the deferred adjudication. See, e.g.,
TEX.CRIM. PROC.CODE art. 42.12, 5 (providing for community supervision in lieu of further proceedings to adjudicate guilt
under deferred adjudication procedure).
In re Ament, 890 S.W.2d 39, 41 n. 2 (Tex.1994) (emphasis added).
877 S.W.2d at 75152.
890 S.W.2d at 4041 (emphasis in original).
Id. at 41.
54 S.W.3d 305, 30607 (Tex.2001) (emphasis added).
The Court's decision also leads to a strange gap in discipline. Ament held that the suspension period for a fully probated sentence
under Rule 8.06 is limited to the period of probation. 890 S.W.2d at 41. As the Court expresses no interest in disturbing the holding
of Ament, I take it to hold today that BODA can now disbar an attorney receiving a short, fully probated sentence, such as the fiveminute probated sentence at issue in Ament, or else impose a suspension limited to the term of probation. Meanwhile, a suspension
longer than the term of probation, but nevertheless short of disbarment, is disallowed. I find this result strained and unnecessary
under the language of the relevant rules.
End of Document
Appendix 7
In re City of Georgetown, 53 S.W.3d 328 (2001)

44 Tex. Sup. Ct. J. 434
53 S.W.3d 328
In re the CITY OF GEORGETOWN
and George Russell, in his official
capacity as Acting City Manager and
Officer for Public Information, Relator.
No. 000453. | Argued Jan. 3,
2001. | Decided Feb. 15, 2001. |
Rehearing Overruled April 12, 2001.
After city was ordered under Texas Public Information Act
to produce consulting expert's report that was prepared in
connection with pending and anticipated litigation, city filed
petition for writ of mandamus. The Supreme Court, Owen, J.,
held that: (1) report was exempt from disclosure under other
law provision of Act, and (2) city had not waived its right
to confidentiality.
Petition conditionally granted.
Hecht, J., filed concurring opinion.
Abbott, J., filed dissenting opinion in which Phillips, C.J., and
Baker, J., joined.

*329 Alan Jacob Bojorquez, J. Stephen Ravel, Marianne
Landers Banks, C. Robert Heath, Amy Warr, Bickerstaff
Heath Smiley Pollan Kever & McDanial, J. Gregory Hudson,
Austin, for relator.
Brenda Loudermilk, Office of Atty. Gen., Jennifer S. Riggs,
Randall D. Terrell, Hill Gilstrap Adams & Graham, John
Cornyn, Atty. Gen., Andy Taylor, Linda Eads, Don Walker,
Office of Atty. Gen., Austin, for respondent.
Opinion
Justice OWEN delivered the opinion of the Court, in which
Justice HECHT, Justice ENOCH, Justice HANKINSON and
Justice O'NEILL joined.
We are once again called upon to construe the Texas Public
Information Act (formerly known as the Texas Open Records
Act). The City of Georgetown contends that section 552.022
of the Act does not require it to disclose to the Austin
AmericanStatesman a report prepared by a consulting expert

in connection with pending and anticipated litigation. Section
552.022 provides that a governmental body must disclose
completed reports or evaluations unless the category of
information is expressly made confidential under other law.
TEX. GOV'T CODE 552.022(b). The Texas Rules of Civil
Procedure are other law, and consulting-expert reports are
within a category of information that is expressly confidential
under those rules. Accordingly, the trial court should not have
ordered the City to disclose the report, and we conditionally
issue a writ of mandamus.
I
The City of Georgetown has been involved in two suits arising
from discharges at one of its wastewater treatment plants. In
connection with those suits and other anticipated litigation,
the City Attorney retained an engineer as a consulting expert
to prepare a written assessment of certain parts of the plant.
The report was used in connection with the pending litigation,
but Bob Hart, who was City Manager at the time, also attached
the consulting expert's report, among other documents, to a
self-evaluation of his job performance that he prepared for
City Council members. The City has since terminated Hart
for reasons that it says were unrelated to the expert's report.
While litigation about the wastewater treatment plant was
ongoing, the Austin American Statesman requested the City
to release evaluations of Hart and any responses to those
evaluations. The City supplied all requested documents
except the consulting expert's report. The City followed the
procedures for withholding information set forth in section
552.301(d) of the Public Information Act and sought a ruling
from the Attorney General. The City asserted that the expert's
report was excepted from disclosure under section 552.103(a)
of the Act because the report was information relating to
litigation of a civil or criminal nature to which the state or
a political subdivision is or may be a party. TEX.GOV'T
CODE 552.103(a). The *330 Attorney General's office
issued a written ruling in which it concluded that the expert
report did fall within section 552.103(a). However, the ruling
further concluded that notwithstanding this exception, the
expert's report must be disclosed because it was a completed
report within the meaning of section 552.022(a)(1) and was
not expressly made confidential by other law.
The City filed suit against the Attorney General under
sections 552.324 and 552.325 of the Act, seeking a
Appendix 8

44 Tex. Sup. Ct. J. 434
declaratory judgment that it was not required to disclose the

report. The Austin American Statesman intervened in that
suit under section 552.325(a) of the Act, seeking a writ of
mandamus compelling disclosure, a declaratory judgment,
and attorney's fees. The trial court held a hearing only
on whether disclosure of the report was required. At the
conclusion of that hearing, the trial court issued a writ of
mandamus that directed the City to produce the expert's
report. The City promptly filed a petition for a writ of
mandamus in the court of appeals, which was denied without
an opinion.
The City then petitioned this Court to grant emergency relief
and issue a writ of mandamus directing the trial court to vacate
its order. We granted a stay of the trial court's order and
set the matter for oral argument. We have received amicus
briefs in opposition to the City's petition from the San Antonio
ExpressNews, the Texas Daily Newspaper Association, and
the Texas Press Association, and in support of the City's
petition from the Texas Association of Counties, the Texas
Municipal League, the Texas City Attorneys Association,
the Texas Water Conservation Association, and the Texas
Association of School Boards Legal Assistance Fund.
court held a hearing solely on the question of disclosure. The

trial court then issued an order directing the City to release the
consulting expert's report by noon the following day. Under
these circumstances, the City had no adequate remedy by
appeal, and mandamus is the appropriate procedural vehicle
to seek relief. See Walker v. Packer, 827 S.W.2d 833, 843
(Tex.1992).
We turn to the central issue in this case, which is whether the
Act requires the City to release its consulting expert's report.
*331 III
Public information is broadly defined in the Act as
information that is collected, assembled, or maintained
under a law or ordinance or in connection with the transaction
of official business ... by a governmental body; or ... for
a governmental body and the governmental body owns the
information or has a right of access to it. TEX.GOV'T CODE
552.002(a). Public information is to be available to the
public under section 552.021 with certain exceptions that are
found in the Act. One exception is information relating to
litigation of a civil or criminal nature to which the state or a
political subdivision is or may be a party. Id. 552.103(a).
II
[1] Before we consider the merits of the parties' respective
contentions, the procedural posture of this proceeding
warrants discussion. The trial court in this case was requested
to and did issue a writ of mandamus directing the City of
Georgetown to release a document. As a general proposition,
when rights may be enforced by suit in a trial court, review of
determinations by that court are through an appeal to a court
of appeals and then petition for review in this Court after entry
of a final judgment. See generally Love v. Wilcox, 119 Tex.
256, 28 S.W.2d 515, 521 (1930); see also TEX.CIV.PRAC.
& REM.CODE 51.012; TEX.R.APP.P. 53.1. This is so even
if the relief sought in the trial court is a writ of mandamus.
Love, 28 S.W.2d at 521. Where these ordinary remedies are
complete and adequate, the extraordinary original jurisdiction
of the Supreme Court or of the Court of Civil Appeals cannot
be successfully invoked. Id.
[2] The trial court in this case, however, chose not to dispose
of all issues, and accordingly did not render a final judgment.
Instead of resolving whether disclosure was required under
the Act at the same time that it resolved the only remaining
issues in the case, which were attorney's fee issues, the trial
The Austin AmericanStatesman stipulated in the trial court

that the document it seeks is covered by the litigation
exception embodied in section 552.103(a). The Attorney
General does not contend otherwise. Instead, those parties (to
whom we will refer collectively as the Statesman) assert that
none of the exceptions in Subchapter C of the Act, including
the litigation exception, apply to information that must be
disclosed under section 552.022(a). Among the categories of
information that must be disclosed under that section is a
completed report, ... evaluation, or investigation that is not
expressly confidential under other law. Id. 552.022(a)(1).
Until 1999, the litigation and other exceptions set forth
in Subchapter C of the Act applied to all information
that otherwise would have to be disclosed, including the
categories of information listed in section 552.022. The
pre 1999 version of section 552.022 emphasize[d] that its
categories [did] not limit the meaning of the Act's other
sections. City of Garland v. Dallas Morning News, 22
S.W.3d 351, 359 (Tex.2000). In City of Garland, we held that
a document was a final report under section 552.022, but we
also recognized that exceptions in Subchapter C, such as the
Appendix 8

44 Tex. Sup. Ct. J. 434
deliberative process privilege contained in section 552.111,

could except a final report from disclosure. Id. at 35960.
In 1999, the Legislature amended section 552.022. That
section of the Act now provides that the categories of public
information it lists are not excepted from required disclosure
under this chapter unless they are expressly confidential
under other law, meaning law other than Chapter 552
of the Government Code, which is the Public Information
Act. TEX.GOV'T CODE 552.022(a) (emphasis added).
Since the litigation exception is found in Chapter 552 of
the Government Code, that exception does not apply to the
categories of information enumerated in section 552.022(a).
The Statesman contends that the report at issue is a completed
report and that no other law expressly makes a consulting
expert's completed report confidential.
from public inspection any category of public information

described by Subsection (a) or to not produce the category
of public information for inspection or duplication, unless
the category of information is expressly made confidential
under other law.
TEX. GOV'T CODE 552.022(a), (b).
The term other law is not limited to other statutes. The

commonly understood meaning of law includes judicial
decisions and rules promulgated by the judiciary, such as
rules of procedure and evidence. Although we know of no
case in which this Court has had occasion to construe the term
other law when used in a statute, we have said that our rules
of procedure have the same force and effect as statutes.
Missouri Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex.1973)
(The Texas Rules of Civil Procedure have the same force
[3]
[4] The City has conceded in this Court that the and effect as statutes.) (citing Freeman v. Freeman, 160 Tex.
148, 327 S.W.2d 428, 433 (1959) (same)). Indeed, before
exceptions set forth in Subchapter C of the Act, including the
this Court adopted rules of civil procedure and evidence,
litigation exception, do not apply to information that must be
much of the law governing evidence and court procedures
disclosed under section 552.022(a). Nor does the City dispute
was contained in statutes. 1 In 1939, when the Legislature by
that its expert's report is completed within the meaning of
statute confer[red] upon and relinquish[ed] to this Court full
the Act. The City contends only that Texas Rules of Civil
Procedure 192.3(e) and 192.5 are other law that expressly
rule-making power, 2 it thereby acknowledged our authority
make consulting-expert reports confidential. Thus, we are
to make the law governing civil procedure and evidence. 3
presented with a very narrow issue. When the Legislature
The law of civil procedure and evidence did not become any
amended section 552.022, did it intend other law to include
less law simply because it moved from legislated statutes
the work-product and consulting-expert privileges codified in
to judicially promulgated rules.
the rules of procedure? We conclude that it did.
[5] The starting point in construing a statutory provision is
the provision itself. Section 552.022 refers to other law in
both subsections (a) and (b):
*332 (a) Without limiting the amount or kind of
information that is public information under this chapter,
the following categories of information are public
information and not excepted from required disclosure
under this chapter unless they are expressly confidential
under other law:
(1) a completed report, audit, evaluation, or investigation
made of, for, or by a governmental body, except as
provided by Section 552.108 [certain law enforcement and
prosecutorial information];
***
(b) A court in this state may not order a governmental
body or an officer for public information to withhold
The rules of procedure and evidence, as well as the

statutes that preceded them, have embodied work-product
and attorney-client privileges that have long been part of the
common law. The United States Supreme Court recognized
the work-product doctrine over fifty years ago in Hickman
v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
Former Rule 186a of the Texas Rules of Civil Procedure
was promulgated in 1957 to protect the work product of a
litigant or prospective litigant. See Ex parte Hanlon, 406
S.W.2d 204, 207 (Tex.1966) (observing that Rule 186a was
intended to protect work product). The origins of the attorneyclient privilege are even older. We noted in Ford Motor Co.
v. Leggat, 904 S.W.2d 643 (Tex.1995), that [t]he attorneyclient privilege has been recognized as the oldest of the
privileges for confidential communications known to the
common law. Id. at 647 (quoting United States v. Zolin,
491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)).
The work-product and attorney-client privileges have been
an integral part of our *333 law. The Legislature was fully
cognizant of this longstanding law and the procedural and
Appendix 8

44 Tex. Sup. Ct. J. 434
evidentiary rules embodying it when it used the broad term

other law.
The United States Supreme Court had occasion to interpret
the phrase all other law in Norfolk & Western Ry. v.
American Train Dispatchers Ass'n, 499 U.S. 117, 111 S.Ct.
1156, 113 L.Ed.2d 95 (1991). The issue was whether
a provision in the Interstate Commerce Act, 49 U.S.C.
11341(a), that exempted carriers from all other law
included legal obligations under a collective-bargaining
agreement. Id. at 127, 111 S.Ct. 1156. The Supreme Court
held that it did. The Court reasoned that the phrase all other
law, by itself, indicates no limitation. Id. at 129, 111 S.Ct.
1156. The Court further explained that the fact that there was
other language in addition to the coverage of all other law
did not detract from this breadth. Id. The words all other
law appeared in the phrase is exempt from the antitrust
laws and all other law, including State and municipal law.
49 U.S.C. 11341(a). The Supreme Court concluded that
this language was clear, broad, and unqualified and did
not allow any distinction between positive enactments and
common-law rules of liability. Norfolk & Western Ry., 499
U.S. at 128, 111 S.Ct. 1156.
The Statesman asks us to construe the words other law
narrowly to exclude our rules of procedure and evidence. It
offers no authority for such a restrictive reading of other
law. The Statesman readily concedes that if this Court were
to agree with its interpretation, not only work-product but
attorney-client privileged matters would have to be disclosed
by governmental entities if that information is contained in
a completed report, ... evaluation, or investigation. TEX.
GOV'T CODE 552.022(a)(1).
The interpretation of section 552.022 advocated by the
Statesman would have a profound impact on governmental
bodies. School boards, counties, and cities, to name but a
few governmental entities, could not obtain written legal
advice when making decisions or conducting operations.
Governmental entities would have to disclose all legal
advice and strategy to those with whom they were
negotiating contracts or other agreements, rendering the
process decidedly one-sided. Nor could governmental entities
engage in frank, searching self-evaluations that involved
legal counsel without disclosing those communications. As
a consequence, governmental entities might well choose to
forego fruitful self-analysis and decide not to seek needed
legal advice.
The ability of governmental entities to pursue and

defend claims would also be significantly impaired. All
governmental bodies would be required to conduct litigation
at a severe disadvantage since written legal advice and
strategy would have to be disclosed to opposing parties upon
request. Governmental entities would also be required to
disclose to their opponents written evaluations of settlement
strategies, which would impair a governmental entity's ability
to negotiate the lowest possible settlement. Taxpayers would
bear the increased costs.
Legislative intent to effectuate such a sweeping waiver
of the work-product and attorney-client privileges cannot
be gleaned from the words unless the category of
Id. 552.022(b). The rules of evidence expressly deem
certain attorney-client communications to be confidential
and permit a client to refuse to disclose confidential
communications under specifically delineated circumstances:
(5) A communication is confidential if not intended to
be disclosed to third *334 persons other than those to
whom disclosure is made in furtherance of the rendition of
professional legal services to the client or those reasonably
necessary for the transmission of the communication.
(b) Rules of Privilege
(1) General rule of privilege. A client has a privilege
to refuse to disclose ... confidential communications
made for the purpose of facilitating the rendition of
professional legal services to the client:
(A) between the client or a representative of the client
and the client's lawyer or a representative of the lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or
the client's lawyer or a representative of the lawyer, to
a lawyer or a representative of a lawyer representing
another party in a pending action and concerning a
matter of common interest therein;
(D) between representatives of the client or between the
client and a representative of the client; or
(E) among lawyers and
representing the same client.
representatives
TEX.R.EVID. 503(a)(5), (b)(1).
Appendix 8
their

44 Tex. Sup. Ct. J. 434
The rules of civil procedure delineate a category for

consulting experts whose mental impressions and opinions
have not been reviewed by a testifying expert. TEX.R.CIV.P.
192.3(e). The rules expressly provide that a party is not
required to disclose the identity, mental impressions, and
opinions of consulting experts. Id. A law does not have to use
the word confidential to expressly impose confidentiality.
The rules of procedure make it abundantly clear that
information about consulting experts is confidential. Id.
The rules of procedure also define with some precision the
categories of documents that comprise work product. Id.
at 192.5. Again, the rules do not have to use the word
confidential to make information confidential. The rules
expressly provide that certain types of work product do not
have to be disclosed, which means they are confidential.
There are provisions of section 552.022 other than the
phrase unless the category of information is expressly made
confidential under other law that reinforce the conclusion
that the Legislature did not intend to abrogate the State's or its
political subdivisions' right to withhold from disclosure work
product or matters covered by the attorney-client privilege.
TEX.GOV'T CODE 552.022(b). In subsection 552.022(a)
(16), the Legislature has provided that public information
includes information that is in a bill for attorney's fees and
that is not privileged under the attorney-client privilege.
TEX. GOV'T CODE 552.022(a)(16). The Legislature has
thus said that public information does not include information
subject to the attorney-client privilege in an attorney's bill to
the State or a political subdivision. That information does not
have to be disclosed. If the Legislature had intended for article
552.022 to sweep so broadly that it reached all attorneyclient and work-product information contained in final reports
or evaluations, why would it have taken pains to except
from disclosure brief descriptions of that same information in
attorney's bills under 552.022(a)(16)? If we were to accept the
Statesman's narrow interpretation of other law, a completed
evaluation of legal issues would have to be disclosed in its
entirety even though a reference to that evaluation in a bill for
attorney's fees would not have to be disclosed. *335 Section
552.022 cannot be given such a strained construction.
For the same reason, we cannot agree with the dissent's
interpretation of section 552.022. The dissent maintains that
if the Legislature had intended to preserve the attorneyclient and work-product privileges for all completed reports
and evaluations by references in 552.002(a) and (b) to
information that is expressly confidential under other law
and expressly made confidential under other law, then the

Legislature would not have needed to include in subsection
(a)(16) the phrase that is not privileged under the attorneyclient privilege. 53 S.W.3d at 331; TEX.GOV'T CODE
552.022(a)(16). The dissent argues that our construction
renders the reference in (a)(16) to the attorney-client privilege
surplusage.
That reasoning is unpersuasive. Any surplusage in
subsection (a)(16) is entirely consistent with other
surplusage in section 552.022. Subsection (b) of 552.022
overlaps with and largely, if not entirely, duplicates
subsection (a). These subsections provide, respectively:
(a) Without limiting the amount or kind of information
that is public information under this chapter, the following
categories of information are public information and not
excepted from required disclosure under this chapter unless
they are expressly confidential under other law:
***
under other law.
TEX. GOV'T CODE 552.022(a), (b).
The Legislature added the phrase in (a) that says and not
they are expressly confidential under other law at the same
time that it added subsection (b). 4 As we have seen, by
adding the foregoing phrase to (a) in 1999, the Legislature
for the first time eliminated the applicability of the exceptions
enumerated in Subchapter C to the information listed in
552.022, and required disclosure unless some law other than
the exceptions in the Act made the information confidential.
See supra 53 S.W.3d at 334.
In requiring disclosure of information within section
552.022's categories unless they are expressly confidential
under other law, the Legislature necessarily mandated that
a court could not order or permit a governmental body to
withhold information that the Act says must be disclosed. The
Legislature nevertheless repeated in subsection (b) what it
had already said in (a), which is that a court may not order
Appendix 8

44 Tex. Sup. Ct. J. 434
a governmental body to withhold from public inspection

any category of public information described by Subsection
(a) or to not produce the category of public information for
inspection or duplication, unless the category of information
is expressly made confidential under other law. TEX.GOV'T
CODE 552.022(b). It was unnecessary to include subsection
(b), but the Legislature did so. Similarly, the Legislature
did not need to say in subsection (a)(16) that information
in a bill for attorney's fees that is privileged under the
attorney- *336 client privilege is excepted from disclosure
since the Legislature had already said, not once but twice, in
section 552.022 that information expressly confidential under
other law does not have to be disclosed. But the Legislature
did. The only reasonable explanations for the redundancies
in section 552.022 about exceptions from disclosure when
information is expressly confidential under other law is
that the Legislature repeated itself out of an abundance of
caution, for emphasis, or both. There is no indication that
the Legislature intended the repetition in section 552.022 to
bring about a radical change in the application of attorneyclient, work-product, and consulting-expert privileges to
governmental entities.
The Texas Rules of Civil Procedure and the Texas Rules
of Evidence are other law within the meaning of section
552.022. The expert's report at issue in this case is within a
category of information expressly made confidential under
the rules of civil procedure. TEX.R.CIV.P. 192.3(e), 192.5.
IV
The Statesman argues that the City waived any privilege that
it may have had to withhold the consulting engineer's report
from disclosure. We disagree.
[6] The Statesman first contends that the City waived any
right to rely on the other law provision in section 522.022
because the City did not assert this section of the Act when
it requested the Attorney General to issue a ruling. It is true
that when the City requested a ruling, it said simply that its
consulting expert's report was excepted from disclosure by
section 552.103 of the Act. But the Act only precludes a
governmental body from relying on exceptions that it did not
raise with the Attorney General if they arise under Subchapter
C. Section 552.022 and its exception for information that
has been made confidential under other law are part of
Subchapter B, not Subchapter C. The Failure to Raise
Exceptions before Attorney General section of the Act does

not apply to exceptions set forth in Subchapter B:
552.326. Failure to Raise Exceptions before Attorney
General
(a) Except as provided by Subsection (b), the only
exceptions to required disclosure within Subchapter C
that a governmental body may raise in a suit filed under
this chapter are exceptions that the governmental body
properly raised before the attorney general in connection
with its request for a decision regarding the matter under
Subchapter G.
(b) Subsection (a) does not prohibit a governmental body
from raising an exception:
(1) based on a requirement of federal law; or
(2) involving the property or privacy interests of another
person.
TEX.GOV'T CODE 552.326 (footnotes omitted).
In its request for a ruling, the City was not required by the
Act to assert before the Attorney General that its expert report
fell within a category of information ... expressly made
confidential under other law. Id. 552.022(b).
[7] The Statesman also asserts waiver based on the fact
that the report at issue was attached to the City Manager's
self-evaluation. However, the trial court could not conclude
from this bare fact that there had been a waiver. The City
Attorney testified without contradiction in the trial court that
she requested the report for purposes of analyzing litigation.
The evidence is also uncontroverted that only employees of
the City involved in evaluating the litigation saw or had access
to the consulting expert's report, even though it *337 was
attached to the City Manager's self-evaluation. There is no
evidence in the record that the report was used for any purpose
other than evaluating pending or anticipated litigation. Based
on the record before us, the City conclusively established that
the report is privileged. See Jordan v. Court of Appeals for the
Fourth Supreme Judicial District, 701 S.W.2d 644, 64849
(Tex.1985) (holding that a party claiming a privilege has the
burden to establish that privilege and, if the matter for which
a privilege is sought has been disclosed to a third party, that
no waiver took place).
*****
Appendix 8

44 Tex. Sup. Ct. J. 434
We hold that if documents are privileged or confidential

under the Texas Rules of Civil Procedure or Texas Rules of
Evidence, they are within a category of information [that]
is expressly made confidential under other law within the
meaning of section 552.022 of the Public Information Act.
We further hold that the City has not waived its work-product
or consulting-expert privileges. We therefore conditionally
issue a writ of mandamus directing the trial court to vacate
its order granting a writ of mandamus in which it required
the City of Georgetown to produce records to the Austin
AmericanStatesman.
Justice HECHT, concurring.

I join fully in the Court's opinion and add a few words
only to emphasize that review of a trial court's decision
under sections 552.324 and 552.325 of the Public Information
Act 1 should ordinarily be by appeal, not by a petition to an
appellate court for writ of mandamus. 2 The choice of vehicle
is important because it may affect the standard of review,
although the outcome in this case would be no different had
review been pursued by appeal. Also, on appeal the court of
appeals is obliged to explain its decision by written opinion,
a requirement not imposed when it denies a petition for
mandamus in an original proceeding. 3 Here, because the trial
court ordered disclosure of the report sought within a few
hours after the hearing concluded and did not adjudicate the
attorney fees claim, the City's petitions for mandamus relief
in the court of appeals and this Court were proper.
Justice ABBOTT, dissenting, joined by Chief Justice

PHILLIPS and Justice BAKER.
When enacting Chapter 552 of the Public Information Act,
the Legislature enunciated a clear and unambiguous policy
statement: [I]t 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. TEX.
GOV'T CODE 552.001(a). The Act forcefully articulates
a policy of open government. A & T Consults., Inc. v. Sharp,
904 S.W.2d 668, 675 (Tex.1995). To effectuate this policy,
the Legislature mandated that the Act shall be liberally
construed in favor of granting a request for information.
TEX. GOV'T CODE 552.001(b).
To further these broad directives, the Legislature expressly
identified eighteen categories of information that are public
information and that must be disclosed upon request. TEX.
GOV'T CODE 552.022(a). The Legislature attempted to

safeguard its policy of open records by adding subsection
552.022(b), which limits *338 courts' encroachment on
its legislatively established policy decisions. That section
provides:
A court in this state may not order
a governmental body or an officer
for public information to withhold
from public inspection any category
of public information described by
Subsection (a) or to not produce the
category of public information for
inspection or duplication, unless the
category of information is expressly
made confidential under other law.
Id. 552.022(b). Subsection (b) makes clear that courts may
not order any information falling within the subsection (a)
categories to be withheld, unless the information is expressly
made confidential under other law. Id. But if this Court
has the power to broaden by judicial rule the categories
of information that are confidential under other law, then
subsection (b) is eviscerated from the statute. By determining
what information falls outside subsection (a)'s scope, this
Court may evade the mandates of subsection (b) and order
information withheld whenever it sees fit. This not only
contradicts the spirit and language of subsection (b), it guts it.
For these reasons and for those that follow, I dissent.
The eighteen categories of public information listed in
subsection (a) are not excepted from required disclosure
under [Chapter 552]. Id. 552.022(a). This language
plainly means that the exceptions to disclosure contained in
Subchapter C of the Act do not apply to these categories
of information. And, information falling within the scope of
subsection (a) may not be withheld unless the category of
Id. 552.022(b).
The first category of public information listed in subsection
(a) is a completed report, audit, evaluation, or investigation
made of, for, or by a governmental body, except as provided
by Section 552.108. Because section 552.108, the exception
for certain law-enforcement and prosecutorial records, does
not apply, the engineering report at issue falls within this
category. The report may also fall within the litigation
exception to disclosure (Section 552.103) or one of the other
Subchapter C exceptions, but, as noted, those exceptions do
not apply. Accordingly, under the plain language of section
Appendix 8

44 Tex. Sup. Ct. J. 434
552.022, the report can be withheld only if it is expressly

made confidential under other law.
If the Legislature considered our rules to be law, it would have

used the words other law rather than the law.
In construing the Act to determine whether the report is within

a category of information that is expressly made confidential
under other law and therefore can be withheld, the Court
should be guided by the legislative policy underlying the
Act. That policy instructs us to strictly construe the language
expressly made confidential under other law to ensure
disclosure to the full extent envisioned by the Legislature.
The more broadly the Court construes this language, the
more information may be withheld from disclosure, and the
more the legislative policy of public access to information is
thwarted.
Moreover, even if this Court's rules can be considered

other law, they do not expressly make confidential those
documents that are protected by the work-product and
The City contends that the report is privileged under the

work-product and consulting-expert privileges embodied in
Texas Rules of Civil Procedure 192.5 and 192.3(e) and is
therefore confidential under other law within the meaning
of section 552.022. But privileged is not the same as
confidential. These discovery privileges do not except
the report from disclosure under section 552.022(a). They
simply protect documents from discovery if the privilege
is properly asserted. Privileges are voluntary and may be
waived. That is why discovery privileges are recognized and
included within the permissive exceptions of sections 552.103
(litigation exception), 552.107(1) (certain legal matters),
*339 and 552.111 (agency memoranda) of the Act. But
those exceptions do not apply to public information under
section 552.022(a).
consulting-expert privileges. 1 The rules do not use the

term confidential in connection with these privileges.
Nevertheless, the Court contends, the rules do not have to use
the word confidential to make information confidential.
53 S.W.3d at 334. But the rules do have to use the word
confidential to expressly make information confidential.
The Court simply ignores the statute's unambiguous
requirement that the information be expressly made
confidential. How can it be said that the rules expressly
make documents confidential if the rules never even use the
word confidential? The Court rewrites the statute so that
expressly made confidential under other law means only
that information do[es] not have to be disclosed. 53 S.W.3d
at 331. Section 552.022(a) is unambiguous and should not
be construed to mean something other than what the plain
words say. See Fleming Foods v. Rylander, 6 S.W.3d 278,
284 (Tex.1999). It is the duty of a court to give to language
used in a statute the meaning with which it was used by
the legislature ... [and] the only safe rule is to apply to [the
words used] their ordinary meaning.... Boudreaux v. Tex. &
N.O.R. Co., 78 S.W.2d 641, 644 (Tex.Civ.App.Beaumont
1935, writ ref'd). The court-made rules do not expressly make
confidential information that is subject to the work-product
and consulting-expert privileges; nor does any other law.
The Court concludes that the Texas Rules of Civil Procedure

and the Texas Rules of Evidence constitute other law within
the meaning of section 552.022. But there is no indication
that the Legislature considered our rules to be other law. To
the contrary, our State Constitution makes clear that it is the
Legislature that promulgates laws and the power conferred
upon the legislature to make the laws cannot be delegated
by that department to any other body or authority. TEX.
CONST. art. III, 1 interp. commentary (Vernon 1997);
FM Properties Operating Co. v. City of Austin, 22 S.W.3d
868, 873 (Tex.2000) (the Texas Constitution vests legislative
power in the Legislature). Although the Legislature may have
delegated to the Court rule-making authority, it did not grant
us law-making authority. In fact, the Legislature provided that
[t]he supreme court may make and enforce all necessary
rules of practice and procedure, not inconsistent with the law,
for the government of the supreme court and all other courts of
the state. TEX.GOV'T CODE 22.003(b) (emphasis added).
In contrast to information subject to the work-product and

consulting-expert privileges, which is not expressly made
confidential by any law, numerous types of information are
expressly made confidential under other law. For example,
Texas Transportation Code section 681.003(d) provides that
[i]nformation concerning the name or address of a person
to whom a disabled parking placard is issued or in whose
behalf a disabled parking placard is issued is confidential....
TEX.TRANSP.CODE 681.003(d). *340 Section 21.355
of the Texas Education Code provides that [a] document
evaluating the performance of a teacher or administrator is
confidential. TEX.EDUC.CODE 21.355. Section 28.058
provides: All information regarding an individual student
received by the commissioner under this subchapter from
a school district or student is confidential. Id. 28.058.
And, Family Code section 58.106 makes confidential
information contained in the juvenile justice information
system and precludes its disclosure. TEX.FAM.CODE
Appendix 8

44 Tex. Sup. Ct. J. 434
58.106. This is just a small sample of the many examples

too numerous to listin which the Legislature has made
information expressly confidential. These confidentiality
provisions generally protect third parties' privacy, not that of
party litigants. And, in contrast to privileges, governmental
compliance with confidentiality laws is mandatory, and their
protections may not be waived by governmental entities.
In addition to expressly making certain information
confidential, the Legislature also often expressly excepts
information from the operation of the Public Information Act.
For example, Texas Health and Safety Code section 82.009,
which concerns data obtained from medical records, makes
that data confidential and expressly states that [i]nformation
that may identify an individual whose medical records have
been used for obtaining data under this chapter is not available
for public inspection under Chapter 552, Government Code.
TEX. HEALTH & SAFETY CODE 82.009(b). And,
Agriculture Code section 201.006 provides that, [e]xcept as
provided by this section, information collected by the state
board or a conservation district is not subject to Chapter 552,
Government Code. TEX. AGRIC. CODEE 201.006(a).
I include these citations to emphasize a simple point:
When the Legislature has intended to make information
confidential, it has not hesitated to so provide in express
terms. Birnbaum v. Alliance of Amer. Insurers, 994 S.W.2d
766, 776 (Tex.App.Austin 1999, pet. denied). Similarly,
when it desired certain information to be exempt from
public disclosure under Chapter 552, it unambiguously noted
that exception. But the Legislature has not expressly made
privileged information confidential or exempted it from
Chapter 552. Nor has the Legislature excepted privileged
information from section 552.022(a)(1). If the Legislature had
intended to exclude from mandatory disclosure information
related to litigation, it could easily have included the litigation
exception in the language of section 552.022(a)(1), the same
way it included section 552.108, the exception for lawenforcement and prosecutorial records.
That the Legislature does not consider the terms privileged
and confidential synonymous is further evidenced by the
terms' use within the Act. For example, in section 552.110,
the exception for trade secrets, the Legislature made an
express distinction between privileged and confidential:
A trade secret obtained from a person and privileged or
confidential by statute or judicial decision is excepted....
TEX. GOV'T CODE 552.110. And in section 552.131,
the Legislature again used privileged and confidential in
the disjunctive: This section does not affect whether

information is considered confidential or privileged under
Section 508.313. Id. 552.131(c).
More notably, section 552.022(a)(16) defines as public
information that is in a bill for attorney's fees and that
is not privileged under the attorney-client privilege. Id.
552.022(a)(16). Certainly, it would be unnecessary for
the Legislature to have included the language that is
not privileged under the attorney-client privilege *341
if the term confidential includes privileged information.
When it amended section (a)(16), which formerly excluded
information in a legal-fee bill that was privileged by the
attorney client privilege or confidential under other law, the
Legislature deleted or confidential under other law. With
the amendment, the deleted language became duplicative of
the unless they are expressly confidential under other law
language added to the introductory section of 552.022(a).
If the Legislature had deemed privileged information to be
within the scope of confidential under other law, it would
have also deleted the language referring to the attorney-client
privilege. Because it did not, we must assume that it means
something different. See Spradlin v. Jim Walter Homes, Inc.,
34 S.W.3d 578, 580 (Tex.2000) (we must give effect to all
words of a statute and avoid constructions that would treat
statutory language as surplusage). Moreover, the Legislature's
express exclusion of privileged matter in subsection (a)
(16) demonstrates that the Legislature considered privileged
information when it wrote section 552.022 and expressly
allowed only certain documents cloaked with the attorneyclient privilege to be withheld. The Legislature could have
shielded from disclosure other documents protected by
privilege, but it chose not to.
Section 552.022 provides:
(a) Without limiting the amount or kind of information
that is public information under this chapter, the following
categories of information are public information and not
they are expressly confidential under other law:
....
Appendix 8

44 Tex. Sup. Ct. J. 434

under other law.
TEX.GOV'T CODE 552.022 (emphasis added).
In an attempt to skirt the strictures of section 552.022(b), the
Court contends that: (1) subsection (a) and subsection (b) are
largely, if not entirely duplicative; (2) it was unnecessary
to include subsection (b), but the Legislature did so; (3)
the Legislature did not need to include the language that
information in an attorney fee bill that is privileged under
the attorney-client privilege is excepted from disclosure
since the Legislature already said twice that information
expressly confidential under other law does not have to
be disclosed; and (4) the only reasonable explanations for
the redundancies in section 552.022 about exceptions from
disclosure when information is expressly confidential under
other law is that the Legislature repeated itself out of an
abundance of caution, for emphasis, or both. 53 S.W.3d at
336.
First, subsections (a) and (b) are far from duplicative. In
fact, of the fifty-six words in subsection (b), only twelve
could be called duplicative of subsection (a). The italicized
language in subsection (b) is unique to that provision
and is obviously not duplicative of words in subsection
(a). Moreover, the two subsections have very different
purposes. Subsection (a)'s purpose is to create a set of super
public categories of information to which the exceptions to
disclosure contained in Subchapter C of the Act do not apply.
Subsection (b)'s purpose is to prevent courts from ordering
information withheld unless the information is expressly
made confidential *342 under some other law. Thus, far
from being duplicative, the two provisions use different
language and serve different purposes.
Second, the Court's conclusion that the redundancy of the
expressly confidential under other law language was the
result of caution or emphasis begs the question of why the
Legislature left in the express exception for information in a
fee bill that is privileged under the attorney-client privilege.
Even if subsections (a) and (b) were redundant, under the
Court's reasoning, the presence of redundancy anywhere in
the statute should lead us to entirely abandon the rule of
statutory construction that no language shall be treated as
surplusage.
The Court further questions: If the Legislature had
intended for article 552.022 to sweep so broadly that it
reached all attorney-client and work-product information
contained in final reports or evaluations, why would

it have taken pains to except from disclosure brief
descriptions of that same information in attorney's bills
under 552.022(a)(16)? 53 S.W.3d at 334. First, subsection
(a)(16) only excepts from disclosure information protected
by the attorney-client privilege, not work product or any
other privilege. Second, and more importantly, subsection
(a)(16) is a general provision requiring disclosure of
information in attorney-fee bills, and its exception for
attorney-client privileged information will still apply to many
categories of information. For example, brief descriptions of
conversations, communications, and the like are protected
by the attorney-client privilege exception in (a)(16).
Accordingly, it is inaccurate to say that the Legislature has
taken pains to except from disclosure brief descriptions
of information contained in final reports and evaluations
even though those reports and evaluations are nevertheless
made public under other subsections. Rather, the Legislature
has taken pains to except all attorney-client privileged
information in fee bills, even though some portion of the
underlying informationcompleted reports and evaluations
is otherwise made public under subsection (a).
Last, when the Legislature has intended to except information
made privileged or confidential by judicial decision, it has
expressly said so. As noted, section 552.110 excepts from
disclosure [a] trade secret obtained from a person and
privileged or confidential by statute or judicial decision.
TEX.GOV'T CODE 552.110. And, in section 552.101,
the Legislature excepted information considered to be
confidential by law, either constitutional, statutory, or by
judicial decision. Id. 552.101. But in section 552.022, the
Legislature chose not to expressly except information made
confidential by judicial decision or judicial rule. When the
Legislature has used a term in one section of a statute and
excluded it in another, the Court should not imply the term
where it has been excluded. See Smith v. Baldwin, 611 S.W.2d
611, 616 (Tex.1980) (When the Legislature has carefully
employed a term in one section of a statute, and has excluded
it in another, it should not be implied where excluded.). A
court may not judicially amend a statute and add words that
are not implicitly contained in the language of the statute.
Lee v. City of Houston, 807 S.W.2d 290, 29495 (Tex.1991)
(quoting Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902
(Tex.1988)).
Contrary to the City's outcry, interpreting the act to
require disclosure here does not open to the public all
litigation-related information. The litigation exception in
Appendix 8
10

44 Tex. Sup. Ct. J. 434
section 552.103 may be asserted with regard to all types

of information except those that fall within the scope of
552.022(a). Whether privileges may be asserted *343 to
withhold information will depend on the type of information
being sought and whether it is within the eighteen categories
of information that the Legislature has deemed public
information. Here, section 552.022(a)(1) requires the City to
release only one type of litigation-related informationthe
engineering report. But section 552.103, which specifically
excepts from disclosure information relating to litigation
involving the state or a political subdivision, still allows
the government to withhold a wide range of information
not subject to section 552.022(a) under a standardrelated
to litigationmuch broader than that actually used in
litigation. TEX.GOV'T CODE 552.103; see also Univ.
of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479,
48283 (Tex.App.Austin 1997, no writ). The Legislature
was aware of governmental entities' concerns regarding
privileged information and provided appropriate protections
by enacting section 552.103. But, as noted, the Legislature
clearly intended that exception not to apply to any of the
information listed in section 552.022(a).
The Court and the City are fair in concluding that this
interpretation of section 552.022 places an extra burden on
governmental entities because it requires them to disclose in a
litigation context certain documents that private parties would
not be required to produce. But it is within the Legislature's
province to make that call. We are bound to apply the statute's
words as written:
and if, so applying them, the
legislation in which they are found
seems to be harsh, ... the courts ...

are not authorized to place on them
a forced construction for the purpose
of mitigating a seeming hardship,
imposed by a statute, or conferring
a right which the legislature had not
thought proper to give. It is the duty
of a court to administer the law as it
is written, and not to make the law;
and however harsh a statute may seem
to be, or whatever may seem to be
its omission, courts cannot, on such
considerations, by construction sustain
its operation, or make it apply to cases
to which it does not apply, without
assuming functions that pertain solely
to the legislative department of the
government.
Boudreaux, 78 S.W.2d at 644.
While the Court's interpretation may have common sense
behind it, a strict construction of the statute does not support
it. Subsection (b)'s mandate that public information cannot be
withheld unless expressly made confidential under other law
is clear. Today, the Court abandons strict construction and
rewrites the statute to eliminate subsection (b)'s restrictions.
Accordingly, I dissent.
Parallel Citations
44 Tex. Sup. Ct. J. 434
Footnotes
1
2
3
4
1
2
3
1
A brief discussion of and citations to the former statutes can be found in Kent Caperton & Erwin McGee, Background,
Scope and Applicability of the Texas Rules of Evidence, 20 HOUS. L.REV. 49, 56 (1983).
Act of May 12, 1939, 46th Leg., R.S., ch. 25, 1, 1939 Tex.Gen. Laws 201 (former Tex.Rev.Civ.Stat. art. 1731a).
See TEX. CONST. art. V, 31.
Act of May 25, 1999, 76th Leg., R.S., ch. 1319, 5, 1999 Tex. Gen. Laws 4500, 450102.
TEX. GOV'T CODE 552.001 et seq.
See Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 521 (1930).
Compare TEX.R.APP.P. 47.1 and 52.8(d).
Although the Court includes a discussion of the attorney-client privilege and the Texas Rules of Evidence, they are not
at issue here. The City has asserted only the work-product and consulting-expert privileges in the Texas Rules of Civil
Procedure.
End of Document
Appendix 8
11
Kallinen v. City of Houston, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 576
2015 WL 1275385
NOTICE: THIS OPINION HAS NOT BEEN RELEASED
FOR PUBLICATION IN THE PERMANENT LAW
REPORTS. UNTIL RELEASED, IT IS SUBJECT TO
REVISION OR WITHDRAWAL.
Randall Kallinen and Paul Kubosh, Petitioners,
v.
The City of Houston, Respondent
NO. 140015
Opinion issued: March 20, 2015
Synopsis
Background: Petitioner filed suit against city to compel
disclosure of information relating to study of traffic light
cameras that city had commissioned. The 295th District
Court, Harris County, Caroline E. Baker, J., denied city's
plea to jurisdiction and entered judgment for petitioner. City
appealed. The Houston Court of Appeals, First District, 414
S.W.3d 815, reversed and rendered. Review was granted.
[Holding:] The Supreme Court held that opinion of Attorney

General as to application of exception from disclosure, which
had not been previously determined, was not mandatory
prerequisite to trial court's subject matter jurisdiction over suit
to compel disclosure.
On Petition for Review From the Court of Appeals for the

First District of Texas. Honorable Caroline E. Baker, Judge
David A. Furlow, Law Office of David A. Furlow,
P.C., Joseph R. Larsen, Sedgwick LLP, Houston TX, for
Petitioners.
David M. Feldman, Lynette Fons, City of Houston Legal
Department, John B. Wallace, Senior Assistant City Attorney,
Judith Lee Ramsey, Chief, General Litigation Section,
Houston TX, for Respondent.
Opinion
PER CURIAM
*1 The Texas Public Information Act (PIA), Chapter 552
of the Texas Government Code, guarantees access to public
information, subject to certain exceptions. Tex. Dep't Pub.
Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114
(Tex.2011). The PIA provides that when a governmental
body receives a written request for information for which it
wishes to claim an exception, it must timely seek a ruling
from the Attorney General if the exception's applicability to
the requested information has not previously beendetermined.
TEX. GOV'T CODE 552.301(a); see also id. 552.301(g).
But the PIA also provides that a requestor may sue to
compel disclosure of the information. TEX. GOV'T CODE
552.321(a). In this case, the court of appeals held that a trial
court lacks subject matter jurisdiction over such a suit until
the Attorney General rules. 414 S.W.3d 815, 820 (Tex.App.
Houston [1st Dist.] 2013). We disagree.
Invoking the PIA, Randall Kallinen requested information
from the City of Houston regarding a study of traffic light
cameras it had commissioned. The City produced a large
number of documents but withheld some and timely asked
the Attorney General for an opinion on whether the PIA
excepted the withheld information from disclosure. The PIA
gives the Attorney General forty-five business days to issue
opinions, though the time can beextended. TEX. GOV'T
CODE 552.306(a). But before this time elapsed and before
the Attorney General ruled, Kallinen sued for a writ of
mandamus to compel the City to disclose the withheld
information. The City moved to abate the lawsuit pending the
Attorney General's ruling, but the Attorney General closed
his file when he was alerted to the suit. At the time, the
Attorney General did not interpret the PIA to require an open
records ruling on issues already in litigation. See Tex. Att'y
Gen. OR2011687 (citing Tex. Att'y Gen. OR1990560 at
3 (declining to rule on sensitive information on the ground
the issues should be resolved in the pending Texas prison
litigation), and A & T Consultants, Inc. v. Sharp, 904 S.W.2d
668, 671 (Tex.1995) (noting in dicta that the Attorney General
withdrew his opinion pending litigation on PIA questions)).
The City filed a plea to the jurisdiction, arguing that the
court lacked jurisdiction over the suit until the Attorney
General ruled. The district court overruled the plea, granted
summary judgment for Kallinen, ordered disclosure of many
Appendix 9

58 Tex. Sup. Ct. J. 576
of the withheld documents, and awarded Kallinen $175,664

in attorney fees through appeal to this Court.
The City complied with the order to disclose but appealed the
attorney fee award. The parties agree that the only basis for
the trial court's jurisdiction is Section 552.321(a) of the PIA.
That provision, with subsections inserted in brackets for ease
of reference, conditions the court's exercise of jurisdiction as
follows:
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
[A] refuses to request an attorney
general's decision ... or [B] refuses to
supply [1] public information or [2]
information that the attorney general
has determined is public information
that is not excepted from disclosure.
*2 TEX. GOV'T CODE 552.321(a). The parties agree
that conditions A and B2 do not apply. The court of
appeals reasoned that condition B1 cannot apply when the
governmental body is challenging whether an exception to
disclosure applies because the information has not yet been
determined to be public. 414 S.W.3d at 818. Accepting the
City's argument, the court stated that the Attorney General
must determine whether information is subject to disclosure
when asked to do so, that he has exclusive jurisdiction to make
that determination in the first instance, that the requestor of
information must exhaust all administrative remedies before
suing, and that therefore a trial court's jurisdiction over a
requestor's suit only arises after the Attorney General has
ruled. Id. at 81820.
But we have reviewed the Attorney General's rulings. See

Cox Tex. Newspapers, L.P., 343 S.W.3d at 113; In re
City of Georgetown, 53 S.W.3d 328, 32936 (Tex.2001).
And we have interpreted PIA exceptions without a ruling
by the Attorney General. See City of Garland v. Dall.
Morning News, 22 S.W.3d 351, 35864 (Tex.2000); A & T
Consultants, Inc., 904 S.W.2d at 671, 67481. The court of
appeals' interpretation ignores these cases.
The City argues, and the court of appeals held, that requestors
of information should be required to exhaust their remedies in
placing disputes before the Attorney General before resorting
to the courts. But requestors have no such remedies. While
the Attorney General may invite their arguments, they have
no right to request or demand a ruling or disclosure from the
Attorney General, and no right to an administrative appeal.
See TEX. GOV'T CODE 552.304. Requestors cannot be
required to finish something they have no right to start. The
requirement that a governmental body seek a ruling from the
Attorney General when withholding requested information
is a check on the governmental body, not a remedy for
the requestor to exhaust. And again, the City's view of
Section 552.321(a) would make the Attorney General's ruling
unreviewable.
The City argues that because information is generally

presumed to be subject to required public disclosure
when a governmental body fails to timely request an
Attorney General's ruling, TEX. GOV'T CODE 552.302,
the information should not be considered public when a ruling
is requested. But the premise cannot establish its converse.
One may infer from a governmental body's failure to request
a ruling that the body is not claiming an exclusion, else it
would advance its position in compliance with prescribed
procedures. See TEX. GOV'T CODE 552.301. One cannot
likewise infer that just because a governmental body properly
seeks an Attorney General's ruling, its exclusion claim must
[1]
[2] The City's position is flawed in several respects.
be correct.
First, it equates information that is public with information
that has been determined by the Attorney General to be
The Attorney General advises in an amicus brief that he does
public, so that condition B2 swallows up condition B1. This
not claim exclusive jurisdiction to decide open records issues.
violates a duty of statutory interpretation to give effect to
Consistent with that position, at the time of the City's request
all the words of a statute and not treat any statutory language
for a ruling, as noted above, the Attorney General's policy
as surplusage if possible. Chevron Corp. v. Redmon, 745
was not to rule on issues in litigation. See Tex. Att'y Gen.
S.W.2d 314, 316 (Tex.1987).
OR2011687. In reversing that policy, he does not claim the
authority to rule without court review.
Further, the City's view of Section 552.321(a) would relegate
mandamus relief to compelling a governmental body to
*3 A requestor of information certainly has the choice
request an Attorney General's decision and then comply with
to await the Attorney General's decision. A governmental
it. The correctness of that decision would be unreviewable.
Appendix 9

58 Tex. Sup. Ct. J. 576
GOV'T CODE 552.011, and the Office of the Attorney

General is experienced in interpreting and applying the
subchapter C exceptions. If the court determines that under
the circumstances of a particular case a decision from
the Attorney General before adjudication of the merits of
disclosure would be beneficial and any delay would not
impinge on a requestor's right to information, abatement
[3] [4] A court may decide, exercising sound discretion, would be within the court's discretion.
to abate proceedings to await the Attorney General's ruling.
The court of appeals erred in dismissing Kallinen's suit for
The Attorney General characterizes its authority as akin to
want of jurisdiction. Accordingly, we grant the petition for
primary jurisdiction, a prudential doctrine that applies when
review and, without hearing oral argument, reverse the court
an agency is staffed with experts trained in handling the
of appeals' judgment and remand to that court for further
complex problems in the agency's purview and there is
proceedings in accordance with this opinion. TEX. R. APP.
a benefit to be derived from [the] agency[ ] uniformly
P. 59.1.
interpreting its laws, rules, and regulations. Subaru of
Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,
221 (Tex.2002). The Legislature has expressly charged
Parallel Citations
the Attorney General with maintaining uniformity in the
application, operation, and interpretation of the PIA, TEX.
58 Tex. Sup. Ct. J. 576
body may decide to release the requested information during

the process and on receipt of an adverse opinion from the
Attorney General. Efficiency may counsel patience. But the
governmental body is entitled to insist on its position to a final
ruling, see TEX. GOV'T CODE 552.324, and a requestor is
not required to defer a suit for mandamus.
End of Document
Appendix 9
Mower v. Boyer, 811 S.W.2d 560 (1991)
811 S.W.2d 560

Lowell Kendall MOWER, Jr., Petitioner,
v.
Jack BOYER, Respondent.
No. D0467.
June 19, 1991.
Creditor sued debtors on note and obtained grant of partial

summary judgment on all issues other than receipt of
consideration and attorney fees. When debtor subsequently
died, creditor brought suit in Probate Court on same
note against debtor's estate. The Probate Court rendered
judgment for estate, and estate filed motion for summary
judgment in District Court, asserting that Probate Court's
judgment had preclusive effect. The 61st District Court,
Harris County, Shearn Smith, J., denied estate's motion, and
entered judgment for creditor. Debtor appealed. The Court
of Appeals, Fourteenth Judicial District, Ross A. Sears, J.,
795 S.W.2d 292, affirmed. On further review, the Supreme
Court, Cook, J., held that: (1) District Court's grant of partial
summary judgment was not final order entitled to res
judicata or collateral estoppel effect, but (2) Probate Court's
decision that note had been satisfied precluded relitigation of
issue in District Court.

*561 Kathleen W. Osman, Andy Taylor, Laura Gibson,
Houston, for petitioner.
Dale F. Carrington, David P. Willis, Houston, for respondent.
*562 OPINION
COOK, Justice.
This case involves two inconsistent final judgments in two
actions brought by the same creditor on the same promissory
note. The first final judgment was rendered by the probate
court, the second by the district court. We hold that the finding
of the probate court that the note had been fully satisfied
precluded the district court from rendering judgment for the
creditor, Boyer.
Jack Boyer sued Lowell Kendall Mower, Jr., L. Kendall

Mower, Sr., and Patricia Mower for allegedly failing to
make any payments on a $15,000 note signed by Mower Jr.
and Mower Sr. The district court rendered an interlocutory
partial summary judgment against Mower Jr. and Mower Sr.,
stating in its written order that Summary Judgment should
be granted on all issues, except recei[pt] of consideration and
the amount of the attorney's fees. The Mowers' pleadings,
as amended before the trial court signed its written order,
generally denied Boyer's allegations and raised lack of
consideration as an affirmative defense.
Mower Sr. died while the district court action was still
pending, and Boyer brought an action on the same note in
probate court against the decedent's estate. After trial on the
merits, the probate court rendered judgment that Boyer take
nothing, on the ground that the note had been fully satisfied.
Boyer did not appeal this judgment.
In the district court action, Mower Jr. moved to set aside
the partial summary judgment, amended his answer to plead
satisfaction and the preclusive effect of the probate court's
judgment, and moved for summary judgment on these
grounds. The district court denied his motion for summary
judgment, tried the issues of consideration and attorney's
fees, and rendered judgment for Boyer against Mower Jr.
only. 1 The court of appeals affirmed, holding that res
judicata precluded Mower Jr. from raising satisfaction as an
affirmative defense in the probate court because he failed
to raise it in the prior summary judgment proceeding in the
district court. 795 S.W.2d 292, 293. The court of appeals
also held that the district court's partial summary judgment
was final for collateral estoppel purposes and precluded the
probate court from determining the issue of liability against
Boyer. 795 S.W.2d at 293. We reverse the judgment of the
court of appeals and render judgment for Mower Jr.
[1]
[2] At the outset, we note that the district court's
interlocutory partial summary judgment was not entitled to
either res judicata or collateral estoppel effect. A partial
summary judgment that is interlocutory and non-appealable
is not final and cannot support a plea of res judicata. See
Homeright Co. v. Exchange Warehouses, Inc., 526 S.W.2d
241, 24445 (Tex.Civ.App.Tyler 1975, writ ref'd n.r.e.);
Restatement (Second) of Judgments 13 (1982). In this case,
the interlocutory partial summary judgment was not final
because it expressly left open the issue of consideration, and
thus it was not entitled to res judicata effect.
Appendix 10
Mower v. Boyer, 811 S.W.2d 560 (1991)
[3] Nor was the partial summary judgment entitled to

collateral estoppel effect on the issue of satisfaction of the
note. A prior adjudication of an issue will be given estoppel
effect only if it was adequately deliberated and firm. The
factors to be considered in making this determination are
(1) whether the parties were fully heard, (2) that the court
supported its decision with a reasoned opinion, and (3) that
the decision was subject to appeal or was in fact reviewed
on appeal. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d
1, 6 (Tex.1986); Van Dyke v. Boswell, O'Toole, Davis &
Pickering, 697 S.W.2d 381, 385 (Tex.1985); Restatement
(Second) of Judgments 13, comment g (1982). The
interlocutory partial summary judgment of the district court
does not meet any of these criteria, as the issue of satisfaction
was not expressly raised or decided, the decision was not
supported by a reasoned opinion, *563 and the judgment
was not reviewable by appeal.
the district court. In the district court, however, he was not

entitled to challenge the probate court's judgment by collateral
attack. Given that the probate court proceeded to judgment
first, its judgment was not void, and the partial summary
judgment of the district court was not entitled to preclusive
effect, the only remaining question is whether the probate
court's judgment precluded the district court from rendering
judgment for Boyer.
[7] Relitigation of an issue will be barred by collateral

estoppel if (1) the facts sought to be litigated in the first
action were fully and fairly litigated in the prior action;
(2) those facts were essential to the judgment in the first
action; and (3) the parties were cast as adversaries in the
first action. Eagle Properties v. Scharbauer, 807 S.W.2d
714, 721 (Tex.1991); Bonniwell v. Beech Aircraft Corp., 663
S.W.2d 816, 818 (Tex.1984). For collateral estoppel to be
invoked, it is only necessary that the party against whom the
[4] [5] [6] Although the partial summary judgment in plea of collateral estoppel is being asserted be a party or in
privity with a party in the prior litigation. Eagle Properties,
the district court was not entitled to preclusive effect, the
at 72022; Tarter v. Metropolitan Sav. & Loan Ass'n, 744
final judgment of the probate court on Boyer's claim against
S.W.2d 926, 927 (Tex.1988).
Mower Sr.'s estate was entitled to preclusive effect in the
district court. When a probate court exercises jurisdiction
[8] Each of the requirements for collateral estoppel is met
over a decedent's estate, its judgment, regular on its face,
in the present case. First, the issue of satisfaction was fully
is immune from collateral attack. Graham v. Graham, 733
and fairly litigated in the probate court, which decided the
S.W.2d 374, 37778 (Tex.App.Amarillo 1987, writ ref'd
issue against Boyer. Second, the satisfaction of the note was
n.r.e.); Wybrants v. Lehman, 307 S.W.2d 339, 34142
the basis for the probate court's decision, so it was clearly
(Tex.Civ.App.Eastland 1957, writ ref'd n.r.e.); see also
essential to its judgment. Third, Boyer was both plaintiff in
Dallas Joint Stock Land Bank of Dallas v. Forsyth, 130 Tex.
district court and claimant in probate court, seeking to recover
563, 109 S.W.2d 1046, 1050 (1937), reh'g granted in part
on the same note in both actions. Therefore, we conclude that
and overruled in part, 130 Tex. 563, 112 S.W.2d 173 (1938)
the district court erred in failing to give collateral estoppel
(probate court acting within its statutory powers is a court
effect to the probate court's determination that Boyer could
of general jurisdiction and its judgments are immune from
not recover on the note because it had been fully satisfied. 3
collateral attack). 2 Neither party contends that the probate
court's judgment is void. If Boyer wished to challenge the
judgment of the probate court on the ground that it should
have been precluded by the partial summary judgment in
the district court, he could have appealed the judgment of
the probate court and asserted this argument on appeal. He
chose not to do so, and instead proceeded to try his case in
*564 For the reasons stated, we reverse the judgment of the

court of appeals and render judgment that Jack Boyer take
nothing on his claim against Lowell Kendall Mower, Jr.
Footnotes
1
2
The trial court granted Boyer's motions to non-suit Patricia Mower and the estate of the late Mower Sr., leaving Mower
Jr. as the sole remaining defendant in district court.
As a general rule, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate
courts, and any subsequent suit involving the same parties and the same controversy must be dismissed if a party to the
subsequent suit calls the second court's attention to the pendency of the prior suit by a plea in abatement. Wyatt v. Shaw
Plumbing Co., 760 S.W.2d 245, 24748 (Tex.1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974). However, if the
second court has jurisdiction over the subject matter and the proper party does not file a dilatory plea in abatement in
Appendix 10
Mower v. Boyer, 811 S.W.2d 560 (1991)
the second court at the proper stage, the second court can determine the issues before it and if it proceeds to judgment
first, its judgment may have preclusive effect on the pending proceeding in the other court. See Estate of Maxey, 559
S.W.2d 458, 46061 (Tex.Civ.App.Texarkana 1977, writ ref'd n.r.e.). On the record before us, it appears that an order
of abatement was neither sought nor obtained in the probate court.
Because we decide this case on the narrower ground of collateral estoppel, we do not reach the question whether the
probate court's judgment was entitled to res judicata effect.
End of Document
Appendix 10
Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (2004)
47 Tex. Sup. Ct. J. 386
133 S.W.3d 217

TEXAS DEPARTMENT OF PARKS
AND WILDLIFE, Petitioner,
v.
Maria MIRANDA and Ray Miranda, Respondents.
No. 010619.
30, 2002. |
| Argued Oct.
April 2, 2004.
Synopsis
Background: Visitor to state park and her husband sued the
Parks and Wildlife Department for personal injuries visitor
sustained when a tree limb fell on her head. The 38th Judicial
District Court, Uvalde County, Mickey R. Pennington, J.,
denied Department's plea to the jurisdiction. Department
appealed. The San Antonio Court of Appeals, 55 S.W.3d 648,
affirmed. Review was granted.
Phillips, C.J., and Hecht and Smith, JJ., joined part III.C.1 of
Justice Wainwright's opinion.
Wallace B. Jefferson, J., filed a dissenting opinion.
Scott Brister, J., filed a dissenting opinion in which O'Neill
and Schneider, J., joined.

*220 Howard G. Baldwin, First Asst. Atty. Gen., Jeffrey
S. Boyd, Thompson & Knight, Harry W. Deckard, Office
of Attorney General, Nelly R. Herrera, Office of Attorney
General, Julie Caruthers Parsley, Public Utility Com'n, and
Lisa Royce Eskow, Attorney General's Office, Austin, for
Petitioner.
Emmett R. Harris, Law Office of R. Emmett Harris, Jerry Don
Evans, Uvalde, TX, for Respondent.
Opinion
Holdings: The Supreme Court, J. Dale Wainwright, J., held

that:
[1] in ruling on the plea to the jurisdiction, the trial court could
consider evidence beyond the allegations in the pleadings,
disapproving of Sullivan v. Wilmer Hutchins Indep. Sch.
Dist., 47 S.W.3d 529, Denton County v. Howard, 22 S.W.3d
113, Tex. Dep't of Mental Health & Mental Retardation
v. Pearce, 16 S.W.3d 456, Tex. State Employees Union/
CWA Local 6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61,
DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 654,
Univ. of Houston v. Elthon, 9 S.W.3d 351, Curbo v. State,
Office of the Governor, 998 S.W.2d 337, City of Saginaw v.
Carter, 996 S.W.2d 1, and Bland Indep. Sch. Dist. v. Blue,
989 S.W.2d 441, and
[2] Parks and Wildlife Department did not act with gross
negligence, and thus, Department had sovereign immunity
under Texas Tort Claims Act and recreational use statute.

Phillips, C.J., and Hecht, Owen, and Smith, JJ., joined parts
I, II, III.A, III.B, III.C.2, III.C.3, III.D, and IV of Justice
Wainwright's opinion.
Justice WAINWRIGHT delivered the opinion of the Court

with respect to parts I., II., III.A., III.B., III.C.2., III.C.3.,
III.D., and IV., in which Chief Justice PHILLIPS, Justice
HECHT, Justice OWEN, and Justice SMITH joined, and
a plurality opinion with respect to Part III.C.1., in which
Chief Justice PHILLIPS, Justice HECHT, and Justice SMITH
joined.
Maria Miranda sustained injuries after a tree limb fell on her at
Garner State Park in Uvalde County. Maria and her husband
Ray sued the Texas Parks and Wildlife Department, 1
alleging negligence and *221 gross negligence. The
Department filed a plea to the jurisdiction, to which it attached
supporting evidence, and argued that sovereign immunity
barred the Mirandas' claims. The trial court denied the plea
to the jurisdiction and a unanimous court of appeals affirmed,
holding that the trial court could not consider evidence in
support of the plea because the Department did not allege
that the Mirandas' pleadings were a sham for the purpose of
wrongfully obtaining jurisdiction. 55 S.W.3d 648, 652.
In accord with our decision in Bland Independent School
District v. Blue, 34 S.W.3d 547 (Tex.2000), we hold that the
trial court in this case was required to examine the evidence
on which the parties relied to determine if a fact issue existed
regarding the alleged gross negligence of the Department.
Due to the unusual confluence of standards erected by the
Legislature for waiver of sovereign immunity in the Texas
Appendix 11
47 Tex. Sup. Ct. J. 386
Tort Claims Act and the recreational use statute, plaintiffs

must plead gross negligence to establish subject matter
jurisdiction. Further, if the plaintiffs' factual allegations
are challenged with supporting evidence necessary to
consideration of the plea to the jurisdiction, to avoid dismissal
plaintiffs must raise at least a genuine issue of material fact
to overcome the challenge to the trial court's subject matter
jurisdiction. Because the Mirandas failed to raise a genuine
issue of material fact regarding the alleged gross negligence
of the Department, we conclude that the trial court lacked
subject matter jurisdiction over this lawsuit. Therefore, we
reverse the judgment of the court of appeals and render
judgment dismissing the case.
I. Factual and Procedural Background

The Mirandas' third amended petition contains the following
allegations: In April 1998, the Mirandas and their family
were camping and picnicking as paying guests at Garner State
Park, owned and operated by the Texas Parks and Wildlife
Department. The Mirandas asked a park ranger to recommend
a campsite that would be safe for children. While standing
next to a picnic table at the recommended campsite, a falling
tree branch approximately twelve inches in diameter and
fifteen feet long struck Maria on the head. As a result of the
incident, Maria suffered extensive injuries to her head, neck,
and spine. Ray suffered mental anguish and other damages
related to his wife's injuries.
On May 7, 1999, the Mirandas filed suit against the
Department, alleging negligence and later amended their suit
to add gross negligence claims. With respect to the gross
negligence claims, the Mirandas alleged that the Department
knew of the dangers of its falling tree branches, failed
to inspect, failed to prune, failed to alleviate or remove
the danger, and consciously and deliberately failed to warn
Plaintiffs of the extremely dangerous condition, knew that
its property contained hidden, dangerous defect [sic] in that
its tree branches which have not been inspected or pruned
regularly fall, failed to make safe the dangerous condition
of its campsite trees, and failed to warn or make reasonably
safe the dangerous condition of which it was aware. In
addition, the Mirandas alleged that the Department's conduct
was willful, wanton, or grossly negligent.
Over a year after the Mirandas filed suit and after the parties
conducted discovery, the Department filed a plea to the
jurisdiction *222 and motion to dismiss, arguing that the
Mirandas' allegations were insufficient to invoke a waiver

of the Department's sovereign immunity under the standard
established in the Tort Claims Act and the recreational use
statute. 2 TEX. CIV. PRAC. & REM. Code 101.001.109;
id. 75.001.004. The Department attached evidence in
support of its plea. The Mirandas filed a response to the
Department's plea and their third amended original petition.
In their response, the Mirandas stated that they relied
on evidence attached to the Department's plea, including
written discovery responses from the Department and the
deposition the Mirandas took of assistant park manager Craig
VanBaarle. At the trial court's hearing on the Department's
plea, the parties addressed the allegations in the Mirandas'
third amended original petition. The next day, the trial court
denied the plea. The Department filed this interlocutory
appeal claiming that the trial court erroneously denied its plea
to the jurisdiction and motion to dismiss. Id. 51.014(a)(8).
The court of appeals affirmed the trial court's denial of the
plea, stating that the Mirandas pled a premises defect cause
of action based on gross negligence under the recreational
use statute. 55 S.W.3d at 652. The court of appeals rejected
the Department's argument that there was no evidence to
support gross negligence, holding that the trial court was not
authorized to inquire into the substance of the claims because
the Department did not specifically allege that the Mirandas'
allegations were pled merely as a sham for the purpose
of wrongfully obtaining jurisdiction. Id. (citing Bland, 34
S.W.3d at 554 and Rylander v. Caldwell, 23 S.W.3d 132, 135
(Tex.App.-BAustin 2000, no pet.)).
The Department contends that the court of appeals erred in
relying solely upon the conclusory allegations found in the
Mirandas' petition to affirm the trial courts denial of the
Department's plea to the jurisdiction and in disregarding the
Department's evidence submitted with its plea. Specifically,
the Department contends that gross negligence is a
jurisdictional prerequisite to the Mirandas' claims and that
its evidence affirmatively negates gross negligence. The
Department further argues that because the Mirandas failed
to plead specific facts alleging gross negligence in their
petition or introduce evidence to controvert the evidence in
the Department's plea, they failed to establish subject matter
jurisdiction to proceed with the litigation.
After originally dismissing the petition for want of
jurisdiction, we granted the Department's petition on motion
for rehearing. Before we consider the substantive issues
presented, we first determine whether we have jurisdiction
over this interlocutory appeal.
Appendix 11
47 Tex. Sup. Ct. J. 386
pleaded merely as a sham for the purpose of wrongfully

obtaining jurisdiction. Id.
II. Conflicts Jurisdiction
[1] When there is no dissent in the court of appeals, this
Court has jurisdiction over interlocutory appeals only if the
court of appeals' decision holds differently or conflicts
with a prior decision of another court of appeals or of the
supreme court on a question of law material to a decision
of the case. TEX. GOV'T CODE 22.001(a)(2); 3 *223
Schein v. Stromboe, 102 S.W.3d 675, 687 (Tex.2002); Tex.
Natural Res. Conservation Comm'n v. White, 46 S.W.3d
864, 867 (Tex.2001). Two decisions conflict for purposes
of establishing our jurisdiction under section 22.001(a)(2)
when the two cases are so similar that the decision in one
case is necessarily conclusive of the decision in the other.
Schein, 102 S.W.3d at 68788; White, 46 S.W.3d at 867.
The conflict must be on the very question of law actually
involved and determined, in respect of an issue in both cases,
the test being whether one would operate to overrule the other
in case they were both rendered by the same court. Christy
v. Williams, 156 Tex. 555, 298 S.W.2d 565, 56869 (1957)
(citation omitted).
The Department contends that this Court has jurisdiction over
its interlocutory appeal because the court of appeals' decision
here conflicts with our opinion in Bland. In Bland, we held
that a trial court may consider evidence and must do so
when necessary to resolve the jurisdictional issues raised.
34 S.W.3d at 555 (emphasis added). While recognizing that
a dilatory plea does not authorize an inquiry so far into
the substance of the claims presented that plaintiffs are
required to put on their case simply to establish jurisdiction,
we explained that because a court must not act without
determining that it has subject-matter jurisdiction to do so,
it should hear evidence as necessary to determine the issue
before proceeding with the case. Id. at 554. The court
should, of course, confine itself to the evidence relevant to the
jurisdictional issue. Id. at 555.
[2]
[3] In this case, the court of appeals inaccurately
stated and then misapplied Bland's holding. 55 S.W.3d at
65052. The court of appeals held that an inquiry behind
the factual allegations pled in support of subject matter
jurisdiction was improper unless the Department specifically
alleged that the Mirandas' allegations were pled merely as
a sham to wrongfully obtain jurisdiction. Id. at 652. This
conflicts with our holding in Bland that a court must consider
evidence when necessary to resolve the jurisdictional issues
raised. 34 S.W.3d at 555; see also County of Cameron v.
Brown, 80 S.W.3d 549, 55657 (Tex.2002) (considering
pleadings and limited jurisdictional evidence in evaluating
forseeability element of premises defect claim under the
Tort Claims Act); Tex. Dep't of Criminal Justice v. Miller,
51 S.W.3d 583, 587 (Tex.2001) (examining pleadings and
limited jurisdictional evidence to determine whether plaintiff
affirmatively demonstrated waiver of sovereign immunity);
White, 46 S.W.3d at 868 (analyzing the facts alleged by the
plaintiff and to the extent relevant, evidence submitted by
the parties, in considering whether plaintiff stated a claim
for injuries caused by motor-driven equipment under the
Tort Claims Act). *224 In Bland, our preclusion of a trial
court's inquiry behind the facts pled in determining subject
matter jurisdiction was limited to the jurisdictional amount.
34 S.W.3d at 554. Even this bar could be lifted, and evidence
of the jurisdictional amount considered, in circumstances
in which an adverse party asserts that the amount in
controversy was pled as a sham to obtain jurisdiction. 4 Id.
That circumstance is not at issue here. Thus, the court of
appeals' holding conflicts with the same question of law that
we decided in Bland, and the opinions cannot stand together.
Schein, 102 S.W.3d at 689. This conflict provides the basis
for our jurisdiction to consider the merits of the plea. See Tex.
Gov't Code 22.001(a)(2).
III. The Department's Plea to the Jurisdiction

In Bland, we included examples of when relevant evidence
may be considered in determining whether jurisdiction has
been established. See id. at 554. We also observed that when
the defendant contends that the amount in controversy falls
below the trial court's jurisdictional limit, the trial court
should limit its inquiry to the pleadings. Id. In that situation,
we concluded, the plaintiff's pleadings are determinative
unless the defendant specifically alleges that the amount was
A. Sovereign Immunity
[4] [5] In Texas, sovereign immunity deprives a trial court
of subject matter jurisdiction for lawsuits in which the state
or certain governmental units have been sued unless the state
consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex.1999); Fed. Sign v. Tex. S. Univ., 951 S.W.2d
Appendix 11
47 Tex. Sup. Ct. J. 386
401, 405 (Tex.1997), superseded by statute on other grounds

as stated in LittleTex Insulation Co., 39 S.W.3d at 593;
Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Hosner v.
DeYoung, 1 Tex. 764, 769 (1847). The Texas Tort Claims
Act provides a limited waiver of sovereign immunity. TEX.
CIV. PRAC. & REM.CODE 101.001.109. Sovereign
immunity includes two distinct principles, immunity from
suit and immunity from liability. Jones, 8 S.W.3d at 638;
Fed. Sign, 951 S.W.2d at 405. Immunity from liability is
an affirmative defense, while immunity from suit deprives a
court of subject matter jurisdiction. Jones, 8 S.W.3d at 638;
Fed. Sign, 951 S.W.2d at 405. The Tort Claims Act creates
a unique statutory scheme in which the two immunities are
co-extensive: Sovereign immunity to suit is waived and
abolished to the extent of liability created by this chapter.
TEX. CIV. PRAC. & REM.CODE 101.025(a); State ex
rel. State Dep't of Highways & Pub. Transp. v. Gonzalez,
82 S.W.3d 322, 326 (Tex.2002); Miller, 51 S.W.3d at 587.
Thus, the Department is immune from suit unless the Tort
Claims *225 Act expressly waives immunity. See TEX.
CIV. PRAC. & REM.CODE 101.001(3)(A) (defining a
governmental unit to include all departments of the state),
101.021, 101.025; White, 46 S.W.3d at 868.
The Tort Claims Act expressly waives sovereign immunity in
three areas: use of publicly owned automobiles, premises
defects, and injuries arising out of conditions or use of
property. Brown, 80 S.W.3d at 554 (quoting Tex. Dep't of
Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000)); see TEX.
CIV. PRAC. & REM CODE 101.021. Section 101.058 of
the Tort Claims Act further modifies a governmental unit's
waiver of immunity from suit by imposing the limitations
of liability articulated in the recreational use statute. TEX.
CIV. PRAC. & REM.CODE 101.058 (To the extent that
Chapter 75 limits the liability of a governmental unit under
circumstances in which the governmental unit would be liable
under [the Tort Claims Act], Chapter 75 controls.).
The recreational use statute provides:
If an owner, lessee, or occupant of real property other than
agricultural land gives permission to another to enter the
premises for recreation, the owner, lessee, or occupant, by
giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a
greater degree of care than is owed to a trespasser on the
premises; or
(3) assume responsibility or incur liability for any injury to

any individual or property caused by any act of the person
to whom permission is granted.
Id. 75.002(c)(1)-(3). Recreational use includes camping
and picnicking, the activities in which the Mirandas were
engaged at the state park when Maria was injured. Id.
75.001(3). As applied to a governmental unit, the recreational
use statute limits liability even if the person pays to enter the
premises. Id. 75.003(c) (excepting governmental units from
the chapter's exclusion of landowners who charge a fee for
recreational use of land).
[6]
[7]
The recreational use statute limits the Department's
duty for premises defects to that which is owed a trespasser. 5

Id. The limited duty owed a trespasser is not to injure that
person willfully, wantonly, or through gross negligence. Tex.
Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997).
Therefore, a governmental unit waives sovereign immunity
under the recreational use statute and the Tort Claims Act only
if it is grossly negligent. TEX. CIV. PRAC. & REM.CODE
75.002(c)-(d); City of Bellmead v. Torres, 89 S.W.3d 611,
613 (Tex.2002); Timmons, 947 S.W.2d at 193. [G]ross
negligence involves two components: (1) viewed objectively
from the actor's standpoint, the act or omission complained
of must involve an extreme degree of risk, considering the
probability and magnitude of the potential harm to others; and
(2) the actor must have actual, subjective awareness of the risk
involved, but nevertheless proceed in conscious indifference
to the rights, safety, or welfare of others. LouisianaPacific
Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex.1999) (citing
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994)).
B. Standard of Review
[8] [9] Sovereign immunity from suit defeats a trial court's
subject matter jurisdiction *226 and thus is properly asserted
in a plea to the jurisdiction. Jones, 8 S.W.3d at 637; see also
Hosner, 1 Tex. at 769 (recognizing as appropriate procedure
the challenge of a courts subject matter jurisdiction through
a plea to the jurisdiction). The trial court must determine
at its earliest opportunity whether it has the constitutional
or statutory authority to decide the case before allowing the
litigation to proceed. Austin & N.W.R. Co. v. Cluck, 97 Tex.
172, 77 S.W. 403, 405 (1903) ([T]here can be no doubt
that the courts of Texas must look to the Constitution of this
state, the enactments of the Legislature, and the common
Appendix 11
47 Tex. Sup. Ct. J. 386
law for their authority to proceed ....); see also State Bar
of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994) (As a
general proposition, before a court may address the merits of
any case, the court must have jurisdiction over the party or
the property subject to the suit, jurisdiction over the subject
matter, jurisdiction to enter the particular judgment, and
capacity to act as a court.); Gentry v. Bowser, 2 Tex.Civ.App.
388, 21 S.W. 569, 570 (Fort Worth 1893, no writ) (Certainly
the court has the right to hear the necessary evidence to
enable it to decide as to whether or not it has power to
try the case it is sought to have it adjudicate, whether the
allegations disclosing such want of jurisdiction appear in the
petition of the plaintiff, or in the plea to the jurisdiction by
the defendant.).
the cause. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex.1993). We construe the pleadings
liberally in favor of the plaintiffs and look to the pleaders'
intent. Id. If the pleadings do not contain sufficient facts
to affirmatively demonstrate the trial courts jurisdiction
but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the
plaintiffs *227 should be afforded the opportunity to amend.
Brown, 80 S.W.3d at 555. 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.
[16]
[17]
[18] However, if a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider
[10]
[11]
[12] Whether a court has subject matter relevant evidence submitted by the parties when necessary
jurisdiction is a question of law. Tex. Natural Res.
to resolve the jurisdictional issues raised, as the trial court
Conservation Comm'n v. ITDavy, 74 S.W.3d 849, 855
is required to do. See Bland, 34 S.W.3d at 555 (confining
(Tex.2002). Whether a pleader has alleged facts that
the evidentiary review to evidence that is relevant to the
jurisdictional issue). When the consideration of a trial
affirmatively demonstrate a trial court's subject matter
court's subject matter jurisdiction requires the examination of
jurisdiction is a question of law reviewed de novo.
evidence, the trial court exercises its discretion in deciding
Likewise, whether undisputed evidence of jurisdictional facts
whether the jurisdictional determination should be made at
establishes a trial court's jurisdiction is also a question of law.
a preliminary hearing or await a fuller development of the
However, in some cases, disputed evidence of jurisdictional
case, mindful that this determination must be made as soon
facts that also implicate the merits of the case may require
as practicable. Id. at 554. Then, in a case in which the
resolution by the finder of fact. See Gates v. Pitts, 291 S.W.
jurisdictional challenge implicates the merits of the plaintiffs'
948, 949 (Tex.Civ.App.-Amarillo 1927, no writ); Gentry, 21
cause of action and the plea to the jurisdiction includes
S.W. at 570; see also Valentin v. Hosp. Bella Vista, 254
F.3d 358, 363 n. 3 (1st Cir.2001) (observing that in certain
evidence, the trial court reviews the relevant evidence to
situations, the predicate facts can be so inextricably linked to
determine if a fact issue exists. The United States Supreme
the merits of the controversy that the district court may defer
Court and all of the federal circuits have authorized federal
resolution of the jurisdictional issue until the time of trial);
district courts to consider evidence in deciding motions
Cameron v. Children's Hosp. Med. Ctr., 131 F.3d 1167, 1170
to dismiss for lack of subject matter jurisdiction. See
(6th Cir.1997) ([W]hether a district court has subject matter
FED.R.CIV.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, 735
jurisdiction is a question for the court, not a jury, to decide,
& n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209, (1947), overruled
even if the determination requires making factual findings,
by implication on other grounds by Larson v. Domestic &
unless the jurisdictional issue is inextricably bound to the
Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457,
merits of the case.); Williamson v. Tucker, 645 F.2d 404,
93 L.Ed. 1628 (1949) (observing that as a general rule,
413 n. 6, 416 n. 10 (5th Cir.1981) (suggesting that a federal
district courts have authority to inquire into the facts as
district court's role in determining jurisdictional facts may
they exist by affidavits or otherwise as well as the
be more limited in cases in which the jurisdictional attack
pleadings when determining whether the court has subject
implicates the merits of plaintiff's cause of action). In this
matter jurisdiction). 6 If the evidence *228 creates a fact
case, we address a plea to the jurisdiction in which undisputed
question regarding the jurisdictional issue, then the trial court
evidence implicates both the subject matter jurisdiction of the
cannot grant the plea to the jurisdiction, and the fact issue
court and the merits of the case.
will be resolved by the fact finder. However, if the relevant
evidence is undisputed or fails to raise a fact question on the
[13] [14] [15] When a plea to the jurisdiction challenges jurisdictional issue, the trial court rules on the plea to the
the pleadings, we determine if the pleader has alleged facts
jurisdiction as a matter of law.
that affirmatively demonstrate the court's jurisdiction to hear
Appendix 11
47 Tex. Sup. Ct. J. 386
[19]
[20] We acknowledge that this standard generally
mirrors that of a summary judgment under Texas Rule of
Civil Procedure 166a(c). We adhere to the fundamental
precept that a court must not proceed on the merits of a
case until legitimate challenges to its jurisdiction have been
decided. This standard accomplishes this goal and more. It
also protects the interests of the state and the injured claimants
in cases like this one, in which the determination of the
subject matter jurisdiction of the court implicates the merits
of the parties' cause of action. The standard allows the state
in a timely manner to extricate itself from litigation if it
is truly immune. However, by reserving for the fact finder
the resolution of disputed jurisdictional facts that implicate
the merits of the claim or defense, we preserve the parties'
right to present the merits of their case at trial. Similar to
the purpose of a plea to the jurisdiction, which is to defeat a
cause of action for which the state has not waived sovereign
immunity (usually before the state has incurred the full costs
of litigation), the purpose of summary judgments in Texas is
to eliminate patently unmeritorious claims and untenable
defenses. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989)
(quoting City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 n. 5 (Tex.1979)). By requiring the state to
meet the summary judgment standard of proof in cases like
this one, we protect the plaintiffs from having to put on their
case simply to establish jurisdiction. Bland, 34 S.W.3d at
554. Instead, after the state asserts and supports with evidence
that the trial court lacks subject matter jurisdiction, we simply
require the plaintiffs, when the facts underlying the merits and
subject matter jurisdiction are intertwined, to show that there
is a disputed material fact regarding the jurisdictional issue.
See Huckabee v. Time Warner Entm't Co. L.P., 19 S.W.3d
413, 420 (Tex.2000); Phan Son Van v. Pena, 990 S.W.2d 751,
753 (Tex.1999).
judgment, including a twenty- *229 one day notice period

or an adequate time to conduct discovery. TEX.R. CIV. P.
166a(c), 166a(i). However, the scheduling of a hearing of a
plea to the jurisdiction is left to the discretion of the trial
court, which is in the best position to evaluate the appropriate
time frame for hearing a plea in any particular case. This
procedure does not dramatically differ from that outlined
in Texas Rule of Civil Procedure 120a governing special
appearances. Although Rule 120a requires any affidavits to be
used at a hearing on a special appearance to be served at least
seven days before the hearing, it does not specify the length
of a notice period and is therefore presumably subject to the
three-day notice period of Rule 21. TEX.R. CIV. P. 21. Rule
120a allows the trial court to order a continuance and allow
time for discovery if the development of the case requires it.
Nothing prevents a trial court from doing the same with a plea
to the jurisdiction where evidence is necessary.
Many other procedures in Texas practice ranging from a

trial court's rulings on motions to strike intervention to the
timing of a class certification decision to even the alteration
of the summary judgment notice periodsalso depend[ ] ...
upon the wise exercise of discretion by the trial court.
Union Carbide Corp. v. B.D. Moye, 798 S.W.2d 792, 794
(Tex.1990) (Hecht, J., concurring); see, e.g., TEX.R. CIV.
P. 42(c)(1)(A) (directing a trial court to determine whether
a suit may be maintained as a class action at an early
practicable time); TEX.R. CIV. P. 166a(c) (Except on leave
of court, with notice to opposing counsel, the motion and any
supporting affidavits shall be filed and served at least twentyone days before the time specified for hearing.) (emphasis
added); Guaranty Fed. Sav. Bank v. Horseshoe Operating
Co., 793 S.W.2d 652, 657 (Tex.1990) (observing that the
trial court has broad discretion in ruling on a motion to
strike intervention, even though Rule 60 does not provide
[21]
[22] Appellate courts reviewing a challenge to a explicit guidelines for the scheduling of a hearing or the
trial court's subject matter jurisdiction review the trial court's
evaluation of evidence). Thus, the Texas civil procedural
ruling de novo. ITDavy, 74 S.W.3d at 855. When reviewing
scheme entrusts many scheduling and procedural issues to the
a plea to the jurisdiction in which the pleading requirement
sound discretion of the trial court, subject to appellate review.
has been met and evidence has been submitted to support the
Of course, Texas practice and rules also allow the parties to
plea that implicates the merits of the case, we take as true all
request additional time to prepare for certain hearings or to
evidence favorable to the nonmovant. See Sci. Spectrum, Inc.
conduct discovery upon a showing of sufficient cause, and
v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We indulge
the court's ruling on such a motion is reviewed for an abuse
every reasonable inference and resolve any doubts in the
of discretion. See, e.g., TEX.R. CIV. P. 166a(g), 247, 251,
nonmovant's favor. Id.
252. We note, also, that federal practice does not prescribe
a procedure for the consideration of jurisdictional evidence
[23] In his dissent JUSTICE JEFFERSON criticizes this but instead allows the district courts to tailor a method to
standard of review as depriving plaintiffs responding to a
suit the requirements of the cases before them. Land, 330
plea of the procedural protections of a motion for summary
U.S. at 735 n. 4, 67 S.Ct. 1009; Moran, 27 F.3d at 172. In
Appendix 11
47 Tex. Sup. Ct. J. 386
any event, the Mirandas do not complain that they had an

inadequate opportunity to conduct sufficient discovery, nor
did they request a continuance to do so.
C. Waiver of Immunity Based on Premises Defects

1. The Mirandas' Pleadings
[24] The Mirandas contend that their pleadings fall within
the Tort Claims Act's waiver of immunity for both premises
defects and injuries arising out of conditions or use of
property. The Act provides that a state agency is liable for
injury and death caused by a condition or use of tangible
personal or real property if the governmental unit would, were
it a private person, be liable to the claimant according to
Texas law. TEX. CIV. PRAC. & REM.CODE 101.021(2).
The Mirandas' pleadings allege injuries caused by a falling
tree limb, which falls under the definition of real property
i.e., land, and generally whatever is erected or growing
upon or affixed *230 to land. San Antonio Area Found.
v. Lang, 35 S.W.3d 636, 640 (Tex.2000) (quoting Chastain
v. Koonce, 700 S.W.2d 579, 584 (Tex.1985) (Gonzalez, J.,
concurring)). The Mirandas' allegation of an injury caused by
a tree limb falling on Maria Miranda constitutes an allegation
of a condition or use of real property and is an allegation of
a premises defect.
To state a claim under the recreational use statute, the
Mirandas must allege sufficient facts to establish that the
Department was grossly negligent. See TEX. CIV. PRAC.
& REM.CODE 75.002(c)-(d), 101.021, 101.025, 101.058.
The Mirandas contend that both their allegations and the
evidence presented on the plea establish claims of gross
negligence. Looking first to the relevant factual allegations
in the third amended petition, the Mirandas claim that (1)
they specifically asked the Department's employee for a
recommendation of a safe camping location; (2) at the
campsite, Maria was struck by a falling tree branch that
severely injured her; (3) the unpruned, uninspected tree
branches created a dangerous, defective condition on the
premises of which the Department was aware; (4) the
Department knew of the dangers of its falling tree branches
but failed to inspect, prune, alleviate the dangers, or otherwise
make safe the dangerous conditions of its trees; (5) the
Department consciously and deliberately failed to warn the
Mirandas of the extremely dangerous condition; and (6)
the Department's conduct was willful, wanton, or grossly
negligent. A liberal construction of these allegations, as
required, demonstrates that the Mirandas stated a claim

against the Department for gross negligence. This conclusion
should not be read as a suggestion that the Department has
a duty to inspect every tree in each of the many parks that
the Department manages. Instead, in this case, the Mirandas
alleged sufficient facts to survive a plea to the jurisdiction
based solely on the pleadings.
JUSTICE JEFFERSON'S dissent contends that the Mirandas'
third amended petition does not state a claim for gross
negligence because the allegations are conclusory and do
not assert enough specific facts alleging that the Department
had actual subjective awareness of the risk involved and
proceeded, nevertheless, with conscious indifference. He
suggests that to state a claim the Mirandas should have pled
that the Department had actual knowledge that the branch
would fall yet nevertheless instructed Maria to camp beneath
it. 133 S.W.3d at 242. The pleading hurdle he seeks to erect
would be groundbreaking, indeed, extending beyond current
requirements under our rules of civil procedure and case law.
Rules 45 and 47 require that the original pleadings give a
short statement of the cause of action sufficient to give the
opposing party fair notice of the claim involved. TEX.R. CIV.
P. 45, 47; Paramount Pipe & Supply Co., Inc. v. Muhr, 749
S.W.2d 491, 494 (Tex.1988); Castleberry v. Goolsby Bldg.
Corp., 617 S.W.2d 665, 666 (Tex.1981). Rule 45 does not
require that the plaintiff set out in his pleadings the evidence
upon which he relies to establish his asserted cause of action.
Muhr, 749 S.W.2d at 49495. While it is clear that [t]he
party suing the governmental entity must establish the state's
consent, which may be alleged either by reference to a statute
or to express legislative permission, Jones, 8 S.W.3d at 638,
and that [m]ere reference to the Tort Claims Act does not
establish the state's consent to be sued and thus is not enough
to confer jurisdiction on the trial court, Miller, 51 S.W.3d at
587, the Mirandas' pleadings allege sufficient facts to bring
their claims under the recreational use statute and the Tort
Claims Act.
*231 Although facts alleged in a petition should not be
improperly stretched to state a claim for gross negligence,
JUSTICE JEFFERSON'S pleading standard for gross
negligence would be virtually impossible to meet, even when
grossly negligent conduct occurred, absent an admission of
liability. His standard requires specific factual allegations in
an original petition of what the defendant knew and thought
i.e., its state of mind. His pleading hurdle would require
discovery into the very extrinsic facts which he bemoans
consideration of in the plea to the jurisdiction. The Mirandas'
Appendix 11
47 Tex. Sup. Ct. J. 386
third amended petition provided sufficient notice to ascertain

the nature and basic issues of the controversy and the evidence
that probably would be relevant.
JUSTICE JEFFERSON also contends that the Mirandas are
entitled to replead. As a practical matter, the Mirandas have
already repled to try to cure the defects that JUSTICE
JEFFERSON raises. The Mirandas no doubt filed their third
amended petition, in which allegations of gross negligence
were raised for the first time in this lawsuit, in response to the
Department's plea to the jurisdiction. However, because the
Mirandas' third amended petition satisfies the notice pleading
requirements of our procedural rules, the Mirandas do not
need, nor are they entitled to, an opportunity to replead. See
TEX.R. CIV. P. 47.
2. The Department's Evidence

[25] The Department challenged the Mirandas' pleadings
and also submitted evidence to controvert the factual
allegations supporting jurisdiction. We consider the relevant
evidence submitted to decide this jurisdictional challenge.
See Bland, 34 S.W.3d at 555. The Department attached the
deposition testimony of Craig VanBaarle, the assistant park
manager for Garner State Park, to its plea to the jurisdiction.
VanBaarle testified that while the park normally inspects and
maintains its trees, tree limbs are only pruned or trimmed if
they appear to be dead. According to VanBaarle, the tree limb
that fell on Maria was living. He testified that both dead and
living tree limbs have fallen at various locations in the park.
He testified that the park knows that tree limbs can fall and
have fallen on approximately twenty occasions. However,
no one had ever been injured by falling tree limbs. He also
testified that the tree limb that injured Maria Miranda fell
from fifty feet above the campsite and that the park employees
would not have been able to see the limb clearly without
climbing the tree even if the limb had been dead.
In addition, the Department attached the affidavit of Roy
B. Inks, operations and maintenance specialist at Garner
State Park. Inks' responsibilities included supervision of park
maintenance including preservation and maintenance of trees
at campsites. According to his affidavit, Inks inspected the
campsite after the accident. His examination of the tree and
the fallen branch failed to reveal any indication that the branch
was dead, decaying, or in need of pruning. Inks opined that
there was no reason to conclude that the tree presented a
dangerous or hazardous condition. Inks further opined that
the branch that struck Maria broke away from the tree as
a result of an unpredictable and unforseeable phenomenon
known as sudden branch drop syndrome. Inks explained
that [i]t would be rare for anyone to be able to predict which
branches will fall and which ones will not as a result of this
phenomenon. The Mirandas cite the Department's evidence
as proof that the Department knew about sudden branch
drop syndrome and did nothing about it, thus establishing
gross negligence. The Mirandas did not cite any controverting
evidence in their response to the Department's plea.
*232 We first examine this evidence to determine whether
it establishes that the Department was grossly negligent.
We have observed that with regard to the subjective
component of gross negligence, it is the defendant's state
of mind whether the defendant knew about a peril but
nevertheless acted in a way that demonstrated that he did
not care about the consequences that separates ordinary
negligence from gross negligence. LouisianaPacific, 19
S.W.3d at 24647. We search the record for evidence that
the Department's acts or omissions demonstrate that it did
not care about the consequences to the Mirandas of a
known extreme risk of danger. The Mirandas fail to point
to any evidence, and the record contains no evidence, that
shows that sudden branch drop syndrome constitutes an
extreme risk of danger or that the Department had actual,
subjective knowledge of that risk but nevertheless proceeded
in conscious disregard for the safety of others. Nor is there
any evidence that the Department could have taken any
reasonable steps to minimize the dangers of an unforseeable
and unpredictable phenomenon. We conclude that the
evidence in the record establishes that the Department was
not grossly negligent and that the Mirandas have failed
to raise a fact question regarding the Department's alleged
gross negligence. The Mirandas fall short of satisfying the
requirements for the Legislature's limited grant of a waiver of
sovereign immunity from suit under the applicable statutes.
Therefore, the trial court lacked subject matter jurisdiction.
3. Dissent
In his dissent, JUSTICE BRISTER takes the view that all
pleas to jurisdiction based on immunity must take the form
of two standard or established motionseither special
exceptions or motions for summary judgment. 133 S.W.3d
at 23940. This approach might be appropriate, if we were
starting from scratch. Given that we are not writing on a blank
slate, that pleas have been a useful procedural vehicle in Texas
Appendix 11
47 Tex. Sup. Ct. J. 386
for over 150 years, and that use of its counterpart (Federal
Rule of Civil Procedure 12(b)(1)) to challenge subject matter
jurisdiction in the federal judicial system when evidence is
involved has been authorized by every federal circuit court,
the Court declines to abolish by written opinion such pleas to
the jurisdiction.
The plea to the jurisdiction was included in procedural rules
promulgated by this Court in 1877 and has been used as a
procedural vehicle to challenge subject matter jurisdiction in
trial courts for over a century and a half. See TEX.R. CIV. P.
85; TEX. DIST. CT. R. 7, 47 Tex. 597, 617 (1877); Hosner,
1 Tex. at 769. In fact, as early as 1893, Texas courts indicated
that evidentiary challenges to subject matter jurisdiction
raised in pleas to the jurisdiction should be considered by trial
courts. See, e.g., Gates, 291 S.W. at 949; Gentry, 21 S.W. at
570. With such a long lineage, one wonders why a plea to
jurisdiction does not qualify as a standard or established
motion. Perhaps a second mention in the Texas Rules of Civil
Procedure would suffice.
We decide that refining the rules for considering a plea
supported by evidence is a better approach than eliminating
the motion. This approach is consistent with precedent, is not
disruptive to civil practice going back more than a century,
and furthers the legislative purpose of timely adjudicating
subject matter jurisdiction when the immunity and liability
facts are the same.
There is a suggestion in the dissents that confirming in this
opinion the authority of trial courts to consider evidence
in a plea to the jurisdiction is unfair to the *233 parties
in this case. The facts undercut this assertion. At the trial
court, both parties relied on extrinsic evidence in briefing
the plea, and both parties had extrinsic evidence on file with
the court. Furthermore, plaintiffs expressly stated in their
response to the plea that they were relying on Defendants'
responses to discovery requests, and upon the deposition of
Craig VanBaarle [the Department's assistant park manager].
In fact, the Mirandas deposed VanBaarle months before the
Department filed its plea. There is good reason why Plaintiffs
have not argued unfair surprise. Given Texas precedents and
the actions of the parties, there was none.
D. Waiver of Immunity Based on

Condition or Use of Tangible Property
[26] The Mirandas assert that their pleadings also state a

cause of action for injuries resulting from a condition or
use of tangible property. The allegations' in the Mirandas
third amended petition concern only the Department's failure
to act to reduce risks of falling tree limbs and failure to
warn the Mirandas of the risk of falling tree limbs. These
allegations comprise the elements of their premises defect
claim. The Tort Claims Act's scheme of a limited waiver of
immunity from suit does not allow plaintiffs to circumvent the
heightened standards of a premises defect claim contained in
section 101.022 by re-casting the same acts as a claim relating
to the negligent condition or use of tangible property. See
State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974) (rejecting
the argument that the Tort Claims Act creates two entirely
separate grounds of liability for negligent use or condition
of real property and premise defect, but instead interpreting
the premises defect provision to further limit the waiver of
immunity for negligent use or condition of real property).
Other Texas courts have recognized that to allow plaintiffs to
characterize premises defect claims as claims caused by the
negligent condition or use of personal or real property would
render the Legislature's heightened requirements for premises
defect claims meaningless. See, e.g., State v. Estate of Horton,
4 S.W.3d 53, 54 (Tex.App.-Tyler 1999, no pet.) (stating
that once a claim is determined to be a premises defect, the
claimant is limited to the provisions delineated by the section
on premises defects and may not assert a general negligence
theory); accord Laman v. Big Spring State Hosp., 970 S.W.2d
670, 67172 (Tex.App.-Eastland 1998, pet. denied); Univ. of
Texas Pan Am. v. Valdez, 869 S.W.2d 446, 450 (Tex.App.Corpus Christi 1993, writ denied); Hawley v. State Dep't of
Highways and Pub. Transp., 830 S.W.2d 278, 281 (Tex.App.Amarillo 1992, no writ). Accordingly, we conclude that the
Mirandas have not established a cause of action under the Tort
Claims Act for condition or use of tangible property separate
from their premises defect claim.
IV. Conclusion
Trial courts should decide dilatory pleas early at the pleading
stage of litigation if possible. Here, the Legislature's mandate
is not so simple. By statute, waiver of sovereign immunity
for recreational use of the Department's premises can only be
effected by a showing that it acted with gross negligence. Due
to the standard erected (gross negligence), the determination
of whether immunity was waived may require consideration
of extrinsic facts after reasonable opportunity for targeted
discovery. To preclude consideration of extrinsic facts when
Appendix 11
47 Tex. Sup. Ct. J. 386
necessary to decide a plea to the jurisdiction would require a

trial on the merits for many cases that do not need it, waste
the resources of the courts and the parties in the case, and
*234 involve state courts in rulings on the merits in cases
over which they have no jurisdiction.
For the reasons explained, we conclude that the Department
established that it was not grossly negligent and that the
Mirandas failed to raise a fact issue on that point. Thus,
the trial court lacked subject matter jurisdiction over the
action. The judgment of the court of appeals is reversed and
the Mirandas' action dismissed for lack of subject matter
jurisdiction.
Justice JEFFERSON filed a dissenting opinion.

Justice BRISTER filed a dissenting opinion, in which Justice
O'NEILL and Justice SCHNEIDER joined.
Justice JEFFERSON, dissenting.
I dissent on two grounds. First, I do not agree that our
precedent requires the Mirandas to produce evidence on all
essential elements of their cause of action to establish the trial
court's jurisdiction. The Court's holding is inconsistent with
the distinction Bland draws between requiring the plaintiff to
prove preliminary facts as a predicate to the trial court's power
to entertain the merits, and requiring her to present the merits
themselves on pain of dismissal. Bland Indep. School Dist. v.
Blue, 34 S.W.3d 547 (Tex.2000). 1
Second, I cannot agree that the Mirandas' pleading has alleged
sufficient facts to confer jurisdiction on the trial court. The
Mirandas assert that the Department was aware that branches
fall from trees, but consciously chose not to post warnings.
Is that gross negligence? No. Texas law does not impose on
landowners a duty to warn trespassers about all conceivable
dangers inherent in nature. What if you add the allegation
that the Department did not inspect or prune trees in Garner
State Park? The Court today makes clear that the Department
has no duty to inspect trees in state parks. 133 S.W.3d
242. If there is no duty, a complaint about the failure to
inspect or prune cannot possibly constitute a gross negligence
pleading sufficient to invoke the courts jurisdiction. But the
Mirandas used the words gross negligence. Not enough.
The Mirandas pleaded no facts even remotely suggesting the
Department was aware the limb was about to fall, much less
that it would injure Maria.
I
Bland, in Proper Context
In deciding a plea to the jurisdiction, the trial court
must consider evidence when necessary to resolve the
jurisdictional issues raised. Bland, 34 S.W.3d at 555. That
quote must be read in context. We noted that when a
defendant challenges an organization's standing to sue, the
organization must present evidence of its nature and purpose
before it can pursue its claimsa burden that does not
involve a significant inquiry into the substance of the claims.
Id. at 554. Similarly, we *235 observed that a challenge to
personal jurisdiction may touch on the merits of the case,
but is not aimed at whether the defendant may be liable
as alleged. Id. at 555. That themethat a plaintiff is not
required to litigate the merits to establish jurisdictionwas
emphasized throughout our opinion. Id. at 554. We cautioned
that the proper function of a dilatory plea does not authorize
an inquiry so far into the substance of the claims presented
that plaintiffs are required to put on their case simply to
establish jurisdiction. Id.
I interpret Bland to mean that if a plea to the jurisdiction
requires the trial court to wade deeply into the lawsuit's
merits, it is not a valid plea. Yet today the Court immerses
itself in the merits by reaching and deciding the ultimate
issue in the case: ... the evidence in the record establishes
that the Department was not grossly negligent and that the
Mirandas have failed to raise a fact question regarding the
Department's alleged gross negligence. 133 S.W.3d at 221
(emphasis added). This holding misapplies Bland because
it permits a defendant, on painfully short notice and before
evidence has been developed, to force the plaintiff either to
present evidence on the ultimate issue in the lawsuit, or lose
the right to a jury trial on the merits.
The Court asserts that its standard mirrors that of a summary
judgment.... 133 S.W.3d 228. It is a poor reflection. Our
summary judgment rule, unlike the Court's standard, contains
procedural safeguards to ensure that the merits are not
determined before the nonmovant has had an adequate time
for discovery and an opportunity to respond. TEX.R. CIV. P.
166a(c) (Except on leave of court, with notice to opposing
counsel, the motion and any supporting affidavits shall be
filed and served at least twenty-one days before the time
specified for hearing. Except on leave of court, the adverse
party, not later than seven days prior to the day of hearing
Appendix 11
10
47 Tex. Sup. Ct. J. 386
may file and serve opposing affidavits or other written

response.); 166a(i) (After adequate time for discovery, a
party without presenting summary judgment evidence may
move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or
defense....). As a uniform rule of procedure, the summary
judgment rule leaves little to the imagination. A party whose
claim is subject to adjudication on the merits is entitled to
advance notice that it must present evidence and has an
adequate opportunity to respond. 2 The procedure the Court
adopts today, in contrast, will vary from county to county and
from judge to judge.
The Court cites a number of federal decisions holding that
when jurisdictional facts are intertwined with the merits, the
trial court, in considering evidence, should either employ
the standard applicable to a summary judgment or leave
the jurisdictional *236 determination to trial. 133 S.W.3d
228; see also 2 JAMES WM. MOORE ET AL., MOORE'S
FEDERAL PRACTICE 12.30[3], at 1237 to 1238 (3d
ed.2003). I do not disagree with that proposition, but it
does not answer a fundamental question. This Court must
decide what procedure governs in Texas when a plea to the
jurisdiction is treated like a motion for summary judgment.
As JUSTICE BRISTER observes, no procedural rule
currently requires a trial court to advise the plaintiff that
evidence may or must be presented in opposition to a plea
to the jurisdiction, and no rule requires an adequate time for
discovery before the court dismisses a case on the merits. 133
S.W.3d at 237. By default, then, trial courts will turn to Rule
21. TEX.R. CIV. P. 21. Presumably, if a trial court's ruling
comports with Rule 21's minimum procedural requirements, a
dismissal on the merits will survive any challenge based on an
abuse of discretion standard. We should ask ourselves, then,
whether the Rule's minimum requirements are adequate when
the stakes are no less than a party's ability to present its case
on the merits.
Under Rule 21, a plea to the jurisdiction may be served
three days before the time specified for the hearing unless
otherwise provided by these rules or shortened by the court.
Id. The rule does not mention an adverse party's right to
present opposing evidence, which may explain why the
Mirandas did not controvert the Department's plea with their
own evidence. Compiling evidence of simple negligence on
three days' noticeevidence that typically requires months of
discoverywould be daunting in itself; but where, as here,
a plaintiff must prove gross negligence, her ability to contest
the Department's jurisdictional plea could be essentially nonexistent.

The Mirandas had no reason to suspect that a summary
judgment standard applied, requiring them to controvert the
Department's evidence, because the Department's plea to the
jurisdiction was subject to Bland. 34 S.W.3d at 55455 (trial
court not authorized to inquire so far into the substance of
the claims presented that plaintiffs are required to put on
their case simply to establish jurisdiction). At a minimum, I
would hold that if a summary judgment standard applies, the
trial court must so advise the parties and employ Rule 166a
procedures.
II
Pleading Requirements Under Recreational Use Statute
Rather than dismiss the case on the merits under a summary
judgment standard, I would examine the pleadings to
determine whether the Mirandas alleged facts sufficient to
invoke the trial court's jurisdiction. See Tex. Ass'n Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) (plaintiff
has burden to allege facts affirmatively demonstrating that the
trial court has subject matter jurisdiction). In my view, the
Mirandas' pleading falls short. Just as the Department owes
no duty to warn trespassers that rattlesnakes may strike, it
owes no duty to advise statutory trespassers that tree limbs
fall in state parks. The Mirandas did not allege that the
Department had so much as an inkling that the branch in
question would fall. See TEX. CIV. PRAC. & REM CODE
41.001(7); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,
2122 (Tex.1994) (explaining that gross negligence requires
at a minimum that the defendant subjectively have actual
awareness of the extreme risk created by his or her conduct).
Rather, she alleges that the Department is generally aware
that tree limbs fall, just as it must know of countless other
natural *237 perils in state parks. Because the Department
owes no duty to warn trespassers that forces of nature may
cause random harm, I would hold, contrary to the Courts
conclusion, that the Mirandas pleading does not invoke the
trial courts jurisdiction.
The Mirandas did not allege that the Department was
subjectively aware of any specific risk of injury. See id.
Instead, they alleged:
Appendix 11
11
47 Tex. Sup. Ct. J. 386
Defendant knew of the dangers of its falling tree branches,

failed to inspect, failed to prune, failed to alleviate or
remove the danger, and consciously and deliberately failed
to warn Plaintiffs of the extremely dangerous condition.
Plaintiffs paid a campsite rental fee and specifically asked
defendant to assign them a safe campsite. Defendant knew
that its property contained hidden, dangerous defect (sic)
in that its tree branches which have not been inspected or
pruned regularly fall. Defendant did not warn Plaintiffs of
the hidden danger.
***
Plaintiffs would show the court that the occurrence made
the basis of this suit and the resulting damages set out
below were a direct and proximate result of Defendants
negligence and its agents, servants, and officers, both
of commission or omission, or both separately and
collectively, in failing to properly maintain and inspect
the campsite where Plaintiffs were injured, in failing to
properly maintain the campsite in a safe condition and/or in
failing to exercise ordinary care to protect Plaintiffs from
the danger.
The Mirandas' gross negligence allegations stated:
Plaintiffs would show the court that
the occurrences made the basis of
this suit and the resulting injuries
and damages set out below were
a direct and proximate result of
Defendants negligence in failing to
make safe the dangerous condition
of its campsite trees. Defendant's
conduct was willful, wanton, or
grossly negligent. Defendant failed
to warn or make reasonably safe
the dangerous condition of which it
was aware and which Plaintiffs were
unaware.
We can accept as true the Mirandas' allegation that the
Department knew its tree branches which have not been
inspected or pruned regularly fall and did not warn them
about that contingency. That pleading, however, is of neutral
value in a suit against the Department, which would owe
no duty to warn unless it had actual knowledge that the
branch would fall yet nevertheless instructed Maria to camp
beneath it. See id.; see also Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 785 (Tex.2001) (reiterating that

gross negligence requires that the actor must have actual,
subjective awareness of the risk involved, but nevertheless
proceed in conscious indifference to the rights, safety, or
welfare of others.). Indeed, nowhere in their pleadings do
the Mirandas assert that the Department was aware of any
risk associated with either the tree or the campsite below.
Instead, they simply recast allegations of simple negligence
into a claim for gross negligence.
We are bound, however, to analyze their claims in light
of the policies underlying the recreational use statute. The
statute exists to encourage landowners to allow the public
to enjoy outdoor recreation on their property by limiting
their liability for personal injury. City of Bellmead v.
Torres, 89 S.W.3d 611, 617 (Tex.2002) (Hankinson, J.
dissenting). To accomplish that objective, the Legislature
has placed stringent parameters around the duty landowners
owe trespassers. See TEX. CIV. PRAC. & REM CODE
75.002. The duty implicit in the Mirandas pleading, however,
would require *238 the Department to warn all visitors of
all perils commonly confronted by human interaction with
nature. The scope of that proposed dutyobligating the
Department to post warnings about all naturally occurring
dangerswould create such an insurmountable practical
and economic burden as to frustrate the legislatures intent
to encourage landowners to make property available for
recreational use.
Without allegations that the Department was aware that the
limb would fall and nevertheless instructed Maria to camp
below it, the Mirandas have not pleaded facts sufficient to
proceed on their claim under the recreational use statute. I do
not mean to suggest that merely because the injury is alleged
to have resulted from a natural condition, the trial court is
thereby deprived of jurisdiction. For example, the trial courts
jurisdiction would be properly invoked by a pleading that the
Department told the plaintiff it was safe to dive into waters
the Department knew were so shallow that the dive posed a
likelihood of serious injury, and that the plaintiff was severely
injured diving in reliance on that assurance. Here, by contrast,
the Mirandas did not plead that the Department directed Maria
to a campsite knowing that an overhanging tree branch would
likely fall on her and cause serious injury.
I understand fully the Courts holding that the Mirandas gave
fair notice that they were pursuing a gross negligence claim.
Fair-notice pleadings, however, must be viewed in this case
through the prism of sovereign immunity, which deprives a
Appendix 11
12
47 Tex. Sup. Ct. J. 386
court of jurisdiction unless the State has expressly waived

immunity. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638
(Tex.1999). The plaintiffs' pleadings against the State must
affirmatively establish jurisdiction to overcome the contrary
presumption. Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d
583, 587 (Tex.2001)(quoting Tex. Assn. Bus., 852 S.W.2d
at 446). The plaintiff must plead facts that, if true, would
establish that the claims come within an express waiver of
sovereign immunity before the trial court has jurisdiction to
proceed. Just as mere reference to the Texas Tort Claims
Act is insufficient to confer jurisdiction, Miller, 51 S.W.3d
at 587, the trial court's jurisdiction is not satisfied by mere
notice that the plaintiff is pursuing a gross negligence claim.
The Mirandas have failed to affirmatively establish the court's
jurisdiction because, even if all of the facts alleged in their
pleading were true, those facts would not amount to gross
negligence and therefore would not establish a waiver of
sovereign immunity under the recreational use statute.
The Legislature has provided that state park visitors are owed
the same duty of care as trespassers; 1 thus, the plaintiffs in
this case had to prove the Parks and Wildlife Department
caused deliberate, wilful, or malicious injury. 2 All members
of the Court agree that either their petition or their summary
judgment evidence fails to do so, though we disagree which.
The Mirandas alleged Maria suffered severe injuries caused
by the Department's gross negligence; specifically, they
alleged the Department knew tree limbs could fall, and
failed to warn them of that fact or assign them a campsite
where none would. I have grave doubts whether such
facts could possibly constitute gross negligencenatural
conditions usually cannot be unreasonably dangerous (much
less wanton), 3 and trespassers do not have to be warned
of what everyone should know. 4 Nor does the Parks
Department appear to have a duty to provide campsites safely
away from trees; 5 indeed, one has to ask whether anyone
When a plaintiff fails to plead facts establishing jurisdiction,

the issue is ordinarily one of pleading sufficiency and the
plaintiff should be afforded the opportunity to amend. County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). A
court may grant a plea to the jurisdiction without affording an
opportunity to amend only when the pleadings affirmatively
negate the existence of jurisdiction, a circumstance not
presented here. Id. In this case, however, the trial court
overruled the Departments plea to the jurisdiction, concluding
implicitly that the Mirandas pleadings were sufficient to
confer jurisdiction, and the court of appeals affirmed.
Consequently, the Mirandas have never been placed on notice
that they must cure the jurisdictional defect. It may well be
that the facts will not lend themselves to a pleading that would
confer jurisdiction, but we are not equipped to make that
determination at this stage of the proceedings.
would want to use such parks if it did. 6

Faced with what appears to be an insupportable allegation
like the gross-negligence pleading here, litigants normally
have two options: (1) demand more specific facts by special
exception, or (2) demand more specific facts by motion
for summary judgment. Instead, the Department filed three
motions, including a plea to the jurisdictionthe white
elephant 7 of current Texas motion practice. By use of this
plea, the Department was able to force the trial judge (and
ultimately this Court) to make an ad hoc decision whether our
jurisdiction should be determined by reference to pleadings
or evidence. Because it should be litigants rather than judges
making that choice, I respectfully dissent.
III
Pleas to the jurisdiction are nothing new. In his Commentaries

on the Laws of England, Blackstone lists them as a category
of dilatory pleas that (along with pleas of disability and
abatement) deny the *240 propriety of the remedy rather
Conclusion
than the injury. 8 One hundred years ago, this Court

addressed a variety of matters as pleas to the jurisdiction,
We need not and should not inquire into the ultimate merits
of this case. I would *239 remand the cause to the trial court
to give the Mirandas an opportunity to amend their petition to
plead facts establishing jurisdiction.
Justice BRISTER, joined by Justice O'NEILL and Justice

SCHNEIDER, dissenting.
including objections based on personal jurisdiction, 9 subjectmatter jurisdiction, 10 dominant jurisdiction, 11 venue, 12
capacity, 13 and conflict of laws. 14
Since then, there has been a steady shift away from the
common-law forms of pleading to the more specific motion
practice set out in the rules of civil procedure. For example,
a defendant objecting to venue today must file a motion
Appendix 11
13
47 Tex. Sup. Ct. J. 386
to transfer that complies with the form requirements of

15
Rule 86 and the deadlines of Rule 87.

Similarly, a
nonresident objecting to personal jurisdiction must file a
special appearance that meets the requirements of Rule
120a. 16 In substance, these motions could still be categorized
as pleas to the jurisdiction; but in form, they must comply
with the current rules of civil procedure.
Case law as well as rule amendments have contributed to the
trend away from the common-law plea to the jurisdiction. For
example, we have held that a complaint based on dominant
jurisdiction in another court must be raised by plea in
abatement in the second court, or it is waived. 17 Again,
though this complaint could be characterized as a plea to
the jurisdiction, a more specific motion and procedure has
rendered the common-law term obsolete.
But pleas to the jurisdiction have enjoyed a recent resurgence
in the field of governmental immunity. For many years,
governmental units were not very particular about the vehicle
for asserting immunity, raising it sometimes by
general demurrer; 18
special demurrer; 19
immediately after the effective date, the entity filed the same
objection as a plea to jurisdictionand prevailed. 28
For several reasons, we should put a stop to this resurgence
of common-law pleadings in immunity cases. First, it is
fraught with uncertainty. Despite hundreds of haphazardlynumbered rules, only once do the Texas Rules of Civil
Procedure mention pleas to the jurisdiction, and then only in
a rule regarding permissible parts of an answer rather than
permissible motions. *242 29 There is no ruleno case and
no codethat specifies the form, deadlines, or evidentiary
requirements for pleas to the jurisdiction generally.
In Bland Independent School District v. Blue, 30 we
attempted to bring some order to this resurgence by setting
guidelines for handling such pleas. But due to the broad
range of issues a plea to the jurisdiction might address,
that was not easy to do. As we pointed out in several
examples, consideration of some pleas should not go beyond
the pleadings, but consideration of others must. 31 When
necessary, trial courts must consider evidence relating to the
jurisdictional facts, but should not consider evidence relating
to the merits, 32 even though the two are sometimes the same.
Nor could we be specific about when pleas should be decided,
leaving it to the trial court's discretion whether to address the
issue at a preliminary hearing or after fuller development of
*241 special exception; 20
the merits. 33
plea to the jurisdiction; 21
The examples given in Bland certainly provided more

procedural guidance than existed before. But without
considering all possible pleas to the jurisdiction, we could not
prescribe more definitive rules; until all those disputes come
before us, we should probably not try. In the meantime, it will
often be unclear what the trial court should consider, or when
it should do so, until the plea is decided (or perhaps even later
on appeal). To some observers, this may appear to be drawing
plea in abatement; 22 or
summary judgment. 23
In 1997, the Legislature amended the Civil Practices and
Remedies Code to allow interlocutory appeals from an
interlocutory order ... [that] grants or denies a plea to the
jurisdiction by a governmental unit. 24 We have held this
section must be strictly construed, as it is an exception to the
up the rules after the game has been played. 34
general rule that interlocutory orders are not appealable. 25
From almost any vantage point, the resurgence of pleas to

the jurisdiction creates problems in immunity cases. For
governmental entities, it results in unnecessary repetition. In
this case, the Parks and Wildlife Department could not be sure
whether the trial court would consider evidence necessary,
so it filed three motionsa no-evidence motion for summary
judgment, a traditional motion for summary judgment, and
a plea to the jurisdiction. But as counsel for the Department
admitted at the hearing, all three relate to the same set of
issues.
As a result, almost overnight a plea to the jurisdiction

became the motion of choice for asserting immunity; 26
indeed, some appellate courts have refused to consider
any other. 27 This development exalts form over substance.
For example, before the Legislature's amendment, one
governmental entity unsuccessfully asserted immunity by
means of a summary judgment and special exceptions;
Appendix 11
14
47 Tex. Sup. Ct. J. 386
Such repetition is unnecessary for interlocutory review.

Nothing in the Civil Practice and Remedies Code suggests the
Legislature intended to specify a form motions had to take for
that purpose, rather than their substance. Indeed, the opposite
is suggested by the Legislature's selection of a common-law
term applicable to a broad category of motions, rather than
a term pointing to any particular motion in the current rules
of civil procedure. It has long been our practice to consider
the substance of motions rather than their form; 35 nothing in
the legislative history *243 suggests the interlocutory appeal
statute was intended to be an exception to that rule.
For plaintiffs, the problems created by the resurgence of pleas
to the jurisdiction are even more acute. Defendants uncertain
about how to present an immunity defense can simply try a
little of everything; plaintiffs, by contrast, may lose their case
if they guess wrong. In this case, for example, the Mirandas
did not attach any evidence to their responses to the various
motions. The lower courts agreed they did not need to, but
if we hold otherwise, then the Mirandas will learn three
years too late that they should have presented evidence at the
jurisdictional hearing.
From a trial judge's vantage point, pleas to the jurisdiction
create uncertainty, not just about the rules to be applied
but about the role of the judge. This case is one of many
in which immunity from suit under the Texas Tort Claims
Act is coextensive with immunity from liability. 36 As a
result, deciding the jurisdictional question bears a strong
resemblance to deciding the merits.
In these circumstances, it is difficult for Texas judges to detect
the line between jurisdictional questions they must decide
before going further and liability questions they cannot decide
without usurping the function of the jury. Here, the Mirandas
convinced the lower courts that whether their pleadings were
supported by any evidence was a question solely for the jury.
But that is not true if they raised no material facts that could
procedural *244 motions would eliminate many questions

about deadlines, forms, and evidence. It would make
government entities rather than trial judges decide whether
the jurisdictional challenge is directed to the plaintiff's
pleadings or the underlying facts. If a governmental unit
chooses wrong, 41 it may always try again. But the plaintiff is
not required to guess what rules or procedures the trial judge
might apply.
Returning to pre-resurgence practice would not change the
incidence of governmental immunity. As we recently held,
if a plea to the jurisdiction is directed only to the plaintiff's
pleadings, we construe them in the plaintiff's favor and
allow an opportunity to amend unless they affirmatively
negate jurisdiction. 42 This is, of course, identical to the rules
governing special exceptions. 43 And when governmental
entities wish to rely on evidence, any questions of fact that
affect jurisdictional issues must be settled by the jury, 44 the
same standard that applies to summary judgments.
Nor can it be argued that courts exceed their jurisdiction by
requiring immunity pleas to be brought in standard motions
according to settled rules of procedure. As we stated shortly
after the rules of civil procedure were enacted:
Since [the trial court] had the power
to sustain the demurrers and grant
the motions, it had the power to
overrule them. The jurisdiction of a
court must be determined, not upon the
court's action in deciding the questions
presented in a case, but upon the
character of the case itself. Jurisdiction
is the power to decide, and not merely
the power to decide correctly. 45
for summary judgment. 39 In many cases (including this
Of course, returning to established procedural motions will

not remove all difficulties with issues of governmental
immunity. Judges of goodwill and intellect will still disagree
about whether a particular pleading is sufficiently specific,
as JUSTICES JEFFERSON and WAINWRIGHT do here.
Governmental units may incur unnecessary discovery costs
and delays unless judges agree to hear summary judgment
motions on jurisdictional matters as early in the case as they
might hear a plea to the jurisdiction. And appellate courts
must still distinguish between immunity from suit (as to
which an interlocutory appeal will lie) and immunity from
one), they still do so today. 40 Relying on standard
liability (as to which it will not). 46 But simplification of our
establish a waiver of immunity. 37

By contrast, returning to standard motions as the vehicles
for asserting governmental immunity would clarify what
the jurisdictional hearing will be like and simplify many
procedural questions. For decades, governmental units have
asserted immunity by special exceptions 38 or motions
Appendix 11
15
47 Tex. Sup. Ct. J. 386
procedures should not be rejected because we cannot simplify

everything.
If the Texas Legislature mandated interlocutory review of
pleas in bar asserting limitations (a development devoutly
to be wished against), few would suggest such review was
available only for motions entitled Plea in Bar instead of the
summary judgment or special exception forms that have long
been used to raise such issues. 47 We should stop making the
assumption *245 that the Legislature intended something
different for pleas of governmental immunity.
Accordingly, I would reverse and remand for (1) the Parks

and Wildlife Department to specify whether its plea to
the jurisdiction is a challenge to the pleadings (by special
exception) or the evidence (by summary judgment), (2)
the Mirandas to respond in compliance with the rules of
civil procedure, and (3) the lower courts to address the
governmental immunity issue in accordance with the usual
rules governing disposition and review of those motions.
Parallel Citations
47 Tex. Sup. Ct. J. 386
Footnotes
1
2
3
5
6
The Mirandas originally named the Texas Department of Parks and Wildlife as defendant but corrected the name to the
Texas Parks and Wildlife Department in their third amended petition. Because the parties and lower courts retained the
original style of the case, we retain that style but in our opinion refer to the Department by its correct name.
The Department also moved for summary judgment under Texas Rule of Civil Procedure 166a(b)-(c)and 166a(I). The
trial court denied both motions, but the Department does not appeal the trial court's denial of either motion.
The Legislature amended section 22.001 of the Government Code, effective September 1, 2003. Act of June 11, 2003,
78th Leg., R.S., Ch. 204 (codified as section 22.001(e) of the Texas Government Code). The amendment, which applies
to actions filed on or after September 1, 2003 and does not govern our jurisdiction in this case, provides that one court
holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants.
The plaintiff's allegations in the petition of the amount in controversy control for jurisdictional purposes unless the
party challenging jurisdiction pleads and proves that the plaintiff's allegations of the amount in controversy were made
fraudulently for the purpose of obtaining jurisdiction. See Bland, 34 S.W.3d at 554; Cont'l Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444, 449 (Tex.1996); Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263, 263 (1886). We disapprove of courts of
appeals' holdings that require a party to allege that pleadings, other than the jurisdictional amount, are fraudulent in order
for the trial court to consider evidence, when otherwise necessary, of whether it has jurisdiction over a case. See, e.g.,
Sullivan v. Wilmer Hutchins Indep. Sch. Dist., 47 S.W.3d 529, 531 (Tex.App.-Dallas 2000), rev'd on other grounds, 51
S.W.3d 293 (Tex.2001); Denton County v. Howard, 22 S.W.3d 113, 11718 (Tex.App.-Fort Worth 2000, no pet.); Tex.
Dep't of Mental Health & Mental Retardation v. Pearce, 16 S.W.3d 456, 460 (Tex.App.-Waco 2000, pet. dism'd w.o.j.);
Tex. State Employees Union/CWA Local 6184 v. Tex. Workforce Comm'n, 16 S.W.3d 61, 65, 66 (Tex.App.-Austin 2000,
no pet.); DalMac Constr. Co. v. Tex. A & M Univ., 35 S.W.3d 654, 655 n. 1 (Tex.App.-Austin 1999), rev'd on other grounds,
sub nom. Gen. Servs. Comm'n v. LittleTex Insulation Co., Inc., 39 S.W.3d 591 (Tex.2001); Univ. of Houston v. Elthon,
9 S.W.3d 351, 356 (Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.); Curbo v. State, Office of the Governor, 998
S.W.2d 337, 34142 (Tex.App.-Austin 1999, no pet.); City of Saginaw v. Carter, 996 S.W.2d 1, 3 (Tex.App.-Fort Worth
1999, pet. dism-d w.o.j.); Bland Indep. Sch. Dist. v. Blue, 989 S.W.2d 441, 447 (Tex.App.-Dallas 1999), rev'd, 34 S.W.3d
547 (Tex.2000).
The recreational use statute does not limit the liability of an owner, lessee, or occupant who has been grossly negligent
or has acted with malicious intent or in bad faith. TEX. CIV. PRAC. & REM.CODE 75.002(d).
See, e.g., Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 n. 4 (8th Cir.2003) (acknowledging district court's authority
to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1)); Johnson
v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir.2003) (observing that when considering a motion for dismissal for lack of
subject matter jurisdiction, [t]he district court may properly ... view whatever evidence has been submitted on the issue
(quoting Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999))); Sizova v. Nat'l Inst. of Standards & Tech.,
282 F.3d 1320, 1324 (10th Cir.2002) (noting district court's wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1) (quoting Holt v. United States,
46 F.3d 1000, 1003 (10th Cir.1995))); Valentin, 254 F.3d at 363 (district court has broad authority to order discovery,
consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction); Ass'n of Am. Med.
Appendix 11
16
47 Tex. Sup. Ct. J. 386
1
2
3
4
5
6
7
8
9
Colls. v. United States, 217 F.3d 770, 778 (9th Cir.2000) ( district court obviously does not abuse its discretion by
looking to ... extra-pleading material in deciding a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction
(quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989))); Makarova v. United States, 201 F.3d 110, 113 (2d
Cir.2000) (allowing district court to refer to evidence outside the pleadings to resolve a Rule 12(b)(1) motion); Williams
v. United States, 50 F.3d 299, 304 (4th Cir.1995) (In ruling on a Rule 12(b)(1) motion, the court may consider exhibits
outside the pleadings.); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.1994) (acknowledging a trial court's
authority to consider evidence presented beyond the pleadings ... which may include considering affidavits, allowing
further discovery, hearing oral testimony, conducting an evidentiary hearing); Herbert v. Nat'l Acad. of Sci., 974 F.2d
192, 197 (D.C.Cir.1992) ( [W]here necessary, the court may consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.);
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (noting that substantial authority acknowledges the trial
court's freedom to consider disputed evidence when deciding a Rule 12(b)(1) motion) (citations omitted); Gould, Inc. v.
Pechiney Ugine Kuhlmann, 853 F.2d 445, 451 (6th Cir.1988) ([T]he district court may consider affidavits, allow discovery,
hear oral testimony, order an evidentiary hearing, or even postpone its determination if the question of jurisdiction is
intertwined with the merits.); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977) (acknowledging
that substantial authority allows trial courts to weigh the evidence of disputed facts when considering a Rule 12(b)(1)
motion); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1364, at 468469 (2d
ed.1990).
I agree that the court of appeals' holding conflicts with Bland to the extent it holds that the trial court was prohibited from
inquiring into the merits because ... the Department did not specifically allege that the Mirandas allegations were pled
merely as a sham for the purpose of wrongfully obtaining jurisdiction. 55 S.W.3d 648, 652. Bland does not require that
form of defensive pleading as the sole gateway through which the trial court may consider evidence. If that were so, we
could not have held that there are limited circumstances in which, even in the absence of a defendant's pleading that
the plaintiff's pleadings were a sham, the trial court is required to consider evidence. I depart from the Courts holding,
however, that this is such a case.
The prevailing view appears to be that the timeline is strictly enforced. See Luna v. Estate of Rodriguez, 906 S.W.2d 576,
582 (Tex.App.-Austin 1995, no writ) (Because summary judgment is a harsh remedy, we strictly construe the twentyone day time limit.). Accord Burns Motors, Inc. v. Gulf Ins. Co., 975 S.W.2d 810, 812 (Tex.App.-Corpus Christi 1998)
rev'd on other grounds, 22 S.W.3d 417 (Tex.2000); Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 11 (Tex.App.Fort Worth 1997) rev'd on other grounds, 989 S.W.2d 357 (Tex.1998); Bell v. Showa Denko K.K., 899 S.W.2d 749,
759 (Tex.App.-Amarillo 1995, writ denied); Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 27 (Tex.App.Houston [14th Dist.] 1994, no writ); Wavell v. CallerTimes Pub. Co., 809 S.W.2d 633, 637 (Tex.App.-Corpus Christi
1991, writ denied); Williams v. City of Angleton, 724 S.W.2d 414, 417 (Tex.App.-Houston [1st Dist.] 1987, writ refd n.r.e.)
disapproved of on other grounds, 876 S.W.2d 314 (Tex.1994).
TEX. CIV. PRAC. & REM.CODE 75.002(c)(2), 75.003(g).
Id. 75.002(a)(2), 75.003, 101.022, 101.058.
See Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex.1996) (holding rock in dirt arena did
not create unreasonably dangerous condition).
Cf. County of Cameron v. Brown, 80 S.W.3d 549, 558 (Tex.2002) (holding darkness caused by failed streetlights was
not open and obvious hazard precluding recovery by licensee because it could not be seen from entrance to causeway).
See TEX. CIV. PRAC. & REM.CODE 75.002(c)(1) (providing landowners who grant permission for recreational use do
not assure that the premises are safe for that purpose).
See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002) (holding question of legal duty is question of law
requiring balance of factors such as risk, utility, consequences of the duty, and other relevant individual and social
interests).
The OXFORD ENGLISH DICTIONARY (1989) defines white elephant as:
a. A rare albino variety of elephant which is highly venerated in some Asian countries. b. fig. A burdensome or costly
possession (from the story that the kings of Siam were accustomed to make a present of one of these animals to
courtiers who had rendered themselves obnoxious, in order to ruin the recipient by the cost of its maintenance). Also,
an object, scheme, etc., considered to be without use or value.
3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 30103 (1768).
See, e.g., Rice v. Peteet, 66 Tex. 568, 1 S.W. 657, 657 (1886).
Appendix 11
17
47 Tex. Sup. Ct. J. 386
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
See, e.g., McIlhenny Co. v. Todd, 71 Tex. 400, 9 S.W. 445, 446 (1888) (objecting that amount at issue fell below court's
jurisdictional limits); Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562, 562 (1887) (objecting that forcible entry and detainer
action was not filed in justice court).
See, e.g., Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926), disapproved on other grounds, Walker v. Packer,
827 S.W.2d 833, 842 (Tex.1992); Grathaus v. Witte, 72 Tex. 124, 11 S.W. 1032, 1032 (1888).
See, e.g., Pecos & N.T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S.W. 801, 801 (1914); Baines v. Jemison, 86 Tex. 118,
23 S.W. 639, 640 (1893); Watson v. Baker, 67 Tex. 48, 2 S.W. 375, 37576 (1886).
See, e.g., Brown v. Gay, 76 Tex. 444, 13 S.W. 472, 47273 (1890).
See, e.g., Tex. & P. Ry. Co. v. Richards, 68 Tex. 375, 4 S.W. 627, 629 (1887).
TEX.R. CIV. PROC. 86 (requiring unverified motion that is filed first and states counties of improper, proper, or mandatory
venue); TEX.R. CIV. PROC. 87 (requiring 45days' notice of hearing, 30days' notice of respondents affidavits, and 7
days' notice of movants affidavits).
TEX.R. CIV. PROC. 120a (requiring sworn motion that is filed and heard before any other matter, with affidavits served
seven days before the hearing).
Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex.1991); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex.1988).
See, e.g., State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 735 (1941); Herring v. Houston Nat'l Exch. Bank, 113 Tex. 264,
253 S.W. 813, 814 (1923); Stephens v. Tex. & P. Ry. Co., 100 Tex. 177, 97 S.W. 309, 310 (1906); Thomson v. Baker,
90 Tex. 163, 38 S.W. 21, 22 (1896).
See, e.g., Thomson, 38 S.W. at 22.
See, e.g., Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Dir. of Dep't of Agric. & Env't v. Printing Indus. Ass'n of Tex.,
600 S.W.2d 264, 265 (Tex.1980); Stephens, 97 S.W. at 310.
See, e.g., Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 403 (Tex.1997), superseded by statute on other grounds as stated
in Gen. Servs. Comm'n v. LittleTex Insulation Co., Inc., 39 S.W.3d 591, 593 (Tex.2001); Lowe v. Tex. Tech Univ., 540
S.W.2d 297, 298 (Tex.1976); State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 580 (1961); Griffin v. Hawn, 161 Tex. 422,
341 S.W.2d 151, 152 (1960); Short v. W.T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953, 955 (1938).
See, e.g., Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980); Lowe, 540 S.W.2d at 298; Griffin v. Hawn, 161 Tex. 422,
341 S.W.2d 151, 152 (1960); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 838 (1958); Cobb v. Harrington,
144 Tex. 360, 190 S.W.2d 709, 710 (1945); Short v. W.T. Carter & Bro., 133 Tex. 202, 126 S.W.2d 953, 955 (1938).
See, e.g., Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528, 528 (Tex.1975) (per curiam); Tex. Dept. of Corr. v. Herring,
513 S.W.2d 6, 7 (Tex.1974).
TEX. CIV. PRAC. & REM.CODE 51.014(a)(8).
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001).
See, e.g., Texas Natural Res. Conservation Comm'n v. ITDavy, 74 S.W.3d 849, 852 (Tex.2002); LittleTex Insulation
Co., Inc., 39 S.W.3d at 594; McClain v. Univ. of Tex. Health Ctr. at Tyler, 119 S.W.3d 4, 5 (Tex.App.-Tyler 2000, pet.
denied); Dallas County Cmty. Coll. Dist. v. Bolton, 990 S.W.2d 465, 466 (Tex.App.-Dallas 1999, no pet.); Alamo Cmty.
Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 746 (Tex.App.-San Antonio 1998, pet. denied); Tex. Parks & Wildlife Dept.
v. Garrett Place, Inc., 972 S.W.2d 140, 142 (Tex.App.-Dallas 1998, no pet.); Tex. Parks & Wildlife Dep't v. Callaway, 971
S.W.2d 145, 147 (Tex.App.-Austin 1998, no pet.).
See, e.g., Thomas v. Long, 97 S.W.3d 300, 30203 (Tex. App.-Houston [14th Dist.] 2003, pet. granted) (refusing
interlocutory appeal of denial of summary judgment based on lack of subject matter jurisdiction as no order granted or
denied a plea to the jurisdiction); Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 472 (Tex.App.-Houston [1st Dist.] 2002, no
pet.) (refusing interlocutory appeal because trial court's order was summary judgment based on immunity from liability
rather than plea to the jurisdiction based on immunity from suit).
Lamar Univ. v. Doe, 971 S.W.2d 191, 193 (Tex.App.-Beaumont 1998, no pet.).
TEX.R. CIV. PROC. 85:
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement, or any other
dilatory pleas; of special exceptions, of general denial, and any defense by way of avoidance or estoppel, and it may
present a cross-action, which to that extent will place defendant in the attitude of a plaintiff. Matters in avoidance
and estoppel may be stated together, or in several special pleas, each presenting a distinct defense, and numbered
so as to admit of separate issues to be formed on them.
(Emphasis added).
34 S.W.3d 547 (Tex.2000).
Appendix 11
18
47 Tex. Sup. Ct. J. 386
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
Id. at 555.
Id.
Id. at 554.
See id. at 555 (rejecting plaintiffs' demand for remand for full evidentiary hearing because they did not contest evidence
at original plea to the jurisdiction hearing).
See, e.g., Speer v. Stover, 685 S.W.2d 22, 23 (Tex.1985) (per curiam) (considering plea to jurisdiction even though
misnamed plea in abatement); see also TEX.R. CIV. PROC. 71 (stating [w]hen a party has mistakenly designated any
plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated).
Some courts themselves appear to use the possible terms for immunity motions interchangeably. See, e.g., State
v. Executive Condos., Inc., 673 S.W.2d 330, 33132 (Tex.App.-Corpus Christi 1984, writ refused n.r.e.) (referring to
immunity motion as plea to the jurisdiction when it was filed, plea in abatement when it was denied, and motion to
dismiss when it was reversed).
See TEX. CIV. PRAC. & REM.CODE 101.025(a) (waiving immunity to suit to the extent of liability under chapter 101),
101.021 (creating governmental liability for specified acts resulting from negligence, premises conditions, and use of
property to the extent private persons would be liable).
See TEX.R. CIV. PROC. 166a(c).
See, e.g., John G. & Marie Stella Kenedy Mem'l Found. v. Mauro, 921 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1995,
writ denied); Tex. Dep't of Corr. v. Winters, 765 S.W.2d 531, 532 (Tex.App.-Beaumont 1989, writ denied); Martine v. Bd. of
Regents, State Senior Colleges of Tex., 578 S.W.2d 465, 469 (Tex.Civ.App.-Tyler 1979, no writ); Harrison v. Bunnell, 420
S.W.2d 777, 778 (Tex.Civ.App.-Austin 1967, no writ); State v. McDonald, 220 S.W.2d 732, 732 (Tex.Civ.App.-Texarkana
1949, writ refused); Porter v. Langley, 155 S.W. 1042, 1043 (Tex.Civ.App.-Dallas 1913, writ refused).
See, e.g., Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 68183 (Tex.App.-Amarillo 1998, pet. denied); Russell v.
Tex. Dep't of Human Res., 746 S.W.2d 510, 513 (Tex.App.-Texarkana 1988, writ denied); Gay v. State, 730 S.W.2d 154,
159 (Tex.App.-Amarillo 1987, no writ).
See, e.g., Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003) (sovereign immunity asserted by plea
to the jurisdiction and motion for summary judgment); County of Cameron v. Brown, 80 S.W.3d 549, 553 (Tex.2002)
(sovereign immunity asserted by plea to the jurisdiction and special exceptions).
See, e.g., Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 910 (Tex.1974) (reversing summary judgment based on immunity
as plaintiff was not allowed opportunity to replead).
Cameron, 80 S.W.3d at 555; Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002).
See Brown, 80 S.W.3d at 559; Herring, 513 S.W.2d at 910.
See, e.g., Brown, 80 S.W.3d at 556 (holding foreseeability issue raised by plea to the jurisdiction presented fact question
for jury).
Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, 81213 (1947).
See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 63839 (Tex.1999).
See Baker v. Monsanto Co., 111 S.W.3d 158, 159 (Tex.2003) (per curiam) (asserting limitations by summary judgment);
City of Port Arthur v. Tillman, 398 S.W.2d 750, 751 (Tex.1965) (asserting limitations by special exception).
End of Document
Appendix 11
19
Texas Dept. of Public Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112 (2011)
39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428
343 S.W.3d 112

TEXAS DEPARTMENT OF
PUBLIC SAFETY, Petitioner,
v.
COX TEXAS NEWSPAPERS, L.P., and
Hearst Newspapers, L.L.C., Respondents.
No. 090530. | Argued Sept.
15, 2010. | Decided July 1, 2011.
Synopsis
Background: Newspapers brought action under Texas Public
Information Act (PIA) against Department of Public Safety
(DPS), seeking writ of mandamus to compel the disclosure of
expense vouchers relating to Governor's travel. After a bench
trial, the 261st Judicial District Court, Travis County, Scott
H. Jenkins, J., granted the writ. Department appealed, and
the Court of Appeals, 287 S.W.3d 390, affirmed. The DPS
petitioned for review.
[Holding:] Upon granting review, the Supreme Court,

Jefferson, C.J., held that remand was necessary to determine
if revelation of requested documents substantially threatened
physical harm.

Wainwright, J., filed opinion concurring in the judgment
joined by Johnson, J.

*112 Michael P. Murphy, Asst. Solicitor General, James
C. Ho, Gibson Dunn & Crutcher LLP, Dallas, David S.
Morales, Office of the Attorney General of Texas, Deputy
First Assistant Attorney General, Attorney General Greg
W. Abbott, Attorney General of Texas, Peter Carl Hansen,
Office of the Attorney General, Bill Davis, Office of the
Attorney General of Texas, Office of Solicitor General,
Barbara Bryant Deane, Assistant Attorney General, Brenda
Loudermilk, Office of the Attorney General of Texas,
Matthew T. Bohuslav, Office of the Attorney General, for
Texas Department of Public Safety.
William Gerow Christian, Graves Dougherty Hearon &

Moody, PC, Austin, for Cox Texas Newspapers, L.P.
Joseph R. Larsen, Sedgwick, Detert, Moran & Arnold,
LLP, Houston, for Amicus Curiae Freedom of Information
Foundation of Texas.
Opinion
*113 Chief Justice JEFFERSON delivered the opinion of
the Court, joined by Justice HECHT, Justice GREEN, Justice
GUZMAN, and Justice LEHRMANN.
Our common law protects from public disclosure highly
intimate or embarrassing facts. We must decide whether it
also protects information that substantially threatens physical
harm. We conclude that it does. Both sides raise important
questions, not just about safety but also about the public's
right to know how the government spends taxpayer money.
Those issues could not have been fully litigated under the
standard that prevailed before today's decision. Accordingly,
we reverse the court of appeals' judgment and remand the case
to the trial court for further proceedings.
I. Background
In separate requests, two reporters representing three
newspapers asked the Department of Public Safety for travel
vouchers from Governor Rick Perry's security detail. One
request was limited to the Governor's out-of-state trips in
2001 and 2007; the other was not confined to a specific period
of travel. Believing all of the documents to be excepted from
disclosure under the Public Information Act (specifically
Government Code section 552.101), DPS sought a ruling
from the Attorney General's office.
DPS noted that it is responsible for staffing the governor's
protective detail and that it does not publicly discuss
security practices or the identity or numbers of officers
so assigned. DPS offered to release aggregated expense
information, warning that releasing the vouchers themselves
would necessarily reveal the number of officers who traveled
with the governor and his family, data that would be
valuable information for someone who intended to cause [the
governor] harm.
Based solely on DPS's letter and inspection of a subset of
the responsive documents, the Attorney General determined
that release of the information would place the governor
in imminent threat of physical danger. Accordingly, the
Appendix 12
Attorney General concluded that the information fell within

a special circumstances aspect of common law privacy that
required DPS to withhold the submitted information in its
entirety under Government Code section 552.101. 1 Cox and
Hearst, publishers of the newspapers in question, sued DPS,
seeking a writ of mandamus to compel complete disclosure.
See TEX. GOV'T CODE 552.321(a). After a bench trial, the
trial court found that public disclosure of the information in
the vouchers would not put any person in imminent threat of
physical danger or create a substantial risk of serious bodily
harm from a reasonably perceived likely threat. The trial court
ordered the clerk to issue a writ of mandamus compelling DPS
to produce the vouchers in their entirety.
The court of appeals affirmed. 287 S.W.3d 390, 398. It
held that the Attorney General's special circumstances
exception conflicted with Industrial Foundation of the South
v. Texas Industrial Accident Board, 540 S.W.2d 668, 685
(Tex.1976). *114 Id. at 394. According to the court of
appeals, Industrial Foundation declared its two-part test to
be the sole criteria for the disclosure of information to
be deemed a wrongful publication of private information
under common law. Id. (quoting Industrial Foundation, 540
S.W.2d at 686). Because DPS conceded that the first prong
of that test (that the information contains highly intimate or
embarrassing facts) had not been satisfied, the court held that
the vouchers could not be withheld based on the common
law right of privacy. Id. at 395. The court also rejected
DPS's claim that the Fourteenth Amendment to the United
States Constitution barred disclosure of information that
would create a substantial risk of serious bodily harm from
a perceived likely threat. Id. at 398. The court observed that
[w]hether the privacy interests at issue here should merit
protection under the PIA is a question for the legislature. Id.
We granted the petition for review to examine whether
the public's right to information is subject to reasonable
limitations when its production may lead to physical harm. 2
53 Tex. Sup.Ct. J. 1023 (Aug. 20, 2010). DPS asserts that the
vouchers are confidential under the common law and under
Government Code section 418.176(a)(2). 3 We address each
argument in turn.
II. Does other law include a common law right to be

free from physical harm?
[1] The PIA guarantees access to public information, subject
to certain exceptions. See generally TEX. GOV'T CODE
ch. 552. Those exceptions embrace the understanding that
the public's right to know is tempered by the individual and

other interests at stake in disclosing that information. See
generally TEX. GOV'T CODE ch. 552, subch. C. In 1999, the
Legislature excluded certain categories of public information
from the exceptions. See id. 552.022. This core public
information is currently 4 protected from disclosure only if
it is expressly confidential under other law, meaning law
other than Chapter 552 of the Government Code, which is
the Public Information Act. In re City of Georgetown, 53
S.W.3d 328, 331 (Tex.2001) (quoting TEX. GOV'T CODE
552.022(a)). Other law includes other statutes, judicial
decisions, and rules promulgated by the judiciary. Id. at
332. A law does not have to use the word confidential to
expressly impose confidentiality. Id. at 334.
The parties agree that the vouchers contain core public
information. 5 See TEX. GOV'T CODE 552.022(a)(3)
(including information in an account, voucher, or contract
relating to the receipt or expenditure of public or other funds
by a governmental body). For this reason, that information
is presently unaffected by the Legislature's passage, five
days after the court of appeals' decision, of an amendment
excepting public information from disclosure if, under
the specific circumstances pertaining to the [government]
employee or officer, disclosure of the information would
subject the employee or officer to a substantial *115 threat
of physical harm. Act of June 3, 2009, 81st Leg., R.S., ch.
283, 4, 2009 Tex. Gen. Laws 742 (codified at TEX. GOV'T
CODE 552.151). Because this exception is in the PIA, it
does not currently apply to core public information. 6 TEX.
GOV'T CODE 552.022(a).
We turn, then, to DPS's argument that other law includes a
common law right to be free from physical harm. DPS urges
an exception for cases in which there is an imminent threat of
physical danger. DPS asserts that if the common law protects
personal privacy, it must logically protect physical safety as
well. Ensuring the physical safety of its citizens, says DPS, is
the primary concern of every government, 7 and preventing
disclosure that would threaten physical safety is deeply rooted
in the common law. See, e.g., Fisher v. Carrousel Motor
Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (observing that
[t]he interest in freedom from intentional and unpermitted
contacts with the plaintiff's person is protected by an action
for the tort commonly called battery (quoting WILLIAM
L. PROSSER, LAW OF TORTS 32 (3d ed.1964))).
Appendix 12
Freedom from physical harm is indeed a hallmark of our

common law. One of our earliest reported cases involving
battery was decided by the Supreme Court of the Republic of
Texas. Eli Williams sued Jesse Benton for assault and battery.
Benton v. Williams, Dallam 496, 496 (Tex.1843). Benton
filed a plea asserting that he should not have to answer the
complaint because Williams [was] of African descent, and
not entitled by law to maintain his action. Id. at 49697. The
Court rejected that contention, even though the constitution at
that time provided that the descendants of Africans were not
entitled to the rights of citizens and shall not be permitted
to remain permanently in the republic without the consent of
congress. Id. at 497. The Court held that insulating Benton
from Williams's battery claim would be against law, contrary
to the spirit of our institutions, and in violation of the dictates
of common humanity. Id. The Court affirmed the trial court's
judgment against Benton. Id.
construe the PIA in favor of disclosure. See TEX. GOV'T

CODE 552.001(b). Several PIA exceptions are grounded
in a concern for physical safety, and the Legislature's swift
passage of an exception for information that would pose a
substantial threat of physical harm confirms the primacy of
this interest. 11
Additionally, since the 1970s, the attorney general has applied
a special circumstances exception to disclosure in over 230
cases. Often, these special circumstances included situations
in which disclosure would place individuals in danger of
physical harm. 12 The Attorney General *117 has described
the exception as covering a very narrow set of situations in
which release of the information 13 would cause someone
to face an imminent threat of physical danger. Tex. Att'y
Gen. ORD19770169, at 6. It must be more than a desire for
privacy or a generalized fear of harassment or retribution. Id.
Our courts have, since then, consistently protected

individuals' right to be free from physical harm. 8 Blackstone
described three absolute rights, one of which was [t]he
right of personal security, consisting of a person's
legal and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. 1 WILLIAM
BLACKSTONE, COMMENTARIES *125 (1769). The
common law's recognition of an action for battery emerged
as a means of keep[ing] the peace by affording a substitute
*116 for private retribution, 9 and we have recognized
common law battery claims for more than a century. See,
e.g., Sargent v. Carnes, 84 Tex. 156, 19 S.W. 378, 378
(1892) (affirming judgment on plaintiff's assault and battery
claim). Protection from physical harm is thus more firmly
entrenched in our common law than the right of privacy, a
relative newcomer. W. PAGE KEETON, ET AL., THE LAW
OF TORTS 849 (5th ed.1984)(noting that [p]rior to the year
1890, no English or American court ever had granted relief
expressly based upon the invasion [of the right of privacy]).
Indeed, we did not formally recognize the privacy tort until
1973, although our courts of civil appeals had hinted at it
previously. 10
Nonetheless, thirty-five years ago, we held that the common
law privacy protection exempted documents from disclosure
under the PIA. Indus. Found., 540 S.W.2d at 686. We have
never addressed whether the common law right to be free
from physical harm applies as well. We conclude that it does.
The Legislature has recognized the importance of protecting
physical safety, notwithstanding the mandate that courts
The court of appeals held that the Attorney General's

special circumstances exception conflicted with Industrial
Foundation, in which we said that the sole criteria for
determining whether information was exempt from disclosure
as confidential by judicial decision was whether the
information was of legitimate public concern and whether
its publication would be highly objectionable to a reasonable
person. 287 S.W.3d at 394 (citing Industrial Foundation, 540
S.W.2d at 686). That is an accurate statement for assessing
matters involving that branch of the invasion-of-privacy tort
(the only exception at issue in Industrial Foundation ), but not
for other matters that are confidential under judicial decision.
See, e.g., Ctr. for Econ. Justice v. Am. Ins. Ass'n, 39 S.W.3d
337, 348 (Tex.App.-Austin 2001, no pet.) (determining that
because the [c]ommon law protects information that meets
the traditional six-factor test for trade-secret protection,
information was excepted from disclosure under the PIA).
The court of appeals' holding is understandable, given
that the Attorney General has characterized the special
circumstances exception as falling under the common law
privacy umbrella. See, e.g., Tex. Att'y Gen. OR200507052,
at 6 (noting that information also may be withheld under
section 552.101 in conjunction with common law privacy
upon a showing of certain special circumstances' ). But
freedom from physical harm is an independent interest
protected under law, untethered to the right of privacy.
The privacy interest protects against four distinct kinds
of invasions (intrusion upon seclusion, public disclosure
of private facts, false light publicity, and appropriation);
Appendix 12
physical harm is not among them. 14 KEETON, THE LAW

OF TORTS 40, 851 (noting that privacy is not one tort,
but a complex of four). We have characterized privacy as
the right of an individual to be left alone, to live a life of
seclusion, to be free from unwarranted publicity. Billings v.
Atkinson, 489 S.W.2d 858, 859 (Tex.1973) (citing 77 C.J.S.
Right of Privacy 1). By contrast, the common law right to
be free from physical harm is an interest in personal integrity,
distinct from that covered by the privacy interest. KEETON,
the vouchers requested by Cox and Hearst would not put

any person in an imminent threat of physical danger or
create a substantial risk of serious bodily harm from a
reasonably perceived likely threatthe standard for the
Attorney General's special circumstances test and the
constitutional exception urged by DPS, respectively. This
determination is close, but not identical, to the standard we
announce today for the common law right of physical safety.
THE LAW OF TORTS 40. 15 It is integral to a civil society.

Although mischaracterized as a privacy related exception, the
special circumstances doctrine protects the right we have
long recognized at common law.
We have remanded a case to the trial court when we

have changed our precedent or when the applicable law
has otherwise evolved between the time of trial and the
disposition of the appeal. See, e.g., Twyman v. Twyman, 855
S.W.2d 619, 626 (Tex.1993) (remand in interest of justice
because case was tried on legal theory overruled by Court);
CallerTimes Publ'g Co., Inc. v. Triad Commc'ns, Inc., 826
S.W.2d 576, 588 (Tex.1992) (remand in interest of justice
because Court announced new liability standard). We have
also remanded for a trial court to determine in light of [our]
opinion, whether any of the information should be withheld
from disclosure because confidential. Indus. Found., 540
S.W.2d at 686. Here, our decision recognizes, for the first
time, a common law physical safety exception to the PIA.
And even though the interest protected under that exception is
well-established in our law, we have never before addressed
whether or how it applies to the PIA. We conclude that a
remand is appropriate.
[2] Both the legislative and executive branches have

recognized that, as valuable *118 as the right to public
information is, a person's physical safety supersedes it. Those
branches are not alone. Our common law protectsand has
always protectedthat interest, making such information
confidential. We must decide, then, the appropriate standard
for assessing whether disclosure would violate that interest.
While we are not bound by the Legislature's policy decisions
when we consider protections afforded by the common law,
the boundaries the Legislature has drawn do inform our
decision. Ford Motor Co. v. Miles, 967 S.W.2d 377, 383
(Tex.1998); see also Austin v. HealthTrust, Inc., 967 S.W.2d
400, 403 (Tex.1998). We conclude that the substantial threat
of physical harm standard enunciated by the Legislature
appropriately describes the interest protected under the
common law, and information may be withheld if disclosure
would create a substantial threat of physical harm. See TEX.
GOV'T CODE 552.151. We next examine that standard in
light of the record produced at trial.
[3]
The trial court heard testimony from witnesses
and reviewed the relevant documents and other exhibits.
Although DPS proferred categories of lump sum expenses,
showing amounts spent on airfare, lodging, meals, car rental,
and related matters, it argued that disclosing the vouchers
themselves would give those intent on harming the governor
the means to accomplish that goal. DPS contended that
the information revealed travel patterns, the number and
placement of DPS officers on the detail, and how far in
advance officers visit a location prior to the governor's arrival.
The publishers presented evidence that the itemized vouchers
and related documents disclose more information (and are
more valuable to taxpayers, who fund the travel) than do
line items with lump sum totals. The trial court concluded,
categorically, that public disclosure of the information in
On remand, the trial court must closely examine each of

the disputed documents. DPS is likely correct in one sense:
disclosure of some of the information in the vouchers may
create a substantial threat of physical harm because it reveals
specific details about the number of officers assigned to
protect the governor, their general *119 location in relation
to him, and their dates of travel. Indeed, the vouchers divulge
the number of officers the DPS deemed necessary for the
governor's security, the specific location (hotel and room
number) where the officers resided when providing that
security, and the identity of each officer the Department
assigned to the governor's protection. Because the past
is prologue, at least when it reveals protocol DPS has
implemented for ensuring the safety of government officials,
we cannot agree that information from prior trips could not
be used to inflict future harm.
But this may not justify withholding all but the ultimate
dollar figure for trips abroad, as DPS proposes. In this
respect, the publishers' request has merit: the documents
themselves provide a more complete picture of how taxpayer
Appendix 12
money is spent than do the general categories and totals

produced by DPS. This fact was not lost on the Legislature,
which categorized certain information in vouchers as core
public information. See TEX. GOV'T CODE 552.022(a).
And we agree with the trial court that the public has a
legitimate interest in how public money is spent on official
state business. The dividing line between disclosure and
restraint must be determined by proof. To the extent DPS
can show, with detailed evidence or expert testimony, that
revelation substantially threatens harmas it has with respect
to the number of guards protecting the governorthen the
information at issue may be withheld. A certain amount
of deference must be afforded DPS officers and other law
enforcement experts about the probability of harm, although
vague assertions of risk will not carry the day. But the
public's right to complete information 16 must yield when
disclosure of that information would substantially threaten
physical harm. On remand, the trial court must ascertain,
under this standard, what information may be confidential and
what must be disclosed. Accordingly, we remand the case for
a new trial.
A brief word in response to the concurrence. The concurrence
says our holding would establish judge-made exceptions
to the PIA's required disclosure of information to the
public, contradicting the unanimous determination in our
precedent, Industrial Foundation of the South v. Texas
Industrial Accident Board. 343 S.W.3d at 121. But
Industrial Foundation recognized that the PIA is subject to
the common law and itself adopted a judge-made exception
to disclosure: the right of privacy. Indus. Found., 540
S.W.2d at 683 (holding that right of privacy acknowledged in
Billings v. Atkinson was the type of information which the
Legislature intended to exempt from mandatory disclosure
under the PIA provision excepting matters confidential by
judicial decision). We squarely held in In re Georgetown
(a case involving core public information) that other law
included not just statutes and rules, but judicial decisions.
Georgetown, 53 S.W.3d at 332. To reach that holding,
we relied on a United States Supreme Court decision that
concluded the phrase all other law, by itself, indicates
no limitation and did not allow any distinction between
positive enactments and common-law rules of liability.
Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass'n, 499
U.S. 117, 12829, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991),
quoted in Georgetown, 53 S.W.3d at 333. The concurrence's
position is not unlike the Georgetown dissent's, a position
we rejected then. We reject it again today. Compare 343
S.W.3d at 124 (suggesting that other law must mean
other statutory law where *120 the Legislature has declared

certain information confidential), with Georgetown, 53
S.W.3d at 339 (Abbott, J., dissenting) (suggesting that only
the Legislature could promulgate laws, so that rules of
procedure could not be other law).
[4] The concurrence argues that because the information
itself may not implicate privacy concerns, it cannot be
protected from disclosure as expressly confidential under
other law. TEX. GOV'T CODE 552.022. But information
does not exist in a vacuum. When disclosure carries
with it a serious risk of bodily harm, we cannot ignore
those consequences when deciding whether common law
protections apply. Cf. U.S. Dep't of State v. Ray, 502
U.S. 164, 177, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)
(considering retaliatory action that would occur if information
was disclosed). 17 Our common law protects individuals from
physical harm, and, consistent with the PIA, 18 that protection
extends to the disclosure of information that substantially
threatens such harm.
III. Are the vouchers confidential under Government

Code section 418.176?
Finally, DPS contends the documents are exempt from
disclosure under Government Code section 418.176. That
statute, passed in 2003, 19 makes certain information relating
to emergency response providers confidential. The law
provides, in pertinent part:
Information is confidential if the information is collected,

assembled, or maintained by or for a governmental entity
for the purpose of preventing, detecting, responding to, or
investigating an act of terrorism or related criminal activity
and:
(1) relates to the staffing requirements of an
emergency response provider, including a law
enforcement agency, a fire-fighting agency, or an
emergency services agency;
(2) relates to a tactical plan of the provider; or
(3) consists of a list or compilation of pager or
telephone numbers, including mobile and cellular
telephone numbers, of the provider.
TEX. GOV'T CODE 418.176(a).
Appendix 12
DPS contends that section 418.176 is other law making the

vouchers confidential. See id. 552.101. Cox and Hearst argue
that the vouchers do not meet section 418.176's requirements
and, moreover, that DPS waived the issue by failing to raise
it in the trial court and the court of appeals. Because we are
remanding for a new trial, DPS may pursue this argument in
the trial court in the first instance. Cf. Kallam v. Boyd, 232
S.W.3d 774, 776 (Tex.2007) (deferring decision on issue until
it had been fully litigated below so that we will have the
benefit of developed arguments on both sides and lower court
opinions squarely addressing the question (quoting *121
Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522,
118 L.Ed.2d 153 (1992))).
IV. Conclusion
We reverse the court of appeals' judgment and remand the
case to the trial court for further proceedings consistent with
this opinion. TEX.R.APP. P. 60.2(d).
Justice WAINWRIGHT delivered a concurring opinion,

joined by Justice JOHNSON.
Justice MEDINA and Justice WILLETT did not participate
in the decision.
Justice WAINWRIGHT, joined by Justice JOHNSON,
concurring in the judgment.
The media requested vouchers that detail expenditure of
public funds for the governor's security detail when he
travels. Because it concerns how the government spends
taxpayer monies, the information in vouchers is not just
public information under the Public Information Act (PIA),
it is core public information, with a greater emphasis on
disclosure than other public information. See TEX. GOV'T
CODE 552.022(a). The Texas Department of Public Safety
argues that the information should not be disclosed, even
though it is core public information, because of the risk to
the safety of elected officials. There is no express exception
to disclosure for this core public information. This tension
resulted in this Court concluding that it may establish
judge-made exceptions to the PIA's required disclosure
of information to the public, contradicting the unanimous
determination in our precedent Industrial Foundation of
the South v. Texas Industrial Accident Board. See 540
S.W.2d 668, 682 (Tex.1976) (plurality op.) (We decline to
adopt an interpretation which would allow the court in its
discretion to deny disclosure even though there is no specific
exception provided....); Id. at 692 (Reavley, J., dissenting)
(It was not the intention of the Legislature to turn over the
administration of the Open Records Act to the judiciary.).
The Court concludes that it is not bound by the Legislature's
policy decisions in deciding common law exceptions to the
statute, leaving no apparent boundaries on new common law
exceptions to the legislated disclosure requirements in the
PIA that courts may now create. 343 S.W.3d 112.
Further complicating the case, the trial court made an express
finding that [p]ublic disclosure of the information in the
vouchers requested by [the media representatives] would not
put any person in an imminent threat of physical danger
or create a substantial risk of serious bodily harm from a
reasonably perceived likely threat. The Court acknowledges
a lack of expertise in such matters and credits the law
enforcement testimony that disclosure of the vouchers would
create a threat of injury. While I agree with the Court's strong
desire to keep public officials safe, once the Legislature
weighed in, the question of keeping public information from
the people is not one for the courts. The Court should not
judicially create an exception to disclosure that contradicts
the Legislature's expressed intent in the PIA. I cannot join the
Court's opinion, but because I believe that DPS argued, and
the trial court accepted, an exception not allowed by law, I
would remand in the interests of justice for the trial court to
consider other exceptions grounded in other law.
I. Background
The Public Information Act contains a comprehensive
scheme arming the public with statutory mandates for the
government to disclose information collected, assembled,
*122 or maintained under a law or ordinance or in
connection with business by or for a governmental body,
and it is to be liberally construed to grant requests for
information. TEX. GOV'T CODE 552.001(b), .002(a).
All such information is subject to disclosure unless it
is either later excepted from the definition of public
information or it falls under an exception to disclosure.
See id. 552.101.151; cf., e.g., TEX. ELEC.CODE
13.004(c) (defining certain voter registration information as
confidential and not constitut[ing] public information for
purposes of the PIA). Public information may be excepted
from disclosure under Subchapter C, or may be prohibited
from disclosure if the information is deemed confidential.
TEX. GOV'T CODE 552.007, .101, .352.
Appendix 12
There is, however, another level of public information.

Members of this Court and the Attorney General's Office
have, in the past, called it super public information;
today the Court calls it core public information. See 343
S.W.3d 112; In re City of Georgetown, 53 S.W.3d 328, 341
(Tex.2001) (Abbott, J., dissenting); Tex. Att'y Gen. OR2004
7388. This is the type of public information at the core
of government functions, generally relating to laws actually
enacted, decisions of the judiciary, votes of the Legislature,
and how the government spends the people's money. See
TEX. GOV'T CODE 552.022, .0221, .0225. As such, core
public information is not subject to the routine exclusions in
Subchapter C, but may be withheld from the public only if
the information is expressly confidential under other law.
Id. 552.022(a). This rule was important enough that the
Legislature specifically commanded courts to comply with
it. Section 552.022(b) mandates that [a] court in this state
may not order a governmental body or an officer for public
information to withhold from public inspection any category
of public information described by Subsection (a) or to not
produce the category of public information for inspection or
duplication, unless the category of information is expressly
made confidential under other law. Id. 552.022(b).
Reporters representing the Austin AmericanStatesman, San
Antonio ExpressNews, and the Houston Chronicle sent
requests to DPS officials. One reporter requested travel
vouchers for Gov. Rick Perry's security detail for all trips
out of state during two time periods. The first time period
is January through December 2001. The second time period
is January through June 2007. Another requested access to
or copies of travel vouchers for Gov. Rick Perry's security
detail. The parties acknowledge that these requests include
information in an account, voucher, or contract relating
to the receipt or expenditure of public or other funds by
a governmental body. See id. 552.022(a)(3). As such,
the information requested is core public information. Id.
552.022.
II. Disclosure of Core Public Information as

Expressly Confidential Under Other Law
Compared to the dozens of exceptions for disclosure of
regular public information, there is only one exception to
the PIA's mandated disclosure of core public information
if it is expressly confidential under other law. Id. The
text of section 552.022's narrow exclusion contains three
facial requirements: the information must be confidential,
such designation that the information is confidential must

be express, and the source of the confidential designation
must be other law. This requirement was put in place by
a 1999 amendment. See Act of May 25, 1999, 76th Leg.,
R.S., ch. 1319, 5, 1999 Tex. Gen. Laws 4501. Prior to
the amendment, *123 section 552.022 of the Government
Code merely recognized the types of information enumerated
in section 552.022 were public information. It recognized
that vouchers were public information if the information
is not otherwise made confidential by law. Id. But the
amendment added language to the introductory clause,
requiring that all types of core public information enumerated
in section 552.022 are public information and not excepted
from required disclosure under this chapter unless they are
expressly confidential under other law. Id. 1 This 1999
amendment was heralded as a true success in providing
a citizen ... full and complete information regarding
official acts of those who represent them and the affairs of
government. Rick L. Duncan, No More Secrets: How Recent
Legislative Changes Will Allow the Public Greater Access to
Information, 1 TEX. TECH. J. TEX. ADMIN. L. 115, 133
(2000). We should give effect to all the words in a statute,
and to changes in the words of legislative acts. See Indep. Life
Ins. Co. of Am. v. Work, 124 Tex. 281, 77 S.W.2d 1036, 1039
(1934). As discussed below, the Court's opinion does not,
as it ignores the express, confidential, and other law
requirements of the statute.
A. Other Law
Other law means law other than the Public Information Act.
City of Georgetown, 53 S.W.3d at 33233. I disagree with the
Court's assertion that other law exceptions to disclosure of
core public information can mean judicial decisions. 343
S.W.3d 112. The Court cites as authority for its holding the
case of In re City of Georgetown, a case in which the Court
examined whether rules in the Texas Rules of Civil Procedure
regarding attorney-client privilege constituted other law
under section 552.022. Id. (citing City of Georgetown, 53
S.W.3d at 332). In City of Georgetown, the Court held that
because our enacted rules of court have the same force
and effect as statutes, and the rules were derived from
previously enacted statutes, such rules constitute other law
under section 552.022. 53 S.W.3d at 332 (quotation omitted).
The Court today misreads City of Georgetown, asserting that
it serves as the basis for creating common law exceptions to
the PIA. The Court cites no other Texas authority for this
holding.
Appendix 12
Other provisions in the PIA also indicate that judicial

decisions should not be other law for the purpose of the
section. See Molinet v. Kimbrell, S.W.3d , 2011
WL 182230 (Tex.2011) (noting that we examine the entire
act to glean the meaning of a statute's text (citations and
quotations omitted)). In section 552.101 of the PIA, the
Legislature excepted from disclosure information that is
considered to be confidential by law, either constitutional,
statutory, or by judicial decision. TEX. GOV'T CODE
552.101. This provision applies to public information
defined and disclosable pursuant to section 552.021, and not
to the core public information delineated in section 552.022.
If we were to interpret other law in section 552.022
to include law made pursuant to a judicial decision, we
would effectively apply section 552.101's judicial decision
exception to disclosure to core public information. This
*124 is contrary to the Legislature's explicit statement
that core public information is not excepted from required
disclosure under this chapter, including section 552.101. Id.
552.022 (emphasis added). The most logical reading, then,
is that other law must mean other statutory law where the
Legislature has declared certain information confidential, 2
or rules of court drafted by this Court that are commensurate
with statutes. See City of Georgetown, 53 S.W.3d at 333.
The Court argues that the other law in this case is the
individual['s] right to be free from physical harm, as
manifested in the tort of battery. 343 S.W.3d 112. The Court
posits that because physical safety is the primary concern of
every government, and the PIA protects private information,
then it must surely protect physical safety as well. Id. at 115
(quoting United States v. Salerno, 481 U.S. 739, 755, 107
S.Ct. 2095, 95 L.Ed.2d 697 (1987)). The reasoning is a sound
policy argument in drafting legislation. Elected officials
should not be subjected to harm by dangerous persons whose
task may be made easier through public information requests.
But the policy decision of how to satisfy that objective is
not ours. The Legislature has made nondisclosure of the core
public information at issue dependent on it being specifically
designated confidential by rules or statutes outside of the PIA.
under section 552.022, and, as discussed above, the two

provisions are not coterminous.
In Industrial Foundation, all members of the Court agreed
that the scope of the judicial decision exception did not give
the Court a blank check to create common law exceptions
to the PIA. Id. at 68182 (plurality op.). It was not the
intention of the Legislature to turn over the administration of
the Open Records Act to the judiciary. Id. at 692 (Reavley,
J., dissenting, joined by Steakley, Pope, and Denton, JJ.);
see also Tex. Comptroller of Pub. Accounts v. Att'y Gen.
of Tex., S.W.3d , 2010 WL 4910163 (Tex.2010)
(Wainwright, J., dissenting) ([C]ourts do not have the
discretion to classify information as confidential on an ad
hoc basis; confidentiality of public information is to be
determined by the terms of the Act.). As I discussed in
Texas Comptroller, the Legislature limited our ability to
create judicial exceptions to the PIA. Id. at . Thus, the
Legislature's definition of the judicial exception includes
only the privacy torts recognized at the time of Industrial
Foundation. See 540 S.W.2d at 67881. There was one such
tort at that time-public disclosure of private facts. I would
thus limit the scope of the judicial decision exception to
that tort. My fundamental concern is the Court's willingness
to create common law exceptions to the comprehensive
disclosure scheme of the PIA, weakening the PIA in three
consecutive opinions interpreting the Act *125 City of
Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex.2010) (extending
response periods by governmental entities to requests for
public information when the request was unclear), Texas
Comptroller, S.W.3d at (holding dates of birth
confidential under judicial decision and excepting them
from disclosure under the PIA), and this case, DPS v. Cox.
Immediately after the dispute over the disclosure of travel
vouchers arose, the Legislature considered making such
voucher information confidential. 3 But it did not declare
vouchers from security details confidential, nor did it
except these vouchers from the definition of public
information under 552.022(a). Instead, the Legislature
passed what is currently codified as section 552.151 of the
Government Code. 4 That section provides:
Further, this Court has never held that other torts would
protect the disclosure of core public information under
section 552.022. In Industrial Foundation of the South v.
Texas Industrial Accident Board, we decided the scope
of information protected by judicial decision under the
predecessor to Government Code section 552.101. 540
S.W.2d at 683. This is not an interpretation of other law
Information in the custody of a governmental body that

relates to an employee or officer of the governmental
body is excepted from the requirements of Section 552.021
if, under the specific circumstances pertaining to the
employee or officer, disclosure of the information would
Appendix 12
subject the employee or officer to a substantial threat of

physical harm.
TEX. GOV'T CODE 552.151 (to be recodified at TEX.
GOV'T CODE 552.152). The amendment applies only
to information to be disclosed pursuant to section 552.021,
i.e., regular public information. It is an exception in
Subchapter C, which specifically does not apply to core
public information, like information in the vouchers at
issue in this case. The Court argues that the Legislature's
swift passage of section 552.151 of the Government
Code confirms the primacy of the government's interest
in protection against physical harm. 343 S.W.3d 112. But
the Legislature's intent is best manifested in what actually
becomes law. Molinet, S.W.3d at (The plain
meaning of the text is the best expression of legislative
intent unless a *126 different meaning is apparent....).
The promulgation of section 552.151 demonstrates the
opposite. Section 552.151 is not an exception to the
mandated disclosure of core public information. The
Court's opinion grafts the Legislature's test found in
section 552.151 onto situations in which the Legislature
unambiguously did not intend. The Court would rewrite
section 552.151 to hold that such information is excepted
from the requirements of sections 552.021 or 552.022
and moves the section out of the PIA such that it can be
considered other law. 343 S.W.3d 112 (emphasis added).
The Court should not by common law override a specific
statutory mandate.
B. Confidential
Even if other law may include judicial decisions and
the common law, section 552.022 requires that the other
law declare the information confidential. Confidential
may have a fluid meaning, such as protected, secured,
or safeguarded. Cf. City of Georgetown, 53 S.W.3d at
334 (A law does not have to use the word confidential
to expressly impose confidentiality.). The Legislature has
enacted a plethora of laws that deem certain information
confidential for myriad purposes. See Tex. Comptroller,
S.W.3d (Wainwright, J., dissenting) (noting that
no fewer than 100 Texas statutes classify information as
confidential for purposes of the PIA); City of Georgetown,
53 S.W.3d at 33940 (Abbott, J., dissenting) (providing
four examples of information expressly made confidential
in the Transportation Code, Education Code, and Family
Code). Likewise, there are a number of tort actions, both
statutory and common law, that recognize that certain types
of information are private or confidential. 5 But in every
instance, the information itself is the issue, and the statute,

decision, rule, or crime exists to protect the information itself
or a person who will be directly harmed by the information's
release.
Once again, the Court creates a judicial exception to
disclosure of information in the PIA based on a possible use of
the information rather than the nature of the information itself.
In Texas Comptroller, the Court, for the first time, considered
derivative harm arising from the release of information
whether disclosure of birth dates of public employees, along
with other information, could be used for identity theft. The
Court held that such potential tortious use of the public
information constituted grounds to withhold the information
because it would constitute a clearly unwarranted invasion
of personal privacy. Tex. Comptroller, S.W.3d at .
But the courts are not free to balance the public's interest
in disclosure against the harm resulting to an individual
by reason of such disclosure. Indus. Found., 540 S.W.2d
at 68182 (plurality op.). This policy determination was
made by the Legislature when it enacted the statute. Id.
at 682. The Legislature granted the people's right to the
information after considering *127 its potential uses and
harms. The Court, apparently believing the Legislature did
not sufficiently execute its task, finds a new common law
exception to disclosure based on its own views of harm in the
potential use of, on this occasion, core public information.
In Texas Comptroller, as here, the Court did not restrict
itself to considering whether the actual release of the
information (state employees' birth dates) was harmful, but
rather whether, in the wrong hands and in combination with
other information, such as Social Security numbers, state
employees might be at higher risk for identity theft. Tex.
Comptroller, S.W.3d . The harm was derivative,
and the analysis allowed for post-hoc, judicially created
exceptions to disclosure. For the same reasons as in Texas
Comptroller, I believe the Court's analysis and application
of derivative harm to create an exception to disclosure is
inappropriate, particularly so because of the core public
nature of the information at issue, and because the Court's
rule could permit unfettered judicial discretion in declaring
any information not subject to disclosure. Its discovery of
this common law right may even inadvertently have the
effect of creating some common law cause of action for
wrongful disclosure of information, and may have the
potential to randomly and unnecessarily subject various
government agencies and officers to criminal liability for
simply disclosing what the Legislature determined, and
Appendix 12
the Court admits, is core public information. See TEX.

GOV'T CODE 552.352 (defining the misdemeanor crime
of distribution of information considered confidential under
the terms of this chapter).
C. Expressly
Even if our common law torts are other law, and even
if, somehow, the threat of the tort of battery declares some
unknown information confidential, the final requirement
of section 552.022 is that the other law must expressly
make the information confidential. The Court does not
address how it believes that the information at issue here
is expressly confidential. MerriamWebster's dictionary
defines express as directly, firmly, and explicitly stated.
MERRIAMWEBSTER DICTIONARY, available at http://
www.merriam-webster.com/dictionary/express (last visited
June 21, 2011). The tort of battery is when a person (a) ...
acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and (b) a harmful contact
with the person of the other directly or indirectly results.
RESTATEMENT (SECOND) OF TORTS 13 (1965); see
also Bailey v. C.S., 12 S.W.3d 159, 162 (Tex.App.-Dallas
2000, no pet.) (A person commits a battery if he intentionally
or knowingly causes physical contact with another when he
knows or should reasonably believe the other person will
regard the contact as offensive or provocative.). Nowhere in
the tort's elements, or in any of our cases, is it directly, firmly,
and explicitly stated that battery protects information from
disclosure. The tort concerns harmful or offensive intentional
contact. The Court ignores this critical requirement of the
statute limiting a court's ability to protect information from
disclosure.
Simply put, common law battery is not other law
under which the information at issue here is expressly
confidential. The Court oversteps legislated limits
recognized in Industrial Foundation to interpret exceptions
to disclosure under the PIA. For this reason, I do not join in
the Court's opinion.
*128 III. Remand Is Appropriate

Although I cannot join the Court's opinion, I join its judgment
that remand is appropriate. I believe DPS's and the trial court's
improper reliance on the special circumstances exception,
and the possibility of harm to public officials, warrants a

remand in the interests of justice. I also believe that DPS
should have the opportunity to argue that a specific exception
to disclosure made by the Homeland Security Act should
apply.
The Court relies on and builds upon the Attorney General's
special circumstances test, which the Attorney General has
applied numerous times in various letter rulings, in support of
its holding today. However, this test, and its rulings, do not
apply to the information at issue here nor to the legal theory
upon which the Court relies in withholding the information.
The genesis of the test is a one-page letter ruling from
1974, that was later expanded in 1977. It was not a
freestanding test to withhold information, but rather was
used in determining whether information could be withheld
as a clearly unwarranted invasion of personal privacy,
a separate, statutory exception to disclosure of non-core
public information in the Act. Tex. Att'y Gen. ORD
54 (1974); Tex. Att'y Gen. ORD169 (1977); see also
TEX. GOV'T CODE 552.102 (providing an exception for
regular public information for information in a personnel
file, the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy). In other words,
the attorney general examined special circumstances, such
as an employee's specific history of being threatened,
harassed, or stalked, to see if information in a state employee's
personnel file should not be disclosed under what is now
section 552.102 of the PIA. Rather than protecting more
information from disclosure, the special circumstances
test, as initially articulated by the attorney general, actually
required more information to be disclosed, because only
if the special circumstances existed could an employee's
personnel information (including his or her home address,
phone number, and other personal information) be withheld.
Tex. Att'y Gen. ORD54 (1974); Tex. Att'y Gen. ORD169
(1977).
In later attorney general opinions, though, the special
circumstances test was not discussed in conjunction with
section 552.102's clearly unwarranted invasion of personal
privacy in employees' personnel files, but rather as a
privacy exception or other judicial decision under section
552.101. See, e.g., Tex. Att'y Gen. OR200410845. No party
extensively discussed the evolution of this test in the attorney
general's office from 1977 until today. However, it appears
that the attorney general's basis for applying the special
circumstances test to information not subject to disclosure
Appendix 12
10
was based on the application of the tort of public disclosure

of private facts (discussed in Industrial Foundation and
analyzed under the employment file exception, predecessor
to section 552.102) as another judicial decision excluding
information pursuant to section 552.101.
It also appears that the Attorney General has determined
that section 5 52. 101 is other law for the purpose of
deciding whether core public information can be withheld.
I agree that the tort of public disclosure of private facts
may be a judicial decision, as it was extant at the time
the PIA was promulgated, that could be the basis of an
exclusion from disclosure under section 552.101 and may
also be other law by which core public information is
expressly confidential under section 552.022. However,
section 552.101, in and of itself, cannot be other law
to withhold core public information. To enact such a rule
would thwart the Legislature's *129 expressed intent that
core public information is not subject to the Subchapter
C exceptions, including section 552.101. This is further
evidenced by the fact that the Legislature's new special
circumstances exception, which appears to be similar
to the Attorney General's so-called common law privacy
special circumstances exception, is in Subchapter C,
thus currently applying to public information but not
core public information that must be disclosed pursuant to
section 552.022. Therefore, the Attorney General's special
circumstances exception should not apply to the information
here.
The Attorney General's special circumstances test cannot
apply in this situation. However, because the use of the test
as an independent basis for withholding information was
reasonably well established in a number of attorney general
letter rulings for a number of years, because DPS and the
trial court erroneously relied upon the test, and because of the
serious personal safety concerns at issue in this case, I would
remand in the interest of justice to allow DPS to argue any
and all exceptions that are based on other law, such as one
based on Government Code section 418.176, the exception
from the Homeland Security Act. See TEX.R.APP. P. 60.3;
Low v. Henry, 221 S.W.3d 609, 621 (Tex.2007) (remanding
to allow the parties to present evidence responsive to [the
Court's] new guidelines).
On remand, the trial court should consider whether specific

information in the vouchers raises serious security concerns
and should be redacted. For example, in the sample submitted
in camera to the Court, one cannot only identify at which
specific hotels the Governor's security detail stayed and,
inferentially, whether they stayed in the same hotel as the
Governor, but also when the members of the detail arrived and
departed from the foreign country. Other information in the
vouchers, such as total amounts spent for lodging or costs of
meals, may not present the same security concerns. The trial
court should carefully consider the varying levels of concern
for the different types of information in the vouchers.
IV. Conclusion
There is legitimate concern about fashioning a rule that could
allow those who want to do harm to government officials to
gain information to help them do so through the government's
own records. The rule the Court announces todaythat it can
fashion common law exceptions to disclosure of core public
informationis based on a genuine concern to protect our
public officials from physical harm and acts of terrorism,
but it thwarts the Legislature's clear statement that it, not
the courts, grants exceptions to the public's access to public
information. There are many statutes and rules that make
information expressly confidential, but the judge-made tort
of battery is not one, and we should guard against any court
creating reasons to keep government information from its
citizens. That policy-laden task, as emphasized in Industrial
Foundation, belongs to the Legislature. Because the Court's
rule opens the door to new judicially created exceptions to
disclosure of core public information and weakens what was
one of the strongest, most robust freedom of information
statutes in the nation, 6 I respectfully cannot join the Court's
opinion. But because I believe remand in the interest of justice
is appropriate, I join the Court's judgment.
Parallel Citations
Footnotes
Twice before, the Attorney General ruled that similar vouchers had to be disclosed. See Tex. Att'y Gen. OR20044723;
Tex. Att'y Gen. OR20020605. In those instances, however, the only exception DPS urged was Government Code section
552.108, which protects certain law enforcement information. See TEX. GOV'T CODE 552.108. Because he believed
Appendix 12
11
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
that exception to be discretionary, however, the Attorney General ruled that it could not be considered in conjunction with
section 552.022. See id. 552.022 (making certain information in vouchers public unless expressly confidential under
other law). DPS did not appeal either of those rulings.
The Freedom of Information Foundation of Texas submitted an amicus curiae brief in support of Cox and Hearst.
DPS no longer makes an argument based on a constitutional right of privacy.
The Legislature has since amended section 552.022(a). Effective September 1, 2011, core public information may be
withheld if it is confidential under either the PIA or other law. See Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, 2
(to be codified at TEX. GOV'T CODE 552.022(a)).
The parties do not address, and we do not decide, what voucher information is core and what is not.
The Legislature recently passed (although the Governor has not yet acted on) an amendment making vouchers
confidential, but that amendment would not apply to the vouchers at issue in this case. Act introduced May 31, 2011,
82nd Leg., 1st C. S., S.B. 1, art. 79A (to be codified at TEX. GOV'T CODE ch. 660).
United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
See, e.g., Operation RescueNat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 564 (Tex.1998)
(holding that protecting the health and safety of clinic patients is a compelling state interest justifying restrictions on the
demonstrations); see also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM
5 (stating that [a]n actor who intentionally causes physical harm is subject to liability for that harm); cf. G., C. & S.F. R'y
v. Styron, 2 Posey 275, 27677 (Tex. Comm'n App. 1883) (not precedential) (noting that the common law recognized
actions for injuries to the absolute rights of persons, as for assaults, batteries, wounding, injuries to the health, liberty
and reputation (quoting 1 CHITTY ON PLEADINGS 60)(emphasis added)).
W. PAGE KEETON, ET AL., THE LAW OF TORTS 41 (5th ed.1984).
See Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973) (holding, for the first time, that an unwarranted invasion of the
right of privacy constitutes a legal injury for which a remedy will be granted); Milner v. Red River Valley Pub. Co., 249
S.W.2d 227, 229 (Tex.Civ.App.-Dallas 1952, no writ) (refusing to allow recovery for violation of right of privacy, because
it was not ... recognized under the common law, as it existed when we adopted it, but noting that other actions (such
as penalties for libel and eavesdropping) provided some protection).
See, e.g., TEX. GOV'T CODE 552.108 (exempting information held by a law enforcement agency or prosecutor
if it involves a threat against a peace officer), 552.1176 (making home address, phone number, and social security
number of Texas lawyers and judges confidential), 552.119 (making photographs of peace officers confidential), 552.127
(excepting identifying information from participants in neighborhood crime watch organizations), 552.151 (excepting
certain information from disclosure if it would pose a substantial threat of physical harm); see also House Comm. on
State Affairs, Bill Analysis, Tex. H.B. 1237, 80th Leg., R.S. (2007) (noting that release of attorney personal information
may subject attorneys including current and former state and federal judges and prosecutors and their family members
to harm relating to their personal safety or possible identity theft); House Comm. on State Affairs, Bill Analysis, Tex. H.B.
273, 75th Leg., R.S. (1997) (commenting on threats and acts of retaliation against the members of [neighborhood crime
watch organizations]); House Comm. for Public Safety, Bill Analysis, Tex. H.B. 474, 70th Leg., R.S. (1987) (noting that
routine release of peace-officer photographs endangers officers' lives).
See, e.g., Tex. Att'y Gen. OR200803289 (holding that home address, telephone number, and other identifying
information relating to a Dallas Area Rapid Transit employee fell within the special circumstances exception, as
information was requested by a former employee who had threatened that individual); Tex. Att'y Gen. OR200801570
(determining that special circumstances justified withholding information, as city showed that former employee had
made threatening statements to city staff); Tex. Att'y Gen. OR200410845 (holding that special circumstances justified
withholding identity of alleged crime victim due to potential threat to victim's safety); Tex. Att'y Gen. ORD19770169
(holding that employees' addresses could be withheld because employees showed that their lives would be endangered
if the information was disclosed).
Tex. Att'y Gen. OR200410845, at 2.
As we noted in Industrial Foundation, the United States Supreme Court has also recognized a constitutional right of
personal privacy in certain situations. Indus. Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 679
(Tex.1976).
See also Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (describing battery as protecting [t]he
plaintiff's interest in the integrity of his person) (quoting PROSSER, LAW OF TORTS 32 (3d ed.1964)).
Appendix 12
12
17
18
19
1
See also Michael Hoefges et al., Privacy Rights Versus FOIA Disclosure Policy: The Uses and Effects Double Standard
in Access to PersonallyIdentifiable Information in Government Records, 12 WM. & MARY BILL RTS. J. 1, 7 (2003)
(noting that the [Supreme] Court considers derivative uses and secondary effects of disclosure on the privacy side as
a matter of course).
See Act of June 2, 2003, 78th Leg., R.S., ch. 1312, 3, 2003 Tex. Gen. Laws 4809, 4813.
Recently, the Texas Legislature amended section 552.022's expressly confidential under other law provision, and also
added specific exceptions in the PIA for certain confidential information. See generally Act of May 20, 2011, 82nd Leg.,
R.S. (to be codified at TEX. GOV'T CODE chs. 51, 552). After the effective date, core public information may be withheld
from disclosure if it is made confidential under this chapter or other law. Id. 2 (to be codified at TEX. GOV'T CODE
552.022). This amendment does not apply to the case at bar, because the statute's effective date is September 1,
2011. Id. 41.
This is essentially the limited exception under the federal Freedom of Information Act. See 5 U.S.C. 552(b)(3) (excluding
from FOIA's reach matters that are specifically exempted from disclosure by statute ... if that statute ... (i) requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular
criteria for withholding or refers to particular types of matters to be withheld; and specifically references 552(b), if passed
after 2009).
Parallel bills in the Texas House and Senate during the current legislative session attempted to specifically make a
voucher submitted or to be submitted under [Chapter 660 of the Government Code] confidential and may not be disclosed
under the PIA if the voucher was for expenses incurred in protecting an elected official or the official's family. H.B. 3131,
82nd Leg. R.S., 1 (introduced March 10, 2011); S.B.1923, 82nd Leg., R.S., 1 (introduced April 29, 2011). Neither
bill came to a vote before each bill's respective chamber during the regular session. During the special session in June
2011, Senate Bill 1 was amended to make vouchers or other reimbursement forms confidential for a period of eighteen
months following the date of travel if the reimbursement or travel expense incurred by a peace officer while assigned
to provide protection for an elected official of this state or a member of the elected official's family. S.B. 1, 82nd Leg.,
1st C.S., 79A.01 (introduced May 31, 2011). Following the eighteen-month period, the vouchers become subject to
disclosure under Chapter 552 and are not excepted from public disclosure or confidential under that chapter or other
law, with seven exceptions, including the personal safety exception. Id. During the eighteen-month period, agencies are
required to submit expense summaries providing specified, detailed information. Id. The Legislature has provided that
this Court will have original and exclusive mandamus jurisdiction over the construction, applicability, or constitutionality
of the amendment, and the amendment applies only to vouchers created on or after September 1, 2011. Id.; see also
id. 80. The Governor has not yet taken action on the bill.
Because the vouchers at issue in this case are not covered by the new section, its interpretation is not before this Court.
The original enacting legislation added the exception as section 552.151. See Act of May 31, 2009, 81st Leg., R.S.,
ch. 283, 4, 2009 Tex. Gen. Laws 742, 743 (codified at TEX. GOV'T CODE 552.151). This session, the Legislature
redesignated the section as section 552.152, effective September 1, 2011. See Act of May 5, 2011, 82nd Leg., R.S., S.B.
1303, 27.001(20). For the sake of clarity, this opinion will refer to the provision as presently in force, section 552.151.
Examples include trade secrets, privilege, public disclosure of private facts, and gag orders during trial. See In re Bass,
113 S.W.3d 735, 739 (Tex.2003) (defining trade secrets); RESTATEMENT (THIRD) OF UNFAIR COMPETITION 39,
40, 41 (similarly defining trade secrets and remedies available for protection of trade secrets); TEX.R. CIV. P. 193.3
(setting standards for asserting privileges in discovery); In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 22223
(Tex.2004) (per curiam) (providing for mandamus relief for erroneous rulings on privileged documents); Indus. Found. of
the S. v. Tex. Ind. Accident Bd., 540 S.W.2d 668, 68283 (Tex.1976) (plurality op.) (discussing the tort of public disclosure
of private facts); Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992) (discussing a court's authority to issue gag orders).
See City of Dallas, 304 S.W.3d at 395 n. 5 (Wainwright, J., dissenting) (citing 151 Cong. Rec. S152526 (Feb. 16, 2005)
(statement of Senator John Cornyn)).
End of Document
Appendix 12
13
C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (2007)

50 Tex. Sup. Ct. J. 949
231 S.W.3d 389

C.L. WESTBROOK, JR., Petitioner,
v.
Peggy Lee PENLEY, Respondent.
No. 040838. | Argued Sept. 26,
2006. | Decided June 29, 2007.
| Rehearing Denied Sept. 28, 2007.
Synopsis
Background: Former member of church brought action
against church, pastor, and three elders for defamation, breach
of fiduciary duty, intentional infliction of emotional distress,
invasion of privacy, and professional negligence, after pastor
published letter to congregation urging church members
to shun plaintiff for engaging in biblically inappropriate
extramarital sexual relationship, which relationship pastor
learned about when pastor, who was a licensed professional
marriage counselor, was providing counseling to plaintiff.
The 67th District Court, Tarrant County, Don J. Cosby, J.,
dismissed the claims for lack of subject matter jurisdiction.
Former member appealed decision as to pastor. The Ft. Worth
Court of Appeals, 146 S.W.3d 220, affirmed in part, reversed
in part, and remanded. Review was granted.
[Holding:] The Supreme Court, Harriet O'Neill, J., held that

professional negligence claim could not be isolated from
inherently religious church-disciplinary process in which the
disclosure to church elders occurred, and thus, Free Exercise
Clause precluded civil court from exercising subject-matter
jurisdiction over such claim.
James Roddy Tanner, J. Shelby Sharpe, Sharpe & Tillman,

P.C., Fort Worth, for Other.
Jerry D. Bullard, Adams, Lynch & Loftin, P.C., Bedford, TX,
Carl H. Esbeck, Columbia, MO, for Amicus Curiae.
Opinion
Justice O'NEILL delivered the opinion of the Court.
In this case, we must decide the constitutionally appropriate
role of civil courts in resolving tort actions that arise
from acts of church discipline. The defendant pastor in
this case, C.L. Buddy Westbrook, Jr., who is also a
licensed professional counselor, directed his congregation
to shun Peggy Lee Penley, a former parishioner, for
engaging in a biblically inappropriate relationship, which
the ecclesiastical disciplinary process outlined in the church's
constitution required him to do. Claiming Westbrook had
learned the disclosed information in a secular counseling
session, Penley filed this suit against him for professional
negligence.
For purposes of our review, we presume the counseling at
issue was purely secular in nature as Penley claims. Even
so, we cannot ignore Westbrook's role as Penley's pastor. In
his dual capacity, Westbrook owed Penley conflicting duties;
as Penley's counselor he owed her a duty of confidentiality,
and as her pastor he owed Penley and the church an
obligation to disclose *392 her conduct. We conclude
that parsing those roles for purposes of determining civil
liability in this case, where health or safety are not at
issue, would unconstitutionally entangle the court in matters
of church governance and impinge on the core religious
function of church discipline. Accordingly, we reverse the
court of appeals' judgment and dismiss the case for want of
jurisdiction.
Court of Appeals reversed; case dismissed.

I. Background
*391 J. Wade Birdwell, James G. Stouffer Jr., Wallach,
Andrews & Stouffer, P.C., Fort Worth, Kelly J. Shackelford,
Hiram S. Sasser III, Jonathan M. Saenz, Plano, for Petitioner.
Darrell L. Keith, Courtney Shannon Keith, Keith Law Firm,
P.C., Jeffrey H. Kobs, Kobs & Haney, P.C., Fort Worth, Kirk
L. Pittard, Leighton Durham III, Durham & Pittard, L.L.P.,
Dallas, for Respondent.
Penley experienced marital difficulties with her husband,

Benjamin Stone, and in August 1998 obtained counseling
services from Westbrook, a licensed professional marriage
counselor and her fellow parishioner at McKinney Memorial
Bible Church. This counseling took place in three sessions at
Westbrook's office and Penley paid for two or three of these
sessions. Westbrook also conducted two counseling sessions
with Stone in August 1998.
Appendix 13

50 Tex. Sup. Ct. J. 949
In October 1999, Westbrook and others, including Penley

and Stone, broke from their church and formed CrossLand
Community Bible Church (CrossLand). Westbrook was
elected CrossLand's pastor and also served as a church elder.
CrossLand, a Christ-centered church, operated according
to biblical principles and practices described in the church's
constitution and statement of faith. CrossLand requires all
membership applicants to affirm their willingness to abide
by the church's constitution, which contains the following
disciplinary policy:
We believe that one of the primary
responsibilities of the church is to
maintain the purity of the Body. We
are directed by God to be holy.
In recognition of the importance
of this obligation, the elders will
biblically and lovingly utilize every
appropriate means to restore members
who find themselves in patterns of
serious misconduct. When efforts
at restoration fail, the elders will
apply the Biblical teaching on
church discipline, which could include
revocation of membership, along with
an appropriate announcement made to
the membership (Matt 18:1517; I Cor
5:15; Gal 6:1, 2; 2 Thes 3:6).
The church's constitution provides that, if a member engages
in conduct that violates Biblical standards, or which is
detrimental to the ministry, unity, peace or purity of the
church, and the member is unrepentant, the elders will
follow our Lord's instructions from Matthew 18:1520. 1 If
the member remains unrepentant and chooses not to resign,
the constitution instructs the church authority to revoke
the parishioner's membership and announce the member's
removal to the congregation. The church's stated goal is to
encourage repentance and restoration of fellowship with the
Lord and His people.
Penley became a CrossLand member the same month
the church was formed in October 1999. In applying for
membership, Penley answered various inquiries contained
in a document titled CrossLand Community Bible Church
Questions for Membership. Her answers confirmed Penley's
agreement with a statement of the church's beliefs. In
response to a request to [a]ffirm your willingness to *393
abide by the constitution of this church, Penley responded,

[s]ure, I can abide by the church constitution ... willingly.
In July 2000, Penley separated from her husband. Thereafter,
Penley and Stone participated in a series of weekly counseling
sessions at Westbrook's home where couples from the church
discussed how to improve their marriages. According to
Penley, the Bible was not discussed in these sessions and she
considered them to be an extension of her prior professional
counseling relationship with Westbrook. Westbrook did not
charge for these sessions, and all of the couples who
participated were CrossLand members.
The marital counseling sessions proved to be unsuccessful,
and Penley decided that she would seek a divorce from Stone.
Around October 2000, Penley and Stone went to Westbrook's
home for what they thought would be another group session,
but Westbrook and his wife were the only ones there. During a
break, Penley spoke separately with Westbrook and informed
him that she had decided to divorce Stone. She also confided
that she had engaged in an extramarital sexual relationship.
According to Penley's pleadings, Westbrook counseled her
and recommended a family law attorney she could consult.
When Westbrook broached the topic of church discipline that
her extramarital relationship would require, Penley informed
him that she was resigning from CrossLand.
Thereafter, Westbrook and the church elders composed a
letter to the CrossLand congregation concerning Penley's
actions, which they published to the membership on
November 7, 2000. The letter described the three-step
disciplinary process by which CrossLand members were
bound as follows:
The process first involves one individual going to the
brother or sister in sin. If the one caught in sin
listens, meaning listens to the Lord and repents (changes
direction), then the process is completeyou have won
your brother or sister.
However, if the one in sin chooses not to listen, and
continues in this pattern, the instructions are clear. A small
group of two or three or more are to go back with you to
the one in sin. We believe this group should be comprised
of individuals who are mature and godly believers and who
know and love the one in sin. If the one in sin listens,
then the process is completeagain, you have won your
brother or sister.
Appendix 13

50 Tex. Sup. Ct. J. 949
If the one in sin refuses to listen to this group of two or

three, then the instructions are to tell it to the church. If
the one in sin now listens, the process is completeand
we have won our brother or sister.
Notice, however, if he refuses to listen even to the church,
let him be to you as a Gentile and a tax-gatherer.' As
somewhat of an oversimplification, this means to treat the
one in sin as an outsider. Through their continuing sin, they
forfeit their membership in the church, and the members of
the church are to break fellowship with them.
The letter explained to the congregation that Penley intended
to divorce her husband, there was no biblical basis for the
divorce, she had engaged in a biblically inappropriate
relationship with another man, and she had rejected efforts
to bring her to repentance and reconciliation. Describing
the disciplinary process as one of tough love, the letter
encouraged the congregation to break fellowship with
Penley in order to obtain her repentance and restoration to the
church body. The letter admonished the congregation to treat
the matter as a members-only issue, not to be shared with
those outside [the congregation].
*394 In November 2001, Penley sued Westbrook,
CrossLand and the church elders alleging causes of action
for defamation, negligence, breach of fiduciary duty, and
intentional infliction of emotional distress. In response to
her claims, Westbrook filed a plea challenging the court's
jurisdiction, contending the suit involved an ecclesiastical
dispute concerning a church disciplinary matter, which
the First and Fourteenth Amendments to the United States
Constitution precluded the trial court from adjudicating. The
church and the elders filed a similar motion to dismiss. The
trial court granted the defendants' motions and dismissed the
case. Penley appealed the trial court's order, but subsequently
dismissed her appeal as to all defendants except Westbrook.
The court of appeals affirmed the trial court's dismissal of all
claims against Westbrook except for professional negligence,
which it held concerned Westbrook's role as Penley's secular
professional counselor and did not invoke First Amendment
concerns. 146 S.W.3d 220, 233. We granted Westbrook's
petition for review to examine the trial court's jurisdiction
over Penley's professional-negligence claim in light of the
First Amendment's religion clauses. 2
II. Review Standard
[1]
[2]
[3]
[4] A plea questioning the trial court's
subject-matter jurisdiction raises a question of law that
we review de novo. See Tex. Dep't of Parks and Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Lack of
jurisdiction may be raised by a plea to the jurisdiction when
religious-liberty grounds form the basis for the jurisdictional
challenge. 3 See Tilton, 925 S.W.2d at 682; Green v. United
Pentecostal Church Int'l, 899 S.W.2d 28, 30 (Tex.App.Austin 1995, writ denied). We focus first on the plaintiff's
petition to determine whether the facts pled affirmatively
demonstrate that subject-matter jurisdiction *395 exists.
Miranda, 133 S.W.3d at 226. If the pleadings are insufficient
to establish jurisdiction but do not affirmatively demonstrate
an incurable defect, the plaintiff should be afforded the
opportunity to replead. Id. at 22627. A plea should not be
granted if a fact issue is presented as to the court's jurisdiction,
but if the pleadings affirmatively demonstrate an incurable
jurisdictional defect, then the plea to the jurisdiction must be
granted. Id. at 22728.
III. Discussion
A. The First Amendment Religion Clauses
[5] [6] [7] The First Amendment to the United States
Constitution, applicable to the states through the Fourteenth
Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60
S.Ct. 900, 84 L.Ed. 1213 (1940), provides that Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.... U.S. CONST.
AMEND. I. This seemingly straightforward pronouncement
has generated volumes of interpretational jurisprudence.
At its core, the First Amendment recognizes two spheres
of sovereignty when deciding matters of government and
religion. The religion clauses are designed to prevent, as far
as possible, the intrusion of either [religion or government]
into the precincts of the other, Lemon v. Kurtzman, 403 U.S.
602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and are
premised on the notion that both religion and government
can best work to achieve their lofty aims if each is left free
from the other within its respective sphere. Aguilar v.
Felton, 473 U.S. 402, 410, 105 S.Ct. 3232, 87 L.Ed.2d 290
(1985) (quoting McCollum v. Bd. of Ed., 333 U.S. 203, 212,
68 S.Ct. 461, 92 L.Ed. 649 (1948)). The First Amendment's
limitations on government extend to its judicial as well as its
legislative branch. See Kreshik v. Saint Nicholas Cathedral,
363 U.S. 190, 191, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960).
Appendix 13

50 Tex. Sup. Ct. J. 949
[8] Government action may burden the free exercise of

religion in two quite different ways: by interfering with
an individual's observance or practice of a particular faith,
see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d
472 (1993), and by encroaching on the church's ability to
manage its internal affairs, see, e.g., Kedroff v. St. Nicholas
Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120
(1952). See EEOC v. Catholic Univ. of Am., 83 F.3d 455, 460
(D.C.Cir.1996). Westbrook and Penley appear to agree that
the church-autonomy cases govern the analysis in this case,
but they disagree over their effect.
B. The Parties' Contentions

Westbrook contends Penley's suit encroaches upon the
autonomy of churches to decide matters of internal church
discipline and governance. He acknowledges that there
are exceptions to the concept of church autonomy, but
claims they should be narrowly drawn by allowing judicial
interference in church disciplinary matters only when a claim
arises from a purely secular act. Westbrook describes actions
that are purely secular in nature as those that are clearly
nonreligious in motivation, like intentional torts or sexual
misconduct. According to Westbrook, if there is any doubt as
to the secular or religious nature of a particular action, courts
should proceed no further. Any less deferential standard,
Westbrook claims, would require a case-by-case analysis
that would in itself excessively entangle the courts with
religion and infringe upon the church's authority. In this case,
Westbrook asserts, once Penley admitted that she looked to
him as both a counselor and a pastor, the *396 trial court
was precluded from adjudicating her claim. The rationale,
Westbrook explains, is to avoid courts having to determine
which acts are done in a secular role and which are done in an
ecclesiastical capacity, particularly when there is such a blend
of roles, as here, that makes it impossible to perceive where
one ends and the other begins.
Penley, on the other hand, argues that the doctrine of church
autonomy protects religious relationships by preventing
judicial resolution of ecclesiastical disputes that turn on
matters of religious doctrine or practice. This protection, she
argues, does not shield a licensed professional counselor from
liability that arises from a secular counseling relationship
simply because scripture might occasionally be discussed.
According to Penley, the First Amendment does not preclude
judicial review of claims that do not derive from or depend

upon religious doctrine. Penley contends that categorically
excluding religious relationships from judicial scrutiny would
necessarily extend constitutional protection to the secular
components of such relationships and place religious leaders
in preferred positions in our society.
C. Civil Courts and Church Autonomy

We agree that the First Amendment does not necessarily bar
all claims that may touch upon religious conduct. See Tilton,
925 S.W.2d at 677. But in order to gauge the constitutional
validity of a particular civil action, we must first identify
the nature of the constitutional interest at stake. When a
pastor who holds a professional counseling license engages
in marital counseling with a parishioner, the line between
the secular and the religious may be difficult to draw. 4
In that instance, secular rules that govern the professional
relationship may conflict with or impinge upon religious
tenets or standards of conduct to which the church and its
members have voluntarily bound themselves. Deciding which
should yield requires a careful analysis of the respective
interests sought to be protected.
The interest that Penley asserts concerns the confidentiality
that protects communications between a licensed professional
counselor and a client. See 22 TEX. ADMIN. CODEE
681.41(x). It is Westbrook's breach of this secular duty
to maintain confidentiality that Penley contends caused
her injury. Unlike resolving Penley's originally asserted
but later abandoned defamation claim, which would have
required the court to delve into the religious question of
whether Westbrook's statement about the biblical impropriety
of Penley's behavior was true or false, deciding whether
Westbrook breached a secular duty of confidentiality as
a licensed professional counselor would not, according to
Penley, require resolution of a theological matter. Because her
claim does not require *397 the court to resolve a religious
question, Penley maintains her professional negligence action
does not run afoul of the First Amendment.
[9] [10] But Penley's argument goes to only one area of
constitutional concern and ignores another. While it might
be theoretically true that a court could decide whether
Westbrook breached a secular duty of confidentiality without
having to resolve a theological question, that doesn't answer
whether its doing so would unconstitutionally impede the
church's authority to manage its own affairs. Churches have
Appendix 13

50 Tex. Sup. Ct. J. 949
a fundamental right to decide for themselves, free from state

interference, matters of church government as well as those
of faith and doctrine. Kedroff, 344 U.S. at 116, 73 S.Ct. 143;
see Catholic Univ. of Am., 83 F.3d at 462. It is a core tenet of
First Amendment jurisprudence that, in resolving civil claims,
courts must be careful not to intrude upon internal matters of
church governance:
The right to organize voluntary
religious associations to assist in
the expression and dissemination
of any religious doctrine and to
create tribunals for the decision
of controverted questions of faith
within the association, and for the
ecclesiastical government of all the
individual members, congregations,
and officers within the general
association, is unquestioned. All who
unite themselves to such a body
do so with an implied consent to
this government, and are bound to
submit to it. But it would be a vain
consent and would lead to the total
subversion of such religious bodies,
if any one aggrieved by one of their
decisions could appeal to the secular
courts and have them reversed. It
is of the essence of these religious
unions, and of their right to establish
tribunals for the decision of questions
arising among themselves, that those
decisions should be binding in all cases
of ecclesiastical cognizance, subject
only to such appeals as the organism
itself provides for.
Watson v. Jones, 80 U.S. (13 Wall.) 679, 72829, 20
L.Ed. 666 (1872). 5 Accordingly, the autonomy of a church
in managing its affairs and deciding matters of church
discipline ... or the conformity of the members of the church
to the standard of morals required of them has long been
afforded broad constitutional protection. Id. at 733. 6
[11] This Court, too, has long recognized a structural
restraint on the constitutional *398 power of civil courts
to regulate matters of religion in general, Brown v. Clark,
102 Tex. 323, 116 S.W. 360, 363 (Tex.1909), and of church
discipline in particular, Minton v. Leavell, 297 S.W. 615, 621
22 (Tex.Civ.App.-Galveston 1927, writ ref'd). The Minton

court cogently explained why courts must decline jurisdiction
over disputes concerning church membership:
It seems to be settled law in this land of religious liberty that
the civil courts have no power or jurisdiction to determine
the regularity or validity of the judgment of a church
tribunal expelling a member from further communion and
fellowship in the church. Membership in a church creates
a different relationship from that which exists in other
voluntary societies formed for business, social, literary, or
charitable purposes.
Church relationship stands upon a different and higher
plane, and the right of a church to decide for itself whom
it may admit into fellowship or who shall be expelled or
excluded from its fold cannot be questioned by the courts,
when no civil or property rights are involved.
... If the courts assume jurisdiction to question the validity
of a judgment of a church court upon a question of this
character, the churches would be deprived of the right of
construing and administering their church laws....
Minton, 297 S.W. at 62122; see also Brown, 116 S.W. at
363 ([W]henever the questions of discipline or of faith or
ecclesiastical rule, custom or law have been decided by the
highest of these church judicatories to which the matter has
been carried, the legal tribunals must accept as final, and as
binding on them in their application to the case before them.)
(quoting Watson, 80 U.S. (13 Wall.) at 727).
More recently, in Williams v. Gleason, the court of appeals
declined jurisdiction over parishioners' tort claims against
church members who participated in the church disciplinary
process, finding that each claim implicates an ecclesiastical
matter, namely their subjection to the church's discipline.
26 S.W.3d 54, 59 (Tex. App.-Houston [14th Dist.] 2000,
pet. denied), cert. denied, 533 U.S. 902, 121 S.Ct. 2242,
150 L.Ed.2d 231 (2001). Disgruntled parishioners cannot
circumvent ecclesiastical immunity by suing church members
rather than the religious body itself, the court stated, else such
immunity would be an empty protection and there would
be an inappropriate chilling effect on the ability of churches to
discipline their members. Id.; see also Libhart v. Copeland,
949 S.W.2d 783, 793 (Tex.App.-Waco 1997, no pet.); Tran
v. Fiorenza, 934 S.W.2d 740, 743 (Tex.App.-Houston [1st
Dist.] 1996, no pet.).
Appendix 13

50 Tex. Sup. Ct. J. 949
D. The NeutralPrinciples Exception

[12] The Supreme Court has recognized an exception to
the doctrine of church autonomy when neutral principles
of law may be applied to resolve disputes over ownership
of church property. These exceptions, though, have been
narrowly drawn for reasons aptly expressed by the Supreme
Court in Watson over a century ago, and more recently in
Milivojevich, 426 U.S. at 709, 96 S.Ct. 2372, and Jones
v. Wolf, 443 U.S. 595, 60305, 99 S.Ct. 3020, 61 L.Ed.2d
775 (1979). If civil courts undertake to resolve essentially
religious controversies, the hazards are ever present of
inhibiting the free development of religious doctrine and of
implicating secular interests in matters of purely ecclesiastical
concern.... Milivojevich, 426 U.S. at 710, 96 S.Ct. 2372
(quoting Presbyterian Church in the United States v. Mary
Elizabeth Blue Hull Mem'l Presbyterian *399 Church, 393
U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969)).
60205, 99 S.Ct. 3020. Called upon to decide which faction

of the formerly united church congregation was entitled to
possession of a specific parcel of land, the Court stated that
civil courts have general authority to resolve such questions
given the obvious and legitimate interest in the peaceful
resolution of property disputes, and in providing a civil forum
where the ownership of church property can be determined
conclusively. Id. at 602, 99 S.Ct. 3020. Even so, the Court
emphasized that the First Amendment severely circumscribes
the role civil courts may play in resolving such disputes; if
interpretation of the instruments of ownership would require
the court's resolution of a religious controversy, the court
must defer to ecclesiastical resolution of the doctrinal issue.
Id. at 604, 99 S.Ct. 3020.
[13] Milivojevich involved an intra-church dispute over

control of the property and assets of the Serbian Eastern
Orthodox Diocese for the United States and Canada.
Milivojevich, 426 U.S. at 69899, 96 S.Ct. 2372. The
Supreme Court rejected the Illinois Supreme Court's
purported reliance on neutral principles of law in its holding
that the Diocesan reorganization and Milivojevich's removal
as Bishop were invalid, and outlined the broad autonomy our
Constitution affords churches in deciding matters that touch
upon religious doctrine. See id. at 72026, 96 S.Ct. 2372.
Emphasizing that the First Amendment severely limits the
role of civil courts in resolving religious controversies that
incidentally affect civil rights, id. at 711, 96 S.Ct. 2372, the
Court mandated judicial deference to the church if ownership
determinations involve underlying questions of religious
doctrine. Id. at 70910, 96 S.Ct. 2372 (citing Presbyterian
Church, 393 U.S. at 449, 89 S.Ct. 601). Importantly, the
Court noted that the principle of judicial deference is not
limited to disputes over church property, but applies with
equal force to church disputes over church polity and church
administration. Id. at 710, 96 S.Ct. 2372.
Penley urges us to apply the neutral-principles approach to

her professional-negligence claim, contending her claim can
be resolved under neutral tort principles without resorting
to or infringing upon religious doctrine. But even if we
were to expand the neutral-principles approach beyond
the property-ownership context as Penley requests, we
disagree that free-exercise concerns would not be implicated.
A church's decision to discipline members for conduct
considered outside of the church's moral code is an inherently
religious function with which civil courts should not generally
interfere. See Watson, 80 U.S. (13 Wall.) at 727. Courts
have no jurisdiction to revise or question ordinary acts
of church discipline and cannot decide who ought to be
members of the church, nor whether the excommunicated
have been justly or unjustly, regularly or irregularly cut off
from the body of the church. Id. at 730 (quoting Shannon
v. Frost, 42 Ky. (3 B. Mon.) 253, 258 (1842)). This is
because the judicial eye cannot penetrate the veil of the
church for the forbidden purpose of vindicating the alleged
wrongs of excised members; when they became members
they did so upon the condition of continuing or not as they
*400 and their churches might determine, and they thereby
submit to the ecclesiastical power and cannot now invoke the
supervisory power of the civil tribunals. Id. at 731 (citing
Ferraria v. Vasconcelles, 23 Ill. 456, 461 (1860) (quoting
Frost, 42 Ky. (3 B. Mon.) at 259)).
[14] [15] The Supreme Court again addressed an intrachurch dispute over property ownership in Jones, 443 U.S.
595, 99 S.Ct. 3020, 61 L.Ed.2d 775. The Court held that
states may adopt neutral principles of law as a means of
adjudicating such disputes without running afoul of First
Amendment concerns, so long as resolution of ownership
entails no inquiry into religious doctrine. Jones, 443 U.S. at
Penley contends the primary focus of her complaint is not

the letter disseminated to the congregation or CrossLand's
disciplinary process, even though the damages she seeks
clearly appear to have arisen from those events. Rather,
Penley explains, her suit centers on Westbrook's initial
disclosure to the church elders of confidential information
obtained during the marital counseling sessions, which
Appendix 13

50 Tex. Sup. Ct. J. 949
she claims constituted a breach of professional counseling

standards. Because her primary focus is on Westbrook's
disclosure of her confidential information to others separate
and apart from the publication of the November 7 letter,
Penley contends her claims do not involve matters of
religious doctrine, practice, or church governance.
[16] It is true that Penley pins Westbrook's liability in this
case, at least in part, on his breach of a secular duty by
disclosing Penley's confidential information to the church
elders in the first instance. However, this disclosure cannot
be isolated from the church-disciplinary process in which
it occurred, nor can Westbrook's free-exercise challenge be
answered without examining what effect the imposition of
damages would have on the inherently religious function
of church discipline. Subjecting CrossLand's pastor to tort
liability for engaging in the disciplinary process that the
church requires would clearly have a chilling effect on
churches' ability to discipline members, Williams, 26 S.W.3d
at 59, and deprive churches of their right to construe and
administer church laws, Minton, 297 S.W. at 622. See Paul
v. Watchtower Bible & Tract Soc'y of N. Y., Inc., 819 F.2d
875, 881 (9th Cir.1987) (noting that imposing tort liability
for shunning on a church would in the long run have the
same effect as prohibiting the practice and would compel
the Church to abandon part of its religious teachings). In
sum, while the elements of Penley's professional-negligence
claim can be defined by neutral principles without regard to
religion, the application of those principles to impose civil
tort liability on Westbrook would impinge upon CrossLand's
ability to manage its internal affairs and hinder adherence to
the church disciplinary process that its constitution requires.
See Idleman, 75 IND. L.J. at 254 n. 96.
E. Discrimination and the Ministerial Exception

Cases involving claims of employment discrimination in
church-minister relations are closely analogous, where the
government's interest in eradicating discrimination collides
with the church's constitutional right to manage its internal
affairs free from government interference. See, e.g., EEOC v.
Catholic Univ. of Am., 83 F.3d at 460. In these circumstances,
courts have generally held that jurisdiction over a minister's
Title VII claims of sex- and race-based discrimination must
yield to First Amendment concerns when necessary to
preserve the church's autonomy to manage its internal affairs.
In Catholic University of America, for example, Sister

Elizabeth McConough, a nun in the Dominican Order,
alleged that the university had engaged in sex discrimination
and retaliatory conduct in violation of Title VII of the
Civil Rights Act of 1964 when it denied her tenure in its
Department of Canon Law. Catholic Univ. of Am., 83 F.3d
at 457. The Equal Employment Opportunity Commission
argued, as Penley does here, that the dispute could be
*401 resolved by applying neutral principles of law
without entangling the government in questions of religious
doctrine. Id. at 46566. The court disagreed, distinguishing
the neutral trust- and property-law principles that were
employed in Jones to determine ownership of land. Id. at 466.
Acknowledging that generally an assessment of scholarship
involves objective criteria independent of religious content,
the court determined that those evaluating McDonough's
publications were ultimately being asked to decide whether
she was qualified to teach in the name of the Church. Id.
Consequently, there was an inevitable risk that those who
assessed her scholarship would have to consider whether
her conclusions were in accord with what they believed the
Church ought to teach. Id. As the trial court noted after
attempting to decide the case applying neutral principles,
no expert testimony could effectively filter out the
religious elements from the secular ones sufficiently to
avoid unwholesome and impermissible entanglement with
religious concerns. Id. (quoting EEOC v. Catholic Univ.
of Am., 856 F.Supp. 1, 12 (D.D.C.1994)). Because resolving
McDonough's Title VII claims could interfere with the
church's ability to resolve matters of religion, the court held
it lacked jurisdiction. Id. at 467. 7
In Combs v. Central Texas Annual Conference of the United
Methodist Church, Reverend Combs appealed the dismissal
of her Title VII sex- and pregnancy-discrimination suit
against the church. 173 F.3d 343 (5th Cir.1999). The sole
issue before the Fifth Circuit was whether the district court
correctly determined that the First Amendment precluded it
from considering Combs's employment-discrimination case,
even when the church's challenged actions were not based on
religious doctrine. Id. at 345. Combs argued that the court
had subject-matter jurisdiction because, unlike in Catholic
University where the liability determination would have
required an evaluation of church doctrine, there would be
no such need in her case. Id. at 350. The court rejected
this argument, reiterating the First Amendment's two-fold
concern; that secular courts should not interpret religious
doctrine, nor should they intrude into church governance in
a manner *402 that would be inherently coercive, even
Appendix 13

50 Tex. Sup. Ct. J. 949
when the alleged discrimination is purely nondoctrinal. Id.

Penley's contention implicates the latter concern, which the
court in Combs found was enough to bar jurisdiction because
the congressional mandate to eliminate discrimination in the
work place must give way to the constitutional mandate to
preserve church autonomy. Id.
F. Penley's ProfessionalNegligence Claim

We conclude that the secular confidentiality interest Penley's
professional-negligence claim advances fails to override the
strong constitutional presumption that favors preserving the
church's interest in managing its affairs. Penley voluntarily
became a member of the church body and agreed to
abide by the church constitution; indeed, she expressed
that she did so willingly. That constitution outlined the
disciplinary process that would be followed if a member
engaged in conduct that the church considered inappropriate.
As CrossLand's and Penley's pastor, Westbrook assumed
an obligation to Penley and to the congregation to follow
the church's constitution. Although Penley contends pastoral
counseling is not at issue because she did not receive marital
counseling from Westbrook in his capacity as a member of
the clergy, the publication about which Penley complains was
made in the course of the church disciplinary process and
communicated by Westbrook pursuant to the requirements of
that process. And even though Penley's suit is now against
Westbrook and no longer the church, it is well-settled that
[t]he interaction between the church and its pastor is an
integral part of church government, Simpson, 494 F.2d at
493, and [t]he relationship between an organized church and
its ministers is its lifeblood. McClure, 460 F.2d at 558.
Even if Westbrook's dual roles as Penley's secular counselor
and her pastor could be distinguished, which is doubtful,
Westbrook could not adhere to the standards of one without
violating the requirements of the other. Any civil liability that
might attach for Westbrook's violation of a secular duty of
confidentiality in this context would in effect impose a fine
for his decision to follow the religious disciplinary procedures
that his role as pastor required and have a concomitant chilling
effect on churches' autonomy to manage their own affairs.
See, e.g., Watchtower Bible & Tract Soc'y., 819 F.2d at 881
(stating the burden of tort damages is direct ... [w]ere we
to permit recovery, the pressure to ... forego that practice
[would be] unmistakeable ) (quoting Thomas v. Review
Bd., 450 U.S. 707, 717, 101 S.Ct. 1425, 67 L.Ed.2d 624
(1981)). The result would be interference by the civil courts
in the relationship among CrossLand, its pastor, and the

church members, which the First Amendment prohibits. See,
e.g., Milivojevich, 426 U.S. at 717, 96 S.Ct. 2372 (stating
questions of church discipline and composition of the church
hierarchy are at the core of ecclesiastical concern).
We do not doubt that preserving client confidences revealed
in the context of a professional counseling relationship serves
an important public interest, as the duty the Legislature has
imposed on such professionals reflects. See 22 TEX. ADMIN.
CODEE 681.41(x). Maintaining patient confidentiality
ensures that individuals receive effective and competent
counseling when they need it. See Abrams v. Jones, 35
S.W.3d 620, 626 (Tex.2000) (citing R.K. v. Ramirez, 887
S.W.2d 836, 840 (Tex.1994) (stating that the basis for the
privilege is twofold: to encourage the full communication
necessary for effective treatment and to prevent unnecessary
disclosure of highly personal information)). But however
*403 highly we might rate the importance of that interest, it
is by no means absolute when impingement on free-exercise
rights results. See Wisconsin v. Yoder, 406 U.S. 205, 214, 92
S.Ct. 1526, 32 L.Ed.2d 15 (1972). The values that underlie the
constitutional interest in prohibiting judicial encroachment
upon a church's ability to manage its affairs and discipline
its members, who have voluntarily united themselves to the
church body and impliedly consented to be bound by its
standards, have been zealously protected. See Watson, 80
U.S. (13 Wall.) at 73334; see also Yoder, 406 U.S. at 214,
92 S.Ct. 1526. When presented with conflicting interests like
these, courts have generally held that a spirit of freedom for
religious organizations prevails, Kedroff, 344 U.S. at 116,
73 S.Ct. 143, even if that freedom comes at the expense of
other interests of high social importance. See Yoder, 406 U.S.
at 214, 92 S.Ct. 1526; see also Watchtower Bible & Tract
Soc'y, 819 F.2d at 883 (finding the practice of shunning not
to constitute a sufficient threat to the peace, safety, or morality
of the community as to warrant state intervention, and stating
[i]ntangible or emotional harms cannot ordinarily serve as a
basis for maintaining a tort cause of action against a church for
its practicesor against its members.); Simpson, 494 F.2d
at 493 (stating [o]nly on rare occasions where there existed a
compelling governmental interest in the regulation of public
health, safety, and general welfare have the courts ventured
into this protected area.); Dean v. Alford, 994 S.W.2d
392, 395 (Tex.App.-Fort Worth 1999, no pet.) (stating the
preservation of the free exercise of religion is deemed so
important a principle it overshadows the inequities which may
result from its liberal application).
Appendix 13

50 Tex. Sup. Ct. J. 949
Penley, citing Casa View Baptist Church, 134 F.3d 331,

contends members of the clergy enjoy no constitutional
protection for misconduct as professional marriage
counselors simply because they may occasionally discuss
scripture within the context of that relationship. In principle,
we agree. See Tilton, 925 S.W.2d at 677. But Sanders
involved an intentional tort that formed no part of the
pastor's or his church's religious beliefs or practices. 134
F.3d at 33637. In that case, Robyn Sanders and Lisa
Mullanix sued Shelby Baucum, a minister at Casa View
Baptist Church, for malpractice and breach of fiduciary
duties as a marriage counselor by, among other things,
encouraging and consummating a sexual relationship with
each of them. Id. at 333. Baucum argued that his secular
misconduct was not actionable because it occurred within
two inherently ecclesiastical, rather than purely secular,
counseling relationships. Id. at 335. The court noted that the
First Amendment does not categorically insulate religious
relationships from judicial scrutiny because to do so would
impermissibly extend constitutional protection to the secular
components of these relationships and place religious leaders
in a preferred position in our society. Id. at 33536. The
court held that the First Amendment does not require
a minister's relationship with a parishioner to be purely
secular in order for a court to review the propriety of
the conduct that occurs within that relationship; rather, the
First Amendment protects religious relationships between a
minister and parishioner primarily by preventing the judicial
resolution of ecclesiastical disputes that turn on matters of
religious doctrine or practice. Id. at 336. The court stated that
to invoke constitutional protection for conduct that occurred
within the counseling relationship, Baucum must assert that
the specific conduct allegedly constituting a breach of his
professional and fiduciary duties was rooted in religious
belief. Id. at 338. Noting the *404 obvious truth that
Baucum's actions could not be rooted in the church's religious
beliefs and practices, the court held that Baucum could not
hide behind First Amendment protections. Id.
In Destefano v. Grabrian, the Supreme Court of Colorado
was similarly presented with conduct that occurred in the
context of a counseling relationship between a member of
the clergy and a congregant. 763 P.2d at 278. Robert and
Edna Destefano sought marriage counseling from Grabrian,
a Catholic priest for their diocese. Id. During the course of
their counseling relationship, Grabrian developed a sexual
relationship with Edna. Id. When the Destefanos filed suit
for damages resulting from the sexual relationship Grabrian
allegedly induced Edna into, Grabrian and the diocese
contended the claims were constitutionally barred because a

priest's performance of pastoral duties, including sacramental
counseling of parishioners, is a matter of ecclesiastical
concern. Id. at 283. The court noted that, [i]f the alleged
conduct of Grabrian was dictated by his sincerely held
religious beliefs or was consistent with the practice of his
religion, we would have to resolve a difficult first amendment
issue. Id. at 284. But the court held that the conduct in issue
clearly fell outside of the beliefs and doctrine of Grabrian's
religion and was not entitled to constitutional protection. Id.
In the present case, Penley does not question that
Westbrook's decision to reveal what she considered
confidential information to the church elders was mandated
by church doctrine and motivated by Westbrook's religious
beliefs. Neither was his revelation an intentional tort that
endangered Penley's or the public's health or safety. See
Watchtower Bible & Tract Soc'y, 819 F.2d at 883 (stating the
intangible or emotional harms that plaintiff suffered as a
result of her shunning are clearly not of the type that would
justify the imposition of tort liability for religious conduct.
No physical assault or battery occurred). Accordingly,
Penley's claims are distinguishable from those asserted in
Sanders and other cases that involve sexual assault of
parishioners occurring in the context of what purports to be
pastoral counseling. See also Strock v. Pressnell, 38 Ohio
St.3d 207, 527 N.E.2d 1235, 1238 (Ohio 1988) (plaintiff
alleged his minister engaged in sexual relations with his
wife in the course of providing the couple with marriage
counseling); F.G. v. MacDonell, 150 N.J. 550, 696 A.2d
697, 699 (N.J.1997) (parishioner sued for breach of fiduciary
duty arising out of sexual contact in a pastoral-counseling
relationship with her rector).
Penley's petition implies that her resignation from the church
after she revealed confidences to Westbrook precludes any
argument that Westbrook was performing a pastoral function
in disseminating confidential information to the church.
But clearly Westbrook's actions were grounded in religious
doctrine. Westbrook's report to the church elders was an
integral part of the church's three-step disciplinary process as
described in CrossLand's letter to the congregation: If the
one in sin refuses to listen ... then the instructions are to
tell it to the church. The letter itself was disseminated to
the congregation as the final step in the process: Through
their continuing sin, they forfeit their membership in the
church, and the members of the church are to break fellowship
with them. Penley's voluntary forfeiture of her membership
did not, in CrossLand's or Westbrook's view, forestall
Appendix 13

50 Tex. Sup. Ct. J. 949
the church's duty under its constitution to tell it to the

church and admonish church members to break fellowship
with [Penley]. Their decision to so proceed was based
on their interpretation of Matthew 18:1520, an inherently
ecclesiastical matter. We hold *405 that court interference
with that decision through imposition of tort liability in
this case would impinge upon matters of church governance
in violation of the First Amendment. See Milivojevich,
426 U.S. at 713, 96 S.Ct. 2372 (noting that an inquiry
into whether the church complied with church laws and
regulations is prohibited by the First Amendment); see also
United Methodist Church, Baltimore Annual Conference.
v. White, 571 A.2d 790, 794 (D.C.1990) (stating secular
evaluation of the procedures that ecclesiastical or cannon
law requires the church to follow is precisely the type
of inquiry the First Amendment prohibits); Minker, 894
F.2d at 135859 (holding civil courts lack jurisdiction to
interpret provisions of the United Methodist Church's Book
of Discipline governing pastoral appointments); Hafner, 616
F.Supp. at 73739 (dismissing pastor's suit for alleged denial
of benefits based on interpretation of the church synod
constitution).
G. Penley's Pleadings
subject-matter jurisdiction exists in this case. See Miranda,

133 S.W.3d at 226. If the pleadings affirmatively negate
the existence of jurisdiction, a plea to the jurisdiction must
be granted and repleading is not allowed. Id. at 227. In
determining whether subject-matter jurisdiction exists, courts
must look to the substance and effect of a plaintiff's
complaint to determine its ecclesiastical implication, not
its emblemata. Tran v. Fiorenza, 934 S.W.2d 740, 743
(Tex.App.-Houston [1st Dist.] 1996, no pet.) (citing Green
v. United Pentecostal Church Int'l, 899 S.W.2d 28, 30
(Tex.App.-Austin 1995, pet. denied) and Natal v. Christian
& Missionary Alliance, 878 F.2d 1575, 1577 (1st Cir.1989)).
Here, it is clear from Penley's Second Amended Original
Petition that her professional-negligence claim against
Westbrook unconstitutionally impinges upon internal matters
of church governance in violation of the First Amendment.
Because Penley's pleading affirmatively negates the court's
subject-matter jurisdiction, the trial court properly dismissed
the case.
***
Accordingly, we reverse the court of appeals' judgment and
dismiss the case for want of subject-matter jurisdiction.
[17] [18] Westbrook's plea to the jurisdiction challenges

Parallel Citations
Penley's pleadings and not the existence of jurisdictional
facts. Accordingly, we construe those pleadings in Penley's
50 Tex. Sup. Ct. J. 949
favor, taking as true the facts pled to determine whether
Footnotes
2
3
Matthew 18 states:
If your brother sins, go and show him his fault in private; if he listens to you, you have won your brother. But if he
does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may
be confirmed. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let
him be to you as a Gentile and a tax collector.
THE HOLY BIBLE, Matthew 18:1517 (New American Standard Bible).
The National Association of Evangelicals, the Southwestern Baptist Theological Seminary, and Dallas Theological
Seminary submitted amicus curiae briefs in support of Westbrook's petition.
Most courts agree that the general prohibition on the adjudication of religious questions, once triggered, precludes further
adjudication of the issue in question. Scott C. Idleman, Tort Liability, Religious Entities, and the Decline of Constitutional
Protection, 75 IND. L.J. 219, 225 (2000). However, there is some disagreement as to the prohibition's precise legal
operation. Id. A few courts conceptualize the general prohibition as a question of justiciability. See, e.g., Najafi v. INS, 104
F.3d 943, 949 (7th Cir.1997) (stating true belief is not readily justiciable); Nayak v. MCA, Inc., 911 F.2d 1082, 1083 (5th
Cir.1990) (stating the correct interpretation of the life of Christ ... is not a justiciable question before a federal court).
Some treat the matter as an affirmative defense to liability. See In re: Roman Catholic Archbishop of Portland in Or.,
335 B.R. 842, 849, 853 (Bankr.Or.2005) (granting summary judgment on affirmative defense of lack of subject-matter
jurisdiction); Brazauskas v. Fort WayneSouth Bend Diocese, Inc., 796 N.E.2d 286, 290 (Ind.2003) (stating pleading an
Appendix 13
10

50 Tex. Sup. Ct. J. 949
affirmative defense like the Free Exercise Clause may under certain facts entitle a party to summary judgment). But the
majority of courts broadly conceptualize the prohibition as a subject-matter bar to jurisdiction. See, e.g., Tilton v. Marshall,
925 S.W.2d 672, 682 (Tex.1996) (holding trial court abused its discretion in refusing to dismiss plaintiffs' intentional
infliction of emotional distress and related conspiracy claims and prohibiting court from exercising jurisdiction over them
except to dismiss); Bell v. Presbyterian Church, 126 F.3d 328, 33033 (4th Cir.1997) (affirming dismissal for lack of
subject-matter jurisdiction under First Amendment); Klagsbrun v. Va'ad Harabonim of Greater Monsey, 53 F.Supp.2d
732, 736 (dismissing for lack of subject-matter jurisdiction under Establishment Clause); Young v. N. Ill. Conference
of United Methodist Church, 21 F.3d 184, 18588 (7th Cir.1994) (holding First Amendment precluded subject-matter
jurisdiction over Title VII suit challenging church hiring procedures).
See Destefano v. Grabrian, 763 P.2d 275, 285 n. 10 (Colo.1988) ( Family counseling and psychological counseling
are two notable areas in which there is substantial overlap between the secular and religious aspects of a spiritual
counselor's activities. ) (quoting Note, Clergy Malpractice: Taking Spiritual Counseling Conflicts Beyond Intentional Tort
Analysis, 19 RUTGERS L.J. 419, 437 (1988)), and citing Comment, Made Out of Whole Cloth? A Constitutional Analysis
of the Clergy Malpractice Concept, 19 CAL. W.L.REV. 507, 516 (1983) (noting that pastoral counseling is a religious,
not secular, activity in which [i]t is impossible to separate the cure of the minds' from the cure of the souls' ) (quoting
S. Ericsson, Clergyman Malpractice: Ramifications of a New Theory, 16 VAL. U.L.REV.. 163, 166 (1981)); Comment,
Clergy Malpractice: Making Clergy Accountable to a Lower Power, 14 PEPPERDINE L.REV. 137, 139 (1986) (While
some degree of overlap and similarity may exist, the religious counselor remains distinct and unique from his secular
counterpart, approaching therapy from an entirely different perspective.).
Although Watson was decided before application of the Fourteenth Amendment to state action and thus turned on general
federal law, it nevertheless delineated the limited role civil courts may constitutionally play in resolving controversies that
touch upon religion. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 49 L.Ed.2d
151 (1976).
Courts have grounded the doctrine of church autonomy in different aspects of the First Amendment, some looking to
the Free Exercise Clause, some to the Establishment Clause, some to both, and others to neither in particular. See
Idleman, 75 IND. L.J. at 22325; see also Bollard v. Cal. Province of the Soc'y of Jesus, 211 F.3d 1331, 1332 (9th
Cir.2000), denying reh'g en banc (Wardlaw, J., dissenting) (Though the concept originated through application of the
Free Exercise Clause, the Supreme Court has held that the Establishment Clause also protects church autonomy in
internal religious matters.); see generally Douglas Laycock, Towards a General Theory of the Religion Clauses: The
Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L.REV.. 1373 (1981) (positing that Free
Exercise Clause protections against burdens or restrictions on religion more appropriately address church autonomy
concerns than the Establishment Clause, which prohibits government sponsorship of religion). Because this case does
not raise the question of government-sponsored religion, we ground our analysis in the Free Exercise Clause.
See also Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 47071 (8th Cir.1993) (holding minister's claim that
the Synod violated its bylaws by removing his name from list of eligible ministers not justiciable by secular courts);
Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 135658 (D.C.Cir.1990) (holding the
application of age-discrimination law in the minister's lawsuit against his church violative of the Free Exercise Clause);
Simpson v. Wells Lamont Corp., 494 F.2d 490, 49395 (5th Cir.1974) (holding application of Civil Rights Act to pastor's
claim of racial discrimination would encroach upon the church's right to be free from secular interference and to decide
for themselves matters of church government); McClure v. Salvation Army, 460 F.2d 553, 56061 (5th Cir.1972) (holding
application of Title VII to the employment relationship between the Salvation Army and its ordained minister would involve
a review that would cause improper state intrusion on matters of church governance); cf. Scotts African Union Methodist
Protestant Church v. Conference of African Union First Colored Methodist Protestant Church, 98 F.3d 78, 9496 (3rd
Cir.1996) (applying neutral-principles approach because aspects of the ownership determination that might touch on the
church-governance sphere were irrelevant to the ultimate ownership question); Church of God in Christ, Inc. v. Graham,
54 F.3d 522, 52526 (8th Cir.1995) (applying neutral legal principles to the property dispute because ecclesiastical affairs
were not implicated); Sanders v. Casa View Baptist Church, 134 F.3d 331, 336 (5th Cir.1998), (acknowledging that
protecting relationships not purely secular in nature might foster development of important spiritual ties, but holding the
constitutional guarantee of religious freedom cannot be construed to protect secular beliefs and behavior, even when
they comprise part of an otherwise religious relationship between a minister and a member of his or her congregation).
End of Document
Appendix 13
11
552.001. Policy; Construction, TX GOVT 552.001
Vernon's Texas Statutes and Codes Annotated

Government Code (Refs & Annos)
Title 5. Open Government; Ethics (Refs & Annos)
Subtitle A. Open Government
Chapter 552. Public Information (Refs & Annos)
Subchapter A. General Provisions
V.T.C.A., Government Code 552.001
552.001. Policy; Construction
Currentness
(a) 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.
(b) This chapter shall be liberally construed in favor of granting a request for information.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993.
Notes of Decisions (48)

V. T. C. A., Government Code 552.001, TX GOVT 552.001
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document
Appendix 14
552.002. Definition of Public Information; Media Containing..., TX GOVT 552.002

Subchapter A. General Provisions
552.002. Definition of Public Information; Media Containing Public Information
Effective: September 1, 2013
Currentness
(a) In this chapter, public information means information that is written, produced, collected, assembled, or maintained under
a law or ordinance or in connection with the transaction of official business:
(1) by a governmental body;
(2) for a governmental body and the governmental body:
(A) owns the information;
(B) has a right of access to the information; or
(C) spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the
information; or
(3) by an individual officer or employee of a governmental body in the officer's or employee's official capacity and the
information pertains to official business of the governmental body .
(a-1) Information is in connection with the transaction of official business if the information is created by, transmitted to,
received by, or maintained by an officer or employee of the governmental body in the officer's or employee's official capacity,
or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains
to official business of the governmental body.
(a-2) The definition of public information provided by Subsection (a) applies to and includes any electronic communication
created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official
business.
(b) The media on which public information is recorded include:
Appendix 15
552.002. Definition of Public Information; Media Containing..., TX GOVT 552.002
(1) paper;
(2) film;
(3) a magnetic, optical, solid state, or other device that can store an electronic signal;
(4) tape;
(5) Mylar; and
(6) any physical material on which information may be recorded, including linen, silk, and vellum.
(c) The general forms in which the media containing public information exist include a book, paper, letter, document, e-mail,
Internet posting, text message, instant message, other electronic communication, printout, photograph, film, tape, microfiche,
microfilm, photostat, sound recording, map, and drawing and a voice, data, or video representation held in computer memory.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1035, 2, eff. Sept. 1,
1995; Acts 2013, 83rd Leg., ch. 1204 (S.B. 1368), 1, eff. Sept. 1, 2013.

End of Document
Appendix 15
552.021. Availability of Public Information, TX GOVT 552.021

Subchapter B. Right of Access to Public Information
552.021. Availability of Public Information
Currentness
Public information is available to the public at a minimum during the normal business hours of the governmental body.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1035, 2, eff. Sept.
1, 1995.

End of Document
Appendix 16
552.321. Suit for Writ of Mandamus, TX GOVT 552.321

Subchapter H. Civil Enforcement
552.321. Suit for Writ of Mandamus
Currentness
(a) A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information
available for public inspection if the governmental body refuses to request an attorney general's decision as provided by
Subchapter G 1 or refuses to supply public information or information that the attorney general has determined is public
information that is not excepted from disclosure under Subchapter C. 2
(b) A suit filed by a requestor under this section must be filed in a district court for the county in which the main offices of the
governmental body are located. A suit filed by the attorney general under this section must be filed in a district court of Travis
County, except that a suit against a municipality with a population of 100,000 or less must be filed in a district court for the
county in which the main offices of the municipality are located.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1035, 24, eff. Sept.
1, 1995; Acts 1999, 76th Leg., ch. 1319, 27, eff. Sept. 1, 1999.
Footnotes
V.T.C.A., Government Code 552.301 et seq.
1
2
End of Document
Appendix 17
552.324. Suit by Governmental Body, TX GOVT 552.324

552.324. Suit by Governmental Body
Currentness
(a) The only suit a governmental body may file seeking to withhold information from a requestor is a suit that:
(1) is filed in a Travis County district court against the attorney general in accordance with Section 552.325; and
(2) seeks declaratory relief from compliance with a decision by the attorney general issued under Subchapter G. 1
(b) The governmental body must bring the suit not later than the 30th calendar day after the date the governmental body
receives the decision of the attorney general determining that the requested information must be disclosed to the requestor. If the
governmental body does not bring suit within that period, the governmental body shall comply with the decision of the attorney
general. If a governmental body wishes to preserve an affirmative defense for its officer for public information as provided in
Section 552.353(b)(3), suit must be filed within the deadline provided in Section 552.353(b)(3).
Credits
Added by Acts 1995, 74th Leg., ch. 1035, 24, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 1319, 30, eff. Sept.
1, 1999; Acts 2009, 81st Leg., ch. 1377, 10, eff. Sept. 1, 2009.
Footnotes
1
End of Document
Appendix 18
552.325. Parties to Suit Seeking to Withhold Information, TX GOVT 552.325

552.325. Parties to Suit Seeking to Withhold Information
Currentness
(a) A governmental body, officer for public information, or other person or entity that files a suit seeking to withhold information
from a requestor may not file suit against the person requesting the information. The requestor is entitled to intervene in the suit.
(b) The governmental body, officer for public information, or other person or entity that files the suit shall demonstrate to the
court that the governmental body, officer for public information, or other person or entity made a timely good faith effort to
inform the requestor, by certified mail or by another written method of notice that requires the return of a receipt, of:
(1) the existence of the suit, including the subject matter and cause number of the suit and the court in which the suit is filed;
(2) the requestor's right to intervene in the suit or to choose to not participate in the suit;
(3) the fact that the suit is against the attorney general in Travis County district court; and
(4) the address and phone number of the office of the attorney general.
(c) If the attorney general enters into a proposed settlement that all or part of the information that is the subject of the suit should
be withheld, the attorney general shall notify the requestor of that decision and, if the requestor has not intervened in the suit,
of the requestor's right to intervene to contest the withholding. The attorney general shall notify the requestor:
(1) in the manner required by the Texas Rules of Civil Procedure, if the requestor has intervened in the suit; or
(2) by certified mail or by another written method of notice that requires the return of a receipt, if the requestor has not
intervened in the suit.
(d) The court shall allow the requestor a reasonable period to intervene after the attorney general attempts to give notice under
Subsection (c)(2).
Appendix 19
552.325. Parties to Suit Seeking to Withhold Information, TX GOVT 552.325
Credits
Added by Acts 1995, 74th Leg., ch. 1035, 24, eff. Sept. 1, 1995. Amended by Acts 2009, 81st Leg., ch. 1377, 11, eff.
Sept. 1, 2009.

End of Document
Appendix 19
201.006. Records to be Delivered to Successor in Office, TX LOCAL GOVT 201.006

Local Government Code (Refs & Annos)
Title 6. Records
Subtitle C. Records Provisions Applying to More than One Type of Local Government (Refs & Annos)
Chapter 201. General Provisions (Refs & Annos)
V.T.C.A., Local Government Code 201.006
201.006. Records to be Delivered to Successor in Office
Currentness
(a) A custodian of local government records shall, at the expiration of the custodian's term of office, appointment, or
employment, deliver to the custodian's successor, if there is one, all local government records in custody. If there is no successor,
the governing body shall determine which officer of the local government shall have custody.
(b) If the functions of an office of one local government are assumed by another local government, the governing bodies of the
two local governments shall determine in which local government custody of the records of the office shall be vested.
Credits
Amended by Acts 1989, 71st Leg., ch. 1248, 1, eff. Sept. 1, 1989.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
The revised law omits the source law reference to a county commissioners court for the reason stated by Revisor's
Note (1) to Section 201.003.
V. T. C. A., Local Government Code 201.006, TX LOCAL GOVT 201.006

End of Document
Appendix 20
192.7. Definitions, TX R RCP Rule 192.7
Vernon's Texas Rules Annotated

Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions
(Refs & Annos)
TX Rules of Civil Procedure, Rule 192.7
192.7. Definitions
Currentness
As used in these rules-(a) Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things,
requests for entry onto property, interrogatories, and requests for admission.
(b) Possession, Custody, or Control of an item means that the person either has physical possession of the item or has a right
to possession of the item that is equal or superior to the person who has physical possession of the item.
(c) A Testifying Expert is an expert who may be called to testify as an expert witness at trial.
(d) A Consulting Expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of
litigation or in preparation for trial, but who is not a testifying expert.
Credits
Aug. 5, 1998 and amended Nov. 9, 1998, eff. Jan. 1, 1999.

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.7, TX R RCP Rule 192.7
Current with amendments received through 3/15/2015
End of Document
Appendix 21
Senate Committee on
Open Government
Interim Report to the
83rd Legislature
December 2012
Appendix 22
Senator Rodney Ellis

Chair
The Texas Senate

Open Government Committee
Senator Wendy Davis

Vice Chair
Senator Kevin Eltife
Senator Florence Shapiro
Senator Jeff Wentworth
January 7, 2013
The Honorable David Dewhurst
Lieutenant Governor of the State of Texas
Members of the Texas Senate
Texas State Capitol
Austin, Texas 78701
Dear Governor Dewhurst and Members of the Texas Senate:
The Senate Committee on Open Government is pleased to submit its interim report for
consideration by the 83rd Texas Legislature.
Respectfully submitted,
Appendix 22
Acknowledgements
The Senate Committee on Open Government and the Committee Chairman would like to
recognize everyone who assisted with this report for their hard work and cooperation.
The Committee Chairman also would like to acknowledge the valuable assistance and expertise
of everyone who took the time to testify, submit written reports, or otherwise assist in the interim
study.
The Committee Chairman extends a special thanks to the Open Government staff for their hard
work in developing this report.
Appendix 22
Table of Contents
Interim Charges .............................................................................................................................1
Executive Summary of Recommendations ..................................................................................2
Report and Recommendations
Charge 1: Revisions to the Public Information Act ................................................................3
Background ..........................................................................................................................3
Discussion ............................................................................................................................5
Conclusions ..........................................................................................................................7
Summary Recommendations ................................................................................................7
Charge 2: Cybersecurity ............................................................................................................8
Background ..........................................................................................................................8
Discussion ............................................................................................................................8
Conclusions ........................................................................................................................10
Summary Recommendations ..............................................................................................10
Charge 3: Records Retention ..................................................................................................11
Background ........................................................................................................................11
Discussion ..........................................................................................................................12
Conclusions ........................................................................................................................14
Summary Recommendations ..............................................................................................14
Charge 4: Overly-Burdensome Open Records Requests......................................................15
Background ........................................................................................................................15
Discussion ..........................................................................................................................16
Conclusions .........................................................................................................................18
Summary Recommendations ................................................................................................18
Appendix 22
Interim Charges
Evaluate the need for revisions to the Public Information Act to address changes in the
performance of public functions and make recommendations for changes. Specifically,
consider the following:
o the use of new technologies and future technological advances as relates to the
creation of public information;
o the extent to which the Public Information Act impacts third-party contractors
with state and local government;
o the need to codify or clarify existing Attorney General Opinions.
Examine the effectiveness of security measures used to protect electronic information

held by state agencies and make recommendations for enhancing security, if needed.
Review record retention policies for state and local governments and make
recommendations for improvements to record retention schedules and policies, including
e-mail retention and archiving requirements. Consider the benefits and disadvantages of
creating a uniform record retention policy.
Study ways to define and address frivolous and/or overly-burdensome open records
requests. Include an analysis of appropriate cost recovery by governmental entities for
expenses and time related to responding to requests, while ensuring the public has
adequate access to public information.
Monitor the implementation of legislation addressed by the Senate Select Committee on

Open Government, 82nd Legislature, Regular and Called Sessions, and make
recommendations for any legislation needed to improve, enhance, and/or complete
implementation.
Appendix 22
Executive Summary of Recommendations

Interim Charge 1: Revisions to the Public Information Act
1. The Committee recommends the Legislature consider codifying existing Attorney
General Opinions related to the use of technology and official business conducted on
personal accounts in order to provide clarity and guidance regarding the Public
Information Act.
2. The Committee recommends the Legislature continue to monitor the extent to which the
Public Information Act impacts third-party contractors with state and local government.
Interim Charge 2: Cybersecurity
1. The Committee recommends the Legislature examine whether expanding the Department
of Information Resources' legislative authority would be an appropriate and cost-effective
means of reducing the number of data breaches.
2. The Committee recommends the Legislature continue to monitor the threat to Texas'
cypersecurity, particularly as it relates to confidential data held by state agencies.
Interim Charge 3: Records Retention
1. The Committee recommends the Legislature study the feasibility of creating a repository
for preserving electronic records at the Texas State Library and Archives Commission.
2. The Committee recommends the Legislature task the Texas State Library and Archives
Commission and the Department of Information Resources to work together to assist
state agencies and local governments with identifying archival technology and assist with
migration.
3. The Committee recommends the Legislature continue to study the issues surrounding
social media, email, public access to government records and records retention.
Interim Charge 4: Overly-Burdensome Open Records Requests
1. The Committee recommends governmental bodies consider reviewing their open records
requests to assess what content is frequently requested and currently not available on-line
and consider posting these documents on-line to reduce requests.
2. The Committee recommends the Legislature continue to study and monitor issues and
pending litigation surrounding open records requests.
Appendix 22
Senate Government Organization Committee Interim Charge #1

Charge
Evaluate the need for revisions to the Public Information Act to address changes in the
performance of public functions and make recommendations for changes. Specifically, consider
the following:
o the use of new technologies and future technological advances as relates to the
creation of public information;
o the extent to which the Public Information Act impacts third-party contractors
with state and local government;
o the need to codify or clarify existing Attorney General Opinions.
Background
The Texas Public Information Act (Act) was originally adopted in 1973 by the 63rd Legislature
in V.T.C.S article 6252-17a. In 1993, the Act was repealed and replaced by the Public
Information Act in the Texas Government Code, Chapter 552.
The Chapter was intended to "be liberally constructed in favor of granting a request for
information." 1 The preamble to the Act outlines the construction of the policy:
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.
All "governmental [bodies]" 2 are subject to the Act including:
i. a board, commission, department, committee, institution, agency, or office that is
within or is created by the executive or legislative branch of state government and
that is directed by one or more elected or appointed members;
ii.
a county commissioners court in the state;
iii. a municipal governing body in the state;
iv. a deliberative body that has rulemaking or quasi-judicial power and that is
classified as a department, agency, or political subdivision of a county or
municipality;
v.
a school board district board of trustees;
vi. a county board of school trustees;
1
2
Texas Government Code Chapter 552, Section 552.001

Texas Government Code Chapter 552, Section 552.003(1)(A)
Appendix 22
vii.
viii.
ix.
x.
xi.
xii.
a county board of education;

the governing board of a special district;
the governing body of a nonprofit corporation organized under Chapter 67, Water
Code, that provides a water supply or wastewater service, or both, and is exempt
from ad valorem taxation under Section 11.30, Tax Code;
a local workforce development board created under Section 2308.253;
a nonprofit corporation that is eligible to receive funds under the federal
community services block grant program and that is authorized by this state to
serve a geographic area of the state; and
the part, section, or portion of an organization, corporation, commission,
committee, institution, or agency that spends or that is supported in whole or in
part by public funds.
State and local executive and legislative branches are included, while the judiciary is excluded
from the definition of a governmental body and is instead governed by the Texas Rules of
Judicial Administration, Rule 12.
Currently the Act is applicable to "public information," as defined by section 552.002 of the
Government Code. Section 552.002(a) provides that "public information" consists of
information that is collected, assembled, or maintained under a law or ordinance or in connection
with the transaction of official business:
i.
ii.
by a governmental body; or
for a governmental body and the governmental body owns the information or has a right
of access to it.
Section 552.002(b) outlines the media on which public information can be recorded, and Section
552.002(c) notes the general types of media that are subject to the Act including a book, paper
letter, document, printout, photograph, film, tape, microfiche, microfilm, photostat, sound
recording, map, drawing, a voice, data, or video representation held in computer memory.
Texas law provides a unique role to the Attorney General where the governmental body has to
ask the Attorney General first before redacting information. The burden lies with the agency to
prove that the information is not subject to the Act.
During the 82nd Legislative Session, Senator Kirk Watson filed Senate Bill 1571. The
Committee Substitute of the bill provided a definition of public function as a:
A. function performed or administered by:
i.
a governmental body; or
ii.
an elected or appointed public official of the state or any political subdivision
of the state;
B. function that is, wholly or partly, supported with public funds, only to the extent it is
directly supported by public funds; and
C. function that has been delegated to a nongovernmental entity pursuant to a contract to
which a governmental body is a party.
Appendix 22
The Committee Substitute also provided a definition of "public funds" as "funds of the state or of
a governmental subdivision of the state, including funds received by a governmental body from
the federal government or received as a result of intergovernmental transfers." This bill passed
the Senate Committee on Open Government but did not pass the Senate.
Discussion
New Technology
Transparency and accountability are important factors in governing. Legislators in 1973 realized
the value of providing the public with access to information surrounding governmental business.
Since the Public Information Act was originally enacted in 1973 and codified in the Government
Code, there have been vast changes to the way business is conducted. The advances in
technology over the last few decades have added additional venues and ease to governing, but
they have also added a layer of complexity to interpreting the Public Information Act.
In testimony to the Committee, the Attorney General's Office noted that existing opinions
address the issue of new technology and public business being conducted on private accounts, as
the Act defines public information by content of information as opposed to the media with which
it is transmitted.
A governmental body may not circumvent the applicability of the Act by conducting official
public business in a private medium. Open Records Decision No. 635 at 12, 425, 2. Virtually all
the information in the governmental bodys physical possession constitutes public information
and thus is subject to the Act. Open Records Decisions No. 549 at 4 (1990), No. 514 (1988).
As noted in testimony from the Attorney Generals Office and the 2012 Public Information
Handbook, personal notes and emails on personal email accounts may be subject to Act. The
following opinions and letter rulings clarify the issue:
Open Records Decision No. 120 (1976) concluded that faculty members written
evaluations of doctoral students qualifying exams are subject to the Act.
Open Records Decision No. 450 (1986) concluded that handwritten notes taken by an
appraiser while observing teachers classroom performance are subject to the Act.
Open Records Decision No. 626 (1994) concluded that handwritten notes taken during an
oral interview by Texas Department of Public Safety promotion board members are
subject to the Act.
Open Records Decision No. 635 (1995) concluded that a public official's or employees
appointment calendar, including personal appointment entries, may be subject to the Act.
Open Records Letter Nos. 2005-06753 (2005) concluded that the Mayor of Kemah's
correspondence maintained on his private business or personnel email accounts are
subject to the Act when the information relates to official business.
Open Records Letter Nos. 2003-1890 (2003) concluded that city officials' personal
cellular, personal office, home telephone records, and email correspondence on personal
email accounts, are subject the Act to the extent that the information relates to the
transaction of official city business.
5
Appendix 22
The Attorney Generals Office is currently litigating two cases on this issue. One deals with text
messages sent during a City Council meeting. A citizen asked for the text messages and the
Attorney Generals ruling noted that they are subject to the Act, while the City believes that the
text messages are not.
A second case was noted that involved private emails dealing with public business. A County
believes that these emails are not subject to the Act, while the Attorney General believes they
apply.
Testimony provided to the Committee noted that taxpayer dollars are paying to litigate these
cases from both the Attorney General's Office and the governmental bodies seeking to keep
information private.
Third Party Contractors
As governments move to reduce costs and improve efficiencies, the private sector is often
utilized to accomplish this. When the Act was written, governmental functions were performed
for the most part by governmental entities. Today, there is a more frequent reliance on the
private sector.
As such, the Act does not explicitly address this issue, but the Attorney Generals Office has in a
number of opinions. The Attorney General has noted that simply receiving public funds does not
make a private entity a governmental body under the Act.
The Attorney General Office has relied heavily on the analysis used by the Fifth Circuit Court of
Appeals in Kneeland. 3
In Kneeland, it noted an entity receiving public funds is treated as a governmental body under
the Act:
1. unless the private entitys relationship with the government imposes a specific and
definite obligation to provide a measurable amount of services in exchange for a certain
amount of money as would be expected in a typical arms-length contract for services
between a vendor and purchaser;
2. if the private entitys relationship with the government "indicates a common purpose or
objective or creates an agency-type relationship between two;" or
3. if the private entitys relationship with the government "requires the private entity to
provide services traditionally provided by governmental bodies."
Testimony taken during the Committee hearing noted that requests for public information from a
third party contractor are evaluated on a case by case basis according to the Kneeland standards.
In various opinions and open records decisions the Attorney General has ruled that information
supported by public funds is subject to the Act even if the entity performing the function is
private:
3
Texas Attorney General Opinion GA-0603 (2008), Texas Attorney General Opinion OR2012-11220, Texas Attorney General Opinion
OR2001-4849,Texas Attorney General Letter Opinion LO-97-017 (1997).
Appendix 22
Attorney General Opinion JM-821 (1987) a volunteer fire department receiving general
support from a fire prevention district.
Open Records Decision No.621 (1993) the Arlington Chamber of Commerce and the
Arlington Economic Development Foundation, through which the chamber of commerce
receives support of public funds.
Open Records Decision No. 602 (1992) the portion of Dallas Museum of Art that is
supported by public funds.
Open Records Decision No. 601 (1992) the El Paso Housing Finance Corporation
established pursuant to Chapter 394 of the Local Government Code and supported by
public funds.
Open Records Decision No. 273 (1981) a search advisory committee that was
established by a board of regents to recommend candidates for University president and
that expended public funds.
Open Records Decision 228 (1979) a private, non-profit corporation, with the purpose
of promoting the interests of the area, that received general support from the city
Open Records Decision 201, 195 (1978) entities officially designated as community
action agencies under the federal Economic Opportunity Act of 1964 and supported by
funds of the state or a political subdivision.
Other states have clarified that third-party contractors are subject to their state's Public
Information Act. In Connecticut, only contracts that exceed $2.5 million, if the contractor is
performing a governmental function, are explicitly subject to their Freedom of Information Act.
Minnesota goes further and makes all government data whether in a contractors hands or not,
subject to release under their Data Practice Act.
Conclusion
Consistency is needed between the Attorney General Opinions and the current statute. Codifying
existing Attorney General Opinions relating to the use of technology and private emails accounts
for public business will provide clarity and guidance in the Public Information Act, which will
hopefully reduce costs to the state for litigating and interpreting issues with the statute. The
issue of third party contractors provides greater complexity that may benefit from continued
analysis on a case by case basis by the Attorney General's Office.
Summary of Recommendations
The Committee recommends the Legislature consider codifying existing Attorney General
Opinions related to the use of technology and official business conducted on a personal account
in order to provide clarity and guidance regarding the Public Information Act.
The Committee recommends the Legislature continue to monitor the extent to which the Public
Information Act impacts third-party contractors with state and local government.
Appendix 22
Senate Open Government Committee Interim Charge #2

Charge
Examine the effectiveness of security measures used to protect electronic information held by
state agencies and make recommendations for enhancing security, if needed.
Background
In the recent past, a number of state agencies have experienced data breaches that affected
millions of Texans. One of these breaches involved highly confidential personal information that
was publically accessible over the internet for over a year, while others were as simple as an
employee mistakenly attaching a document with confidential information to an email. These and
a number of other data breaches were due to human error.
In testimony before the House Committee on Public Health in April 2012, Angel Cruz, State
Chief Information Security Officer with the Texas Department of Information Resources (DIR),
testified that only 7 percent of the 139 reported health information breaches since 2009 involved
hacking. The majority of health information security breaches involve human error, and this
holds true across the board with other types of breaches.
According to Kevin Beaver, an Atlanta-based information security expert, high turnover rates
and a heavy workload for members in an IT department can put an agency at an increased risk
for data breach. Additionally, stolen or lost equipment is another common example of security
breaches caused by human error. Laptops and disks are often misplaced, especially when more
than one individual is responsible for the property. Other states have reported breaches where
backup disks containing personal information were lost in transit by FedEx or another shipping
service. Equipment left in a car can also be at an increased risk of theft, especially when it is
visible to passers-by.
While some form of human error is the cause of the majority of data breaches, the threat of
hackers and other forms of malicious attacks on state agency computer systems cannot be
ignored. These attacks are especially worrisome because individuals or groups gaining access to
information through these means typically intend to misuse the information they obtain for
personal gain. Some hacker groups have a history of going after government agencies,
especially law enforcement entities. DIR stops on average 75 million attacks on state systems
every month. In this context, DIR defines an incident as any attempt to improperly access a state
system, mostly through automated attacks coming in from the internet against state applications,
servers, and web sites.
Discussion
In recognition of the growing threats to electronic information, the 82nd Texas Legislature
passed Senate Bill 988, which authorized the creation of the Cybersecurity, Education, and
Economic Development Council (Council). The Council was created to provide
recommendations on ways to 1) improve the infrastructure of the states cybersecurity operations
8
Appendix 22
with existing resources and through partnerships between government, business, and institutions
of higher education; and 2) examine specific actions to accelerate the growth of cybersecurity as
an industry in the state.
In testimony provided to the Committee, the Council noted that all state agencies are required to
maintain security best practices according to 1 Texas Administrative Code (TAC) 202.
According to the Council, "[w]hile collaborative efforts within the State would strengthen the
overall security posture of state agencies; the Council recognized that state agency compliance
with TAC 202 requirements form a good foundation for ensuring basic protection of State of
Texas information assets. Additionally, the Council identified the need to increase the number of
cybersecurity practitioners throughout the State, not only to provide the expertise needed to grow
cybersecurity investments in Texas, but also to protect the states cyber assets."
In the Council's December 2012 report, it "focused on analyzing the cybersecurity economic
development context, cybersecurity education capabilities, and cyber operations for the states
cyber infrastructure environment, both public and private." When examining the public aspect, it
noted that "DIR has established a strong information security program for state agencies and is
capable of taking on a greater leadership role in cybersecurity." The report argues that DIR's
duties and powers should be strengthened and expanded, specifically noting:
DIRs successes in recent years to develop and implement cybersecurity for state
agencies must be capitalized upon and its role further developed to enable the continued
growth of a comprehensive cybersecurity plan for the states public infrastructure.
To the extent that Texas legislation currently addresses the topic of cybersecurity at all,
the focus is primarily on one of reaction to a cyber crime and potential punishments (Title
7 Texas Penal Code, Chapter 33 regarding Computer Crimes) rather than any focus on
prevention or protection against malicious cyber activities.
Despite best efforts, cyber crime and incidents will continue, and the need to respond
remains. But just as important to the overall cybersecurity effort is identifying
vulnerabilities and taking proactive measures before incidents occur. To that end, Texas
Government Code sections regarding DIRs duties and powers should be reviewed and
updated, and resources identified, in order to enhance DIRs efforts to lead
implementation of state infrastructure improvement activities.
DIR provides statewide leadership and oversight for management of government information
and communications technology. Part of their responsibilities include developing statewide
security policies and best practices, maintaining a 24/7 security alert and response system, and
providing training on security. For example, DIR manages the state's IT security program, which
is responsible for the security of information and communications technology resources,
including the physical and logistical security of the state's data systems and networks. As part of
this program, DIR conducts technical security and risk assessments for agencies to identify
vulnerabilities and suggests countermeasures to prevent intrusions or data loss. They also
provide 24/7 external monitoring, alerting, and reporting of malicious traffic on agency systems.
Appendix 22
In addition, DIR maintains secure communication portals and channels to provide information
sharing among state agency information security officers.
DIR has also contracted with Gartner, a third party firm, to conduct in-depth reviews of the
security vulnerabilities and weaknesses for state agencies. Agencies participate in this review
voluntarily. This process is funded through DIR's telecommunications account, so there is no
financial impediment for agencies that wish to participate.
DIR partners with the Department of Public Safety for response planning and management for
cybersecurity events that may impact the state's critical infrastructure. They also work with the
U.S. Department of Homeland Security's Multi-State Information Analysis and Coordination
Center to conduct cyber exercises and improve the state's cyber plans. While prevention of
security breaches is a main concern, it is important to ensure the state is ready to respond to
breaches that do occur in order to minimize damage.
Conclusion
It is clear that human error plays a large role in the security breaches that various state agencies
have experienced in the last several years. At the same time, the threat posed by hackers and
other malicious actors cannot be overlooked. Technology is advancing so fast that it can be
difficult for IT departments to keep up with the changes, increasing the risk of attack. In
addition, human error may be minimized, but it cannot be eliminated. Therefore, state agencies
need to focus on ways to discover mistakes as soon as possible and immediately respond when
they are found.
Ensuring that each agency has adequate policies and procedures in place that are followed by
each employee can help to mitigate some of these threats. Additional training can also help to
make sure employees are following new standards as they are updated.
Summary Recommendations
The Committee recommends the Legislature examine whether expanding the Department of
Information Resources' legislative authority would be an appropriate and cost-effective means of
reducing the number of data breaches.
The Committee recommends the Legislature continue to monitor the threat to Texas'
cypersecurity, particularly as it relates to confidential data held by state agencies.
10
Appendix 22
Senate Open Government Committee Interim Charge # 3

Charge
Review record retention policies for state and local governments and make recommendations for
improvements to record retention schedules and policies, including e-mail retention and
archiving requirements. Consider the benefits and disadvantages of creating a uniform record
retention policy.
Background
In written submitted testimony before the Committee, Director and Librarian of the Texas State
Library and Archives Commission (Commission) Peggy Rudd explained the history and charge
of the Commission:
In 1947 both houses of the Texas Legislature voted unanimously to authorize the Texas
Library and Historical Commission to establish and maintain in the State Library a
records administration division whichshall manage all public records of the State with
the consent and cooperation of the heads of the various departments and institutions in
charge of such records
(Government Code, Chapter 441, Subchapter L;
Administrative Code, Title 13, Chapter 6).
In 1989 with the passage of the Local Government Records Act (Local Government
Code, Title 6, Subtitle C; Government Code, Chapter 441, Subchapter J; Administrative
Code, Title 13, Chapter 7), the Texas Legislature gave the Texas State Library and
Archives Commission authority to support the preservation and effective management of
local government records.
Chapter 441, Subchapter L of the Texas Government Code outlines broad and inclusive records
management requirements for state agencies and requires that each agency:
Establish a records management program on a continuing and active basis;

Appoint a Records Management Officer (in lieu of the executive director assuming RMO
duties);
Develop a records retention schedule;
Identify and protect vital records;
Transfer archival records to the State Archives, with the exception of University systems
and institutions of higher education; and
Document the final disposition of records.
Under Texas State Library and Archives Commission rules, each state agency must determine
which records are state records and list these records on a retention schedule. Records are
managed by the substance of the records, not the records media or type of tool or format used to
capture the records. This would extend to social media, blogs, wikis, and email if they contain
state records as they are simply tools to capture records. Existing law applies to all information
11
Appendix 22
that meets the definition of a state record, meaning information necessary to document the
agencys business. Compliance lies with each agency.
The Commission and the Department of Information Resources help state agencies and local
governments follow state statutes regarding records retention and IT management of these
records.
The Commission states the following on retention schedules:
A uniform retention policy exists now in the Texas State Records Retention Schedule,
which has been adopted as an administrative rule. The retention schedule indicates the
minimum length of time listed records series must be retained by a state agency before
destruction or archival preservation. This is a general schedule for state agencies that
contains common records of all state agencies and sets minimum retention requirements.
In addition, state agencies add their own retention series to their schedule to account for
agency specific or program records. (See Government Code, Section 441.185, Records
Retention Schedules and Government Code, Section 441.182(c) (2), State Records
Management Program.)
There are 12 local government records retention schedules for different offices and
functions that set minimum retention requirements. Local governments may compile
their own retention schedules as long as the schedules meet the minimum retention
requirements. (See Local Government Code, Section 203.002(3), Duties and
Responsibilities of Elected County Officers as Records Management Officers and Local
Government Code, Section 203.023(3) (a), Duties of Records Management Officers.)
The Records Management Interagency Coordinating Council (RMICC) was established in the
74th Legislature to study and make recommendations for best practices pertaining to records
management. RMICC submitted their biennial report to the Legislature on October 2012, which
includes an analysis of the issues surrounding preservation of electronic records including
electronic mail (email).
Discussion
Records management for governmental entities is an important and essential function of
government. Not only must records be maintained for the vital purpose of transparency and
openness in government, but records must also be reliably maintained for posterity and to protect
the rights of constituents. These interests must be preserved while agencies and local
governments deal with the issues facing the practicality of records retention such as changing
technology, storage space (digital or otherwise), cost, and the burden on staff that may already be
spread thin.
Technology presents both complications and opportunities pertaining to ease of records
retention. Technologies that satisfy the needs of an agency or local government one day, may be
obsolete the next. With increasing access to multiple mobile personal computers such as laptops,
smart phones, and tablets, government records can be created whenever and wherever.
12
Appendix 22
According to the RMICC report, "this often leads to inadequate control over the creation and
maintenance of electronic records. We have to help the hoarders who never sort or manage their
records, as well as those who delete everything without regard to records series, retention
periods, documentation or archival needs."
Email is increasingly the primary method for interagency, cross agency, and local government
communications. The volume of electronic records and redundancy of those records created by
email further complicates records retention. However, governmental entities and the public have
a keen interest in preserving these records. According to the RMICC report:
Failure to manage email effectively places at risk the integrity, security and survival of
organizational records. For example:
Managers and employees frequently use email to announce decisions, document

processes and even store archival information, either from habit or lack of
alternatives. In such situations, an organization is just one server-crash away from
losing vital data.
An estimated 80 percent of an organization's intellectual property (or other sensitive

information) goes through its email server. The absence of non-secured monitoring
and disposition of electronic messages exposes an entity's key assets to theft or
unauthorized viewing.
Also, it's very important to preserve metadata (such as sender, recipients, time and date) to
prove the validity of each email as legal evidence.
Furthermore, the lack of structure for email retention costs the state money. Again, according to
the RMICC report:
It has been estimated that 90 percent of all email records on employees' computers are
convenience copies or transitory messages - the result of human reluctance to delete data
even when its purpose has been fulfilled. This creates higher incremental costs that can
add up to significant amounts. For example, one Texas state agency found it had been
spending $126 per employee per month to store emails on servers; if the same is true of
other state organizations, the potential for savings is obvious.
Ineffective email management lowers productivity, causing employees to spend an
average of 182 hours per year looking for lost e-files, according to one estimate. For a
state agency with 1,000 employees, the hypothetical price of such searches would exceed
$1.4 million per year, based on an average compensation rate of $28.06 per hour. But
perhaps a larger cost is the consumption of agency time better spent on customer service
and core functions.
The records retention guidelines developed by the Commission do not seem to be overly
burdensome to or costly to local governments. The City of Houston submitted testimony at the
Committee's November 26 hearing to that effect. However, the Commission did note that it
13
Appendix 22
would be difficult to develop a uniform retention policy across agencies and local governments
because the needs and functions widely differ.
Conclusion
The efficiency and integrity of records retention must rely on technology, but the ever evolving
nature of technology presents certain challenges. The challenge of evolving technology must
take into consideration cost effectiveness, minimization of risk of obsolescence, ease of
migration, and preservation of record integrity.
The increasing access to multiple mobile personal computers creates the potential for the
creation of government records whenever and wherever. Because public employees are
increasingly solely responsible for records retention, clearer guidance is needed to help public
employees identify records that warrant retention and a process by which those records must be
retained. This is especially true for government records maintained in electronic format.
Because the needs and functions of various state agencies and local governments are different, it
would be difficult to create a uniform records retention schedule. Current guidelines are helpful,
but periodic review of agency and local government policies would be beneficial to ensure
compliance.
Summary Recommendations
The Committee recommends the Legislature study the feasibility of creating a repository for
preserving electronic records at the Texas State Library and Archives Commission.
The Committee recommends the Legislature task the Texas State Library and Archives
Commission and the Department of Information Resources to work together to assist state
agencies and local governments with identifying archival technology and assist with migration.
The Committee recommends the Legislature continue to study the issues surrounding social
media, email, public access to government records and records retention.
14
Appendix 22
Senate Government Organization Committee Interim Charge #4

Charge
Study ways to define and address frivolous and/or overly-burdensome open records requests.
Include an analysis of appropriate cost recovery by governmental entities for expenses and time
related to responding to requests, while ensuring the public has adequate access to public
information.
Background
The Texas Public Information Act (Act) does not currently define "frivolous" or "overlyburdensome" open records requests. In fact, Section 552.222 of the Texas Government Code
prohibits "the officer for public information and the officer's agent" from asking why the
requestor wants the information.
Cost recovery is addressed in the Texas Government Code, Section 552.261 through 552.275,
and notes that entities can charge for reproducing public information including costs of materials,
labor, and overhead.
These charges must be calculated according to the rules and method of calculation provided by
the Attorney General. For 50 or fewer pages of paper records, the charge is limited to the charge
for each photocopy and cannot include the cost of materials, labor, or overheard, unless the
information is in two or more separate buildings that are not connected or a remote storage
facility. If a request for public information will result in costs exceeding $40, the governmental
body is required to provide the requestor with an itemized statement of charges. The estimate
must also include an alternative way to view the information, if it is less expensive.
A local governmental body has the ability to charge up to 25 percent more than what is
established in the cost rules by the Attorney General, if needed. A governmental body may also
submit a written request for an exemption from all or part of the cost rules adopted by the
Attorney General. The Attorney General has 90 days to make a determination regarding the
request.
Requestors can ask to inspect public information without a charge, unless they request a copy of
the information. Governmental bodies can charge for the cost of editing confidential information
from the material prior to inspection. They can also charge for the personnel costs for making
the information available for inspections, if the public information is older than five years or fills
more than six archival boxes and will require more than five hours to assemble. For
governmental bodies with fewer than 16 full time employees, they can charge for inspection if
the information is older than three years or fills more than three archival boxes and requires more
than two hours to assemble.
In 2007, House Bill 2564 by Representative Kelly Hancock and sponsored by Senator Jeff
Wentworth added Section 552.275 to the Act. This section allows government bodies the ability
to charge for requests that require a large amount of time to compile. A governmental body may
15
Appendix 22
establish a reasonable limit on the amount of time that personnel are required to spend on
producing public information for inspection or duplication by a requestor without recovering its
cost attributable to that personnel time. A time limit may not be less than 36 hours for a
requestor during a 12 month period corresponding to the fiscal year of the government body.
Public officials and journalists are exempt, as well as legal service organizations. This section
does not prohibit a governmental body from providing a copy of public information without
charging a reduced or waived fee.
Corsicana and Kemah City Councils, as well as Fort Bend and Comal County, have passed
ordinances establishing this provision.
Discussion
From invited and witness testimony taken at the hearing, over-burdensome and frivolous
requests do occur, but the vast majority of requestors utilize the law for its intended purpose.
The actions of a few do disrupt and provide unnecessary work for governmental bodies.
The Attorney General's Office testified regarding the current cost statute and noted that there are
mechanisms to allow for recovering costs. Local entities can charge 25 percent more than what
is established through rule and can also set time limits for frequent requestors, which cannot be
less than 36 hours, after which full cost recovery is possible, but the governmental body must
establish the limits.
Local entities that testified did not mention taking advantage of Section 552.275 of the Act,
which may remedy the issues noted with frequent requestors once the time limit has been met.
The City of Houston's written testimony noted that "frivolous and/or extraordinarily
burdensome requests are motivated by party politics, election season, and former
employees with axes to grind and the hobby horse with retaliatory strategies 4." The issue
with said request is that the current statute does not consider the staffing, time and money
associated with the City's fiduciary duty to redact certain types of private information
when processing a "burdensome" request. One such example outlined was a group that
made a single request for everything in the Mayor's office from January 2004 through
2009. After 6 months, using three attorneys and four paralegals and spending $180,000
the requestor withdrew the request without paying.
The City of Irving Secretary's written testimony highlighted an abusive requestor who
exploits the Act to the detriment of taxpayers. In her testimony she highlights a single
requestor whom submitted: 398 requests, or 40 percent of the total number of request in
FY 2007-08; 320 requests or 38 percent of total request in FY 2008-09; and 331 requests
for 28 percent of total request in FY 2009-10 submitted in Irving. Also mentioned in her
testimony was time that the City of Irving is unable to charge for, such as the full time for
The hobby horse with retaliatory strategies means a requestor would make a request and if the City didnt immediately release the information
so they could get an AG's Opinion the requestor would immediately file a request for the personnel file of the attorney who prepared the opinion
request.
16
Appendix 22
document retrieval, reading through documents before redaction, drafting a request for an
Attorney General Opinion, and responding to the open records requests via certified mail.
Senate Bill (S.B.) 669 filed by Senator Jeff Wentworth during the 82nd Legislative Session also
sought to further address the issue of over-burdensome or frivolous requests. The bill passed
out of the Senate Select Committee on Open Government, the full Senate, the House Committee
on State Affairs, and was sent to House Calendars. S.B. 669 allowed public information requests
to be fulfilled by citing where the information is available on-line. It also allowed governmental
bodies to obtain actual costs, to be defined by the Attorney General, for the records if the
requestor had submitted seven or more request within the last 31 days, including modification to
an existing requested. If the government body requires payment for actual costs for public
information; the government body must provide the requestor with a written estimate. The press
is exempt from this bill, but non-profits that may be interested in government transparency
would not be exempt.
During the hearing, witnesses noted that overly burdensome and frivolous were highly subjective
terms. They also asserted that in their experience some public agencies are now routinely
appealing virtually all open records requests to the Attorney General, even when letter rulings
and case law create a clear precedent for release of the information. The testimony quoted a
study by the Center for Public Integrity which found that among the state's biggest cities, Dallas
and several of its suburbs had "the highest rate of requests to Texas Attorney General Greg
Abbott last year to keep government information a secret."
Other States and Government Bodies
Governmental entities outside of Texas have passed laws to define and address over-burdensome
and frivolous requests for public information.
In 2010, Hawaii enacted S.B. 2937, which exempts disclosure of government records in
response to duplicate requests from a single requestor.
Arkansas' and Delaware's statutes allow the governmental entity to deny the request for
information. A requestor would then have to bring suit to release the information. The
court may award attorney fees and costs to a successful plaintiff of any action brought
under this section. The court may award attorney fees and costs to a successful defendant,
but only if the court finds that the action was frivolous or was brought solely for the
purpose of harassment.
Pennsylvania law (P.S. Sec. 67.506) permits an agency to deny a public information
request for repeated requests for the same information that place an unreasonable burden
on the agency.
The United Kingdom provides that public authorities are not obligated to comply with a
"vexatious request" or repeat requests for similar information. The request for
information focusing not on the person making the request but on the type and manner of
information requests (Section 14(1) of the Freedom of Information Act). The Ministry of
Justice considers a request vexatious if it seeks information of a frivolous nature, is likely
to cause distress or irritation without justification, or is aimed at disrupting the work of
the public authority or harassing authority employees.
In Connecticut any person denied the right to inspect or copy documents under the
Freedom of Information Act can file an appeal to their Commission. The Commission
17
Appendix 22
can fine a person between $20 and $1,000 if it believes a groundless and frivolous
complaint to harass an agency was filed (CGS 1-206). A public agency can ask a court
for an injunction to prohibit the requestor from bringing any further appeals to the
Commission if it finds that doing so would create an injustice or constitute an abuse of
the Commission's administrative process. If the court orders the injunction and the
requestor files another appeal violating it, the agency can seek further injunctive relief as
well as damages and costs (CGS 1-241).
Conclusion
When it comes to over-burdensome and frivolous requests, the actions of a few individuals can
disrupt governmental functions. The current statute provides avenues for governmental entities
to recoup some of the cost, as laid out by the Attorney General's office, for filling the request for
information. While there is no simple solution, the Legislature should continue to study and
monitor the issue of over-burdensome requests.
Summary of Recommendations
The Committee recommends that governmental bodies consider reviewing their open records
requests to assess what content is frequently requested and currently not available on-line and
consider posting these documents on-line to reduce requests.
The Committee recommends that the Legislature continue to monitor the issues and pending
litigation surrounding open records requests.
18
Appendix 22
PUBLIC INFORMATION
HANDBOOK 2014
REV 10/13
Appendix 23
A TTORN EY G EN ERAL OF T EXAS

GREG ABBOTT
Dear Fellow Texans:

Our republic was founded on the principle of self-governmentthe idea that a free people
can establish the framework and function of how they are to be governed, and then choose
the individuals who will lead the government in the publics best interest. Implicit in the
idea of self-government is the notion that the public should know what their government is
doing.
This notion of openness is the foundation for Texas open government laws, and it was the
motivation for the enactment of the Public Information Act (PIA) more than four decades
ago. The PIA enshrines Texans right to access the information that governmental bodies
produceand outlines the process by which the public can request that information and how
governmental bodies should respond.
It is the responsibility of the Office of the Attorney General to administer and enforce this
law, and I take these duties seriously. One of the ways our office does that is by educating
the public and governmental bodies on what the PIA requires. That is where the Public
Information Handbook comes into play. This Handbook explains the history of the Act and
includes such topics as how to make an open records request, what types of information are
subject to these requests and the consequences of a governmental bodys noncompliance.
This 2014 edition also includes updates from the 83rd Legislature.
Additional open government resources are available on the OAG website at
www.texasttorneygeneral.gov. Texans also may call our toll-free Open Government Hotline
for answers to their open government questions. That number is 877-OPEN TEX
(877-673-6839).
Government can only be successful when it is accountable to the people, and I sincerely hope
this Handbook fosters accountability and openness for the good of all Texans.
Sincerely,
Greg Abbott
Attorney General of Texas
PO S T OF F I C E BO X 12548, AU S T I N , TE X A S 78711-2548
Appendix 23
TEL:
(512)463-2100
A n Equa l Em pl o ym ent O pp or t unit y Em pl o ye r P r int e d o n R ec y c l ed Pa pe r
W W W .O AG .STATE.TX.U S
Appendix 23
TABLE OF CONTENTS
A PREFACE TO THE PUBLIC INFORMATION HANDBOOK.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
PART ONE: HOW THE PUBLIC INFORMATION ACT WORKS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
OVERVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Historical Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Policy; Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Attorney General to Maintain Uniformity in Application, Operation and
Interpretation of the Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
D. Section 552.021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
E. Open Records Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II.
ENTITIES SUBJECT TO THE PUBLIC INFORMATION ACT. . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. State and Local Governmental Bodies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Private Entities that Are Supported by or Spend Public Funds. . . . . . . . . . . . . . . . . . . 8
C. Certain Property Owners Associations Subject to Act. . . . . . . . . . . . . . . . . . . . . . . . 10
D. A Governmental Body Holding Records for Another Governmental Body. . . . . . . . 11
E. Private Entities Holding Records for Governmental Bodies. . . . . . . . . . . . . . . . . . . . 11
F. Judiciary Excluded from the Public Information Act. . . . . . . . . . . . . . . . . . . . . . . . . 13
III.
INFORMATION SUBJECT TO THE PUBLIC INFORMATION ACT. . . . . . . . . . . . . . . . . . . . 16

A. Public Information is Contained in Records of All Forms. . . . . . . . . . . . . . . . . . . . . 16
B. Exclusion of Tangible Items. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. Personal Notes and Email in Personal Accounts or Devices. . . . . . . . . . . . . . . . . . . . 17
D. Commercially Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
IV.
PROCEDURES FOR ACCESS TO PUBLIC INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Informing the Public of Basic Rights and Responsibilities Under the Act. . . . . . . . . 19
B. The Request for Public Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. The Governmental Bodys Duty to Produce Public Information Promptly. . . . . . . . . 21
D. The Requestors Right of Access.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Right to Inspect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Right to Obtain Copies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
E. Computer and Electronic Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
V.
DISCLOSURE TO SELECTED PERSONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

A. General Rule: Under the Public Information Act, Public Information is
Available to All Members of the Public. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
B. Some Disclosures of Information to Selected Individuals or Entities Do Not
Constitute Disclosures to the Public Under Section 552.007. . . . . . . . . . . . . . . . . . . 29
1. Special Rights of Access: Exceptions to Disclosure Expressly Inapplicable
to a Specific Class of Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Appendix 23
a. Special Rights of Access Under the Public Information Act.. . . . . . . . . . . . . 29

i. Information for Legislative Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ii. Information About the Person Who is Requesting the Information. . . . . 31
iii. Information in a Student or Educational Record. . . . . . . . . . . . . . . . . . . . 32
b. Special Rights of Access Created by Other Statutes. . . . . . . . . . . . . . . . . . . . 33
2. Intra- or Intergovernmental Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3. Other Limited Disclosures that Do Not Implicate Section 552.007. . . . . . . . . . . 35
VI.
ATTORNEY GENERAL DETERMINES WHETHER INFORMATION IS

SUBJECT TO AN EXCEPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A. Duties of the Governmental Body and of the Attorney General
Under Subchapter G.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. Items the Governmental Body Must Submit to the Attorney General. . . . . . . . . . . . . 39
1. Written Communication from the Person Requesting the Information. . . . . . . . . 40
2. Information Requested from the Governmental Body.. . . . . . . . . . . . . . . . . . . . . 41
3. Labeling Requested Information to Indicate Which Exceptions Apply
to Which Parts of the Requested Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4. Statement or Evidence as to Date Governmental Body Received
Written Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5. Letter from the Governmental Body Stating Which Exceptions
Apply and Why. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
C. Section 552.302: Information Presumed Public if Submissions and
Notification Required by Section 552.301 Are Not Timely Made. . . . . . . . . . . . . . . 44
D. Section 552.303: Attorney General Determination that Information in Addition
to that Required by Section 552.301 is Necessary to Render a Decision. . . . . . . . . . 46
E. Section 552.305: When the Requested Information Involves a
Third Partys Privacy or Property Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
F. Section 552.3035: Attorney General Must Not Disclose Information at Issue . . . . . 49
G. Section 552.304: Submission of Public Comments .. . . . . . . . . . . . . . . . . . . . . . . . . 49
H. Rendition of Attorney General Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
I. Timeliness of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
VII.
COST OF COPIES AND ACCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

A. Charges for Copies of Paper Records and Printouts of Electronic Records. . . . . . . . 50
B. Charges for Inspection of Paper Records and Electronic Records.. . . . . . . . . . . . . . . 52
C. Waivers or Reduction of Estimated Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
D. Providing a Statement of Estimated Charges as Required by Law. . . . . . . . . . . . . . . 53
E. Cost Provisions Regarding Requests that Require a Large Amount of
Personnel Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
F. Complaints Regarding Alleged Overcharges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
G. Cost Provisions Outside the Public Information Act.. . . . . . . . . . . . . . . . . . . . . . . . . 57
Appendix 23
VIII. PENALTIES AND REMEDIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

A. Informal Resolution of Complaints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
B. Criminal Penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
C. Civil Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1. Writ of Mandamus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2. Violations of the Act: Declaratory Judgment or Injunctive Relief;
Formal Complaints.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
a. Venue and Proper Party to Bring Suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
b. Suit Pursuant to Formal Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
c. Procedures for Formal Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
d. Governmental Body Must Be Given Opportunity to Cure Violation. . . . . . . 60
e. Cumulative Remedy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3. Suits over an Open Records Ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4. Discovery and Courts In Camera Review of Information Under
Protective Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
D. Assessment of Costs of Litigation and Reasonable Attorneys Fees. . . . . . . . . . . . . . 62
IX.
PRESERVATION AND DESTRUCTION OF RECORDS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
X.
PUBLIC INFORMATION ACT DISTINGUISHED FROM CERTAIN OTHER STATUTES. . . . . 64

A. Authority of the Attorney General to Issue Attorney General Opinions. . . . . . . . . . . 64
B. Texas Open Meetings Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
C. Discovery Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
PART TWO : EXCEPTIONS TO DISCLOSURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

I.
INFORMATION GENERALLY CONSIDERED TO BE PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . 66

A. Section 552.022 Categories of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Discovery Privileges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
2. Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
B. Certain Investment Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
C. Other Kinds of Information that May Not Be Withheld. . . . . . . . . . . . . . . . . . . . . . . 69
II.
EXCEPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
A. Section 552.101: Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
1. Information Confidential Under Specific Statutes.. . . . . . . . . . . . . . . . . . . . . . . . 71
a. State Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
b. Federal Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
2. Information Confidential by Judicial Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
a. Information Confidential Under Common Law or
Constitutional Privacy Doctrine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
i. Common-law Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(a) Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(b) Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Appendix 23
B.
C.
D.
E.
F.
G.
H.
Appendix 23
ii. Constitutional Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

iii. Privacy Rights Lapse upon Death of the Subject.. . . . . . . . . . . . . . . . . . . 77
iv. False-Light Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
v. Special Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
b. Informers Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 552.102: Confidentiality of Certain Personnel Information. . . . . . . . . . . . . . 80
1. Dates of Birth of Public Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
2. Transcripts of Professional Public School Employees. . . . . . . . . . . . . . . . . . . . . 81
Section 552.103: Litigation or Settlement Negotiations Involving
the State or a Political Subdivision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
1. Governmental Bodys Burden. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
2. Only Circumstances Existing at the Time of the Request. . . . . . . . . . . . . . . . . . . 83
3. Temporal Nature of Section 552.103.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
4. Scope of Section 552.103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5. Duration of Section 552.103 for Criminal Litigation. . . . . . . . . . . . . . . . . . . . . . 84
Section 552.104: Information Relating to Competition or Bidding. . . . . . . . . . . . . . 84
Section 552.105: Information Relating to Location or Price of Property. . . . . . . . . . 86
Section 552.106: Certain Legislative Documents.. . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 552.107: Certain Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
1. Information Within the Attorney-Client Privilege.. . . . . . . . . . . . . . . . . . . . . . . . 89
a. Attorney Fee Bills. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
b. Information a Private Attorney Holds for the Governmental Body.. . . . . . . . 91
c. Waiver of the Attorney-Client Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2. Information Protected by Court Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 552.108: Certain Law Enforcement, Corrections, and
Prosecutorial Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
1. The Meaning of Law Enforcement Agency and the Applicability of
Section 552.108 to Other Units of Government. . . . . . . . . . . . . . . . . . . . . . . . . . 93
2. Application of Section 552.108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
a. Interference with Detection, Investigation, or Prosecution of Crime. . . . . . . 95
i. Information Relating to the Detection, Investigation, or
Prosecution of Crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
(a) Records Regarding Family Violence. . . . . . . . . . . . . . . . . . . . . . . . 96
(b) Mug Shots. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
ii. Internal Records of a Law Enforcement Agency. . . . . . . . . . . . . . . . . . . . 97
b. Concluded Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
c. Information Relating to a Threat Against a Peace Officer or
Detention Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
d. Prosecutor Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
3. Limitations on Scope of Section 552.108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
4. Application of Section 552.108 to Information Relating to Police Officers
and Complaints Against Police Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
a. Personnel Files of Police Officers Serving in Civil Service Cities. . . . . . . . 102
5. Other Related Law Enforcement Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
a. Criminal History Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
b. Juvenile Law Enforcement Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
c. Child Abuse and Neglect Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
d. Sex Offender Registration Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

e. Records of 9-1-1 Calls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
f. Certain Information Related to Terrorism and Homeland Security.. . . . . . . 108
I. Section 552.1085: Confidentiality of Sensitive Crime Scene Image . . . . . . . . . . . . 109
J. Section 552.109: Confidentiality of Certain Private Communications of an
Elected Office Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
K. Section 552.110: Confidentiality of Trade Secrets and Confidentiality of
Certain Commercial or Financial Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
1. Trade Secrets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
2. Commercial or Financial Information Privileged or Confidential by Law. . . . . 114
L. Section 552.111: Agency Memoranda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
1. Deliberative Process Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
2. Work Product Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
M. Section 552.112: Certain Information Relating to Regulation of Financial
Institutions or Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
N. Section 552.113: Confidentiality of Geological or Geophysical Information. . . . . . 119
O. Sections 552.026 and Section 552.114: Confidentiality of Student Records. . . . . . 123
1. Family Educational Rights and Privacy Act of 1974.. . . . . . . . . . . . . . . . . . . . . 123
P. Section 552.115: Confidentiality of Birth and Death Records. . . . . . . . . . . . . . . . . 126
Q. Section 552.116: Audit Working Papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
R. Section 552.117: Confidentiality of Certain Addresses, Telephone Numbers,
Social Security Numbers, and Personal Family Information. . . . . . . . . . . . . . . . . . . 131
1. Subsections (a)(1), (9), and (10): Public Officials and Employees,
Juvenile Probation or Supervision Officers, Juvenile Justice Program, or
Facility Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
2. Subsections (a)(2), (3), (4), (5), and (6): Peace Officers, Texas Department
of Criminal Justice Employees, and Certain Law Enforcement Personnel. . . . . 136
S. Section 552.1175: Confidentiality of Addresses, Telephone Numbers, Social
Security Numbers, and Personal Family Information of Peace Officers, County
Jailers, Security Officers, and Employees of Texas Department of Criminal
Justice, a Prosecutors Office, Certain Criminal or Juvenile Justice Agencies or
Offices, Federal and State Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
T. Section 552.1176: Confidentiality of Certain Information Maintained
by State Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
U. Section 552.118: Confidentiality of Official Prescription Program Information. . . 141
V. Section 552.119: Confidentiality of Certain Photographs of Peace Officers. . . . . . 141
W. Section 552.120: Confidentiality of Certain Rare Books and Original
Manuscripts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
X. Section 552.121: Confidentiality of Certain Documents Held for
Historical Research. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Y. Section 552.122: Test Items. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Z. Section 552.123: Confidentiality of Name of Applicant for Chief Executive
Officer of Institution of Higher Education.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
AA. Section 552.1235: Confidentiality of Identity of Private Donor to
Institution of Higher Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
BB. Section 552.124: Confidentiality of Records of Library or Library System. . . . 145
CC. Section 552.125: Certain Audits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Appendix 23
DD.
EE.
FF.
GG.
HH.
II.
JJ.
KK.
LL.
MM.
NN.
OO.
PP.
QQ.
RR.
SS.
TT.
UU.
VV.
WW.
XX.
YY.
ZZ.
AAA.
BBB.
CCC.
Appendix 23
Section 552.126: Confidentiality of Name of Applicant for Superintendent

of Public School District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Section 552.127: Confidentiality of Personal Information Relating to
Participants in Neighborhood Crime Watch Organization. . . . . . . . . . . . . . . . . 147
Section 552.128: Confidentiality of Certain Information Submitted by
Potential Vendor or Contractor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Section 552.129: Confidentiality of Certain Motor Vehicle Inspection
Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Section 552.130: Confidentiality of Certain Motor Vehicle Records.. . . . . . . . 149
Section 552.131: Confidentiality of Certain Economic Development
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Section 552.132: Confidentiality of Crime Victim or Claimant Information.. . 152
Section 552.1325: Crime Victim Impact Statement: Certain Information
Confidential. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Section 552.133: Confidentiality of Public Power Utility Competitive
Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Section 552.134: Confidentiality of Certain Information Relating to Inmate
of Department of Criminal Justice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Section 552.135: Confidentiality of Certain Information Held by School
District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Section 552.136: Confidentiality of Credit Card, Debit Card,
Charge Card, and Access Device Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Section 552.137: Confidentiality of Certain E-mail Addresses. . . . . . . . . . . . . 161
Section 552.138: Confidentiality of Family Violence Shelter Center,
Victims of Trafficking Shelter Center, and Sexual Assault Program
Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Section 552.139: Confidentiality of Government Information Related to
Security or Infrastructure Issues for Computers.. . . . . . . . . . . . . . . . . . . . . . . . . 164
Section 552.140: Confidentiality of Military Discharge Records.. . . . . . . . . . . 165
Section 552.141: Confidentiality of Information in Application for
Marriage License. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Section 552.142: Confidentiality of Records of Certain Deferred
Adjudications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Section 552.1425: Civil Penalty: Dissemination of Certain Criminal
History Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Section 552.143: Confidentiality of Certain Investment Information.. . . . . . . . 168
Section 552.144: Working Papers and Electronic Communications of
Administrative Law Judges at State Office of Administrative Hearings.. . . . . . 169
Section 552.145: Confidentiality of Texas No-Call List. . . . . . . . . . . . . . . . . . 169
Section 552.146: Certain Communications with Assistant or Employee
of Legislative Budget Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Section 552.147: Social Security Numbers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Section 552.148: Confidentiality of Certain Personal Information
Maintained by Municipality Pertaining to a Minor. . . . . . . . . . . . . . . . . . . . . . . 171
Section 552.149: Confidentiality of Records of Comptroller or Appraisal
District Received From Private Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
DDD. Section 552.150: Confidentiality of Information That Could Compromise

Safety of Officer or Employee of Hospital District. . . . . . . . . . . . . . . . . . . . . . . 173
EEE. Section 552.151: Confidentiality of Information Concerning Information
Regarding Select Agents .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
FFF. Section 552.152: Confidentiality of Information Concerning Public
Employee or Officer Personal Safety.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
GGG. Section 552.153: Proprietary Records and Trade Secrets Involved in
Certain Partnerships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
HHH. Section 552.154: Name of Applicant for Executive Director, Chief
Investment Officer, or Chief Audit Executive of Teacher Retirement
System of Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
PART THREE: TEXT OF THE TEXAS PUBLIC INFORMATION ACT. . . . . . . . . . . . . . . . . . . . . . . 177
PART FOUR : RULES PROMULGATED BY THE ATTORNEY GENERAL. . . . . . . . . . . . . . . . . . . 260
PART FIVE:
TABLE OF CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
PART SIX :
TABLE OF STATUTES, RULES, AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . . 291
PART SEVEN : RULES OF JUDICIAL ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295

PART EIGHT: PUBLIC INFORMATION ACT DEADLINES FOR GOVERNMENTAL BODIES. . . . . 305
PART NINE:
NOTICE STATEMENT TO PERSONS WHOSE PROPRIETARY INFORMATION

IS REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
PART TEN :
TEXAS GOVERNMENT CODE SECTION 552.024 PUBLIC ACCESS OPTION

FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
SUBJECT INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Appendix 23
Appendix 23
A PREFACE TO THE PUBLIC INFORMATION HANDBOOK

The Act. The Texas Public Information Act (the Public Information Act or the Act) gives the
public the right to request access to government information. Below is a description of the basic
procedures, rights and responsibilities under the Act.
Making a Request. The Act is triggered when a person submits a written request to a governmental
body. The request must ask for records or information already in existence. The Act does not
require a governmental body to create new information, to do legal research, or to answer questions.
In preparing a request, a person may want to ask the governmental body what information is
available.
Charges to the Requestor. A person may ask to view the information, get copies of the
information, or both. If a request is for copies of information, the governmental body may charge
for the copies. If a request is only for an opportunity to inspect information, then usually the
governmental body may not impose a charge on the requestor. However, under certain limited
circumstances a governmental body may impose a charge for access to information. All charges
imposed by a governmental body for copies or for access to information must comply with the rules
prescribed by the Office of the Attorney General (OAG), unless another statute authorizes an
agency to set its own charges.
Exceptions to the Act. Although the Act makes most government information available to the
public, some exceptions exist. If an exception might apply and the governmental body wishes to
withhold the information, the governmental body generally must, within ten business days of
receiving the open records request, refer the matter to the OAG for a ruling on whether an exception
applies. If the OAG rules that an exception applies, the governmental body will not release the
information. If a governmental body improperly fails to release information, the Act authorizes the
requestor or the OAG to file a civil lawsuit to compel the governmental body to release the
information.
Questions or Complaints. To reach the OAGs Open Government Hotline, call toll-free
(877) 673-6839 (877-OPEN TEX). Hotline staff can answer questions about the proper procedures
for using and complying with the Act and can assist both governmental bodies and people requesting
information from a governmental body. Hotline staff also review written complaints about alleged
violations of the Act. If a complaint relates to charges, contact the OAGs Cost Hotline toll-free
at (888) 672-6787 (888-ORCOSTS) or forward a written complaint. Certain violations of the Act
may involve possible criminal penalties. Those violations must be reported to the county attorney
or criminal district attorney.
Federal Agencies. The Act does not apply to the federal government or to any of its departments
or agencies. If you are seeking information from the federal government, the appropriate law is the
federal Freedom of Information Act (FOIA). FOIAs rules and procedures are different from those
of the Public Information Act.
-i-
Appendix 23
Rights of Requestors
All people who request public information have the right to:
Receive treatment equal to all other requestors

Receive a statement of estimated charges in advance
Choose whether to inspect the requested information, receive a copy of the information, or
both
Be notified when the governmental body asks the OAG for a ruling on whether the
information may or must be withheld
Be copied on the governmental bodys written comments to the OAG stating the reason why
the stated exceptions apply
Lodge a complaint with the OAG regarding any improper charges for responding to a public
information request
Lodge a complaint with the OAG or the county attorney or criminal district attorney, as
appropriate, regarding any alleged violation of the Act
Responsibilities of Requestors
All people who request public information have the responsibility to:
Submit a written request according to a governmental bodys reasonable procedures

Include enough description and detail of the requested information so the governmental body
can accurately identify and locate the requested items
Cooperate with the governmental bodys reasonable requests to clarify the type or amount
of information requested
Respond promptly in writing to all written communications from the governmental body
(including any written estimate of charges)
Make a timely payment for all valid charges
Keep all appointments for inspection of records or for pick-up of copies
Rights of Governmental Bodies

All governmental bodies responding to information requests have the right to:
Establish reasonable procedures for inspecting or copying information

Request and receive clarification of vague or overly broad requests
Request an OAG ruling regarding whether any information may or must be withheld
Receive timely payment for all copy charges or other charges
Obtain payment of overdue balances exceeding $100 or obtain a security deposit before
processing additional requests from the same requestor
Request a bond, prepayment or deposit if estimated costs exceed $100 (or, if the
governmental body has fewer than 16 employees, $50)
-ii-
Appendix 23
Responsibilities of Governmental Bodies

All governmental bodies responding to information requests have the responsibility to:
Treat all requestors equally

Go through open records training as required by law
Be informed of open records laws and educate employees on the requirements of those laws
Inform the requestor of cost estimates and any changes in the estimates
Confirm that the requestor agrees to pay the costs before incurring the costs
Provide requested information promptly
Inform the requestor if the information will not be provided within ten business days and
give an estimated date on which it will be provided
Cooperate with the requestor to schedule reasonable times for inspecting or copying
information
Follow attorney general rules on charges; do not overcharge on any items; do not bill for
items that must be provided without charge
Inform third parties if their proprietary information is being requested from the governmental
body
Inform the requestor when the OAG has been asked to rule on whether information may or
must be withheld
Copy the requestor on written comments submitted to the OAG stating the reason why the
stated exceptions apply
Comply with any OAG ruling on whether an exception applies or file suit against the OAG
within 30 days
Respond in writing to all written communications from the OAG regarding complaints about
violations of the Act
This Handbook is available on the OAGs website at http://www.texasattorneygeneral.gov. The

website also provides access to the following:
Attorney General Opinions dating from 1939 through the present;

all formal Open Records Decisions (ORDs); and
most informal Open Records letter rulings (ORLs) issued since January 1989.
Additional tools found on the site include the Open Meetings Handbook, the text of the Public
Information and Open Meetings Acts, and other valuable publications and resources for
governmental bodies and citizens.
-iii-
Appendix 23
The following is a list of telephone numbers that may be helpful to those needing answers to open
government questions.
Open Government Hotline
for questions regarding the Act and
the Texas Open Meetings Act
TOLL-FREE
or
(877) OPEN TEX

(512) 478-6736
Cost Hotline
for questions regarding charges under the Act
TOLL-FREE
or
(888) ORCOSTS
(512) 475-2497
Freedom of Information Foundation

for questions regarding FOIA
(800) 580-6651
State Library and Archives Commission

Records Management Assistance
for records retention questions
(512) 421-7200
U.S. Department of Education

Family Policy Compliance Office
for questions regarding FERPA and education records
(202) 260-3887
U.S. Department of Health and Human Services

(800) 368-1019
Office for Civil Rights
for questions regarding the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) and protected health information
-iv-
Appendix 23
How the Public Information Act Works
Note on Terminology
In previous publications and rulings, the OAG has referred to chapter 552 of the Government Code
as the Open Records Act. The OAG, in conformity with the statute, has adopted the term Public
Information Act to refer to the provisions of chapter 552. However, the OAG will continue, in this
Handbook and elsewhere, to use the term open records in other contexts, such as open records
request and open records decision.
The
symbol is used throughout the Handbook to indicate sections that discuss significant
changes in the law that have occurred since publication of the 2012 Handbook.
PART ONE: HOW THE PUBLIC INFORMATION ACT WORKS

I.
OVERVIEW
A.
Historical Background
The Texas Public Information Act (the Public Information Act or the Act) was adopted in 1973
by the reform-minded Sixty-third Legislature.1 The Sharpstown scandal, which occurred in 1969
and came to light in 1971, provided the motivation for several enactments opening up government
to the people.2
The Act was initially codified as V.T.C.S. article 6252-17a, which was repealed in 19933 and
replaced by the Public Information Act now codified in the Texas Government Code at chapter 552.4
The codification of the Act was a nonsubstantive revision.5
B.
Policy; Construction
The preamble of the Public Information Act is codified at section 552.001 of the Government Code.
It declares the basis for the policy of open government expressed in the Public Information Act. It
finds that basis in the American constitutional form of representative government and the
principle that government is the servant and not the master of the people. It further explains this
principle in terms of the need for an informed citizenry:
Act of May 19, 1973, 63rd Leg., R.S., ch. 424, 1973 Tex. Gen. Laws 1112.
See generally Mutscher v. State, 514 S.W .2d 905 (Tex. Crim. App. 1974) (summarizing events of Sharpstown
scandal); see also Sharpstown Stock-Fraud Scandal, Handbook of Texas Online, published by the Texas State
Historical Association, at http://www.tshaonline.org/handbook/online/articles/mqs01.
Act of May 4, 1993, 73rd Leg., R.S., ch. 268, 46, 1993 Tex. Gen. Laws 583, 986.
2014 Public Information Handbook Office of the Attorney General

1
Appendix 23
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 purpose of the Public Information Act is to maintain the peoples control over the instruments
they have created. The Act requires the attorney general to construe the Act liberally in favor of
open government.6
C.
Attorney General to Maintain Uniformity in Application, Operation and

Interpretation of the Act
Section 552.011 of the Government Code authorizes the attorney general to prepare, distribute and
publish materials, including detailed and comprehensive written decisions and opinions, in order to
maintain uniformity in the application, operation and interpretation of the Act.7
D.
Section 552.021
Section 552.021 of the Government Code is the starting point for understanding the operation of the
Public Information Act. It provides as follows:
Public information is available to the public at a minimum during the normal business
hours of the governmental body.
This provision tells us that information in the possession of a governmental body is generally
available to the public. Section 552.002(a) defines public information as:
information that is written, produced, collected, assembled, or maintained under a law or
ordinance or in connection with the transaction of official business:
(1)
by a governmental body;
(2)
for a governmental body and the governmental body:

Govt Code 552.001(b); see A & T Consultants v. Sharp, 904 S.W .2d 668, 675 (Tex. 1995); Abbott v. City of
Corpus Christi, 109 S.W .3d 113, 118 (Tex. App. Austin 2003, no pet.); Thomas v. Cornyn, 71 S.W .3d 473, 480
(Tex. App. Austin 2002, no pet.).
Govt Code 552.011.

2
Appendix 23
(C) spends or contributes public money for the purpose of writing, producing,
collecting, assembling, or maintaining the information; or
(3)
by an individual officer or employee of a governmental body in the officers or

employees official capacity and the information pertains to official business of the
governmental body.8
If the governmental body wishes to withhold information from a member of the public, it must show
that the requested information is within at least one of the exceptions to required public disclosure.9
Subchapter C of the Act, sections 552.101 through 552.154, lists the specific exceptions to required
public disclosure; these exceptions are discussed in Part Two of this Handbook.
E.
Open Records Training
The Act applies to every governmental body in Texas, yet prior to 2006 there was no uniform
requirement or mechanism for public officials to receive training in how to comply with the law.
Attorney General Greg Abbott called on the Seventy-ninth Legislature to enact legislation to
require public officials to obtain training in open government laws in an effort to promote open
government and increase compliance with our Sunshine Laws. The legislature responded by
passing section 552.012 of the Government Code, which requires public officials to receive training
in the requirements of the Open Meetings and Public Information Acts. The training requirement
of the Public Information Act, codified at section 552.012, provides:
(a) This section applies to an elected or appointed public official who is:
(1)
a member of a multimember governmental body;
(2)
the governing officer of a governmental body that is headed by a single officer

rather than by a multimember governing body; or
(3)
the officer for public information of a governmental body, without regard to

whether the officer is elected or appointed to a specific term.
(b) Each public official shall complete a course of training of not less than one and not
more than two hours regarding the responsibilities of the governmental body with
which the official serves and its officers and employees under this chapter not later
than the 90th day after the date the public official:
(1)
takes the oath of office, if the person is required to take an oath of office to
assume the persons duties as a public official; or
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified as an amendment to Govt Code 552.002(a)).
Open Records Decision No. 363 (1983) (information is public unless it falls within specific exception).

3
Appendix 23
(2)
otherwise assumes the persons duties as a public official, if the person is not
required to take an oath of office to assume the persons duties.
(c) A public official may designate a public information coordinator to satisfy the training
requirements of this section for the public official if the public information coordinator
is primarily responsible for administering the responsibilities of the public official or
governmental body under this chapter. Designation of a public information
coordinator under this subsection does not relieve a public official from the duty to
comply with any other requirement of this chapter that applies to the public official.
The designated public information coordinator shall complete the training course
regarding the responsibilities of the governmental body with which the coordinator
serves and of its officers and employees under this chapter not later than the 90th day
after the date the coordinator assumes the persons duties as coordinator.
(d) The attorney general shall ensure that the training is made available. The office of the
attorney general may provide the training and may also approve any acceptable course
of training offered by a governmental body or other entity. The attorney general shall
ensure that at least one course of training approved or provided by the attorney general
is available on videotape or a functionally similar and widely available medium at no
cost. The training must include instruction in:
(1)
the general background of the legal requirements for open records and public
information;
(2)
the applicability of this chapter to governmental bodies;
(3)
procedures and requirements regarding complying with a request for information

under this chapter;
(4)
the role of the attorney general under this chapter; and
(5)
penalties and other consequences for failure to comply with this chapter.
(e) The office of the attorney general or other entity providing the training shall provide
a certificate of course completion to persons who complete the training required by this
section. A governmental body shall maintain and make available for public inspection
the record of its public officials or, if applicable, the public information coordinators
completion of the training.
(f) Completing the required training as a public official of the governmental body satisfies
the requirements of this section with regard to the public officials service on a
committee or subcommittee of the governmental body and the public officials ex officio
service on any other governmental body.

4
Appendix 23
(g) The training required by this section may be used to satisfy any corresponding training
requirements concerning this chapter or open records required by law for a public
official or public information coordinator. The attorney general shall attempt to
coordinate the training required by this section with training required by other law to
the extent practicable.
(h) A certificate of course completion is admissible as evidence in a criminal prosecution
under this chapter. However, evidence that a defendant completed a course of training
offered under this section is not prima facie evidence that the defendant knowingly
violated this chapter.
Minimum Training Requirement: The law requires elected and appointed officials to attend, at
a minimum, a one-hour educational course on the Public Information Act. This is a one-time-only
training requirement; no refresher courses are required.
Compliance Deadlines: The law took effect on January 1, 2006. Officials who were in office
before January 1, 2006 had one yearuntil January 1, 2007to complete the required training.
Officials who were elected or appointed after January 1, 2006, have 90 days within which to
complete the required training.
Who Must Obtain the Training: The requirement applies to all governmental bodies subject to
the Act. It requires the top elected and appointed officials from governmental bodies subject to these
laws to complete a training course on the Act. Alternatively, public officials may designate a public
information coordinator to attend training in their place so long as the designee is the person
primarily responsible for the processing of open records requests for the governmental body. It is
presumed most governmental bodies already have a designated public information coordinator;
therefore, officials may choose to opt out of the training provided they designate their public
information coordinator to receive the training in their place. However, officials are encouraged to
complete the required training, and designation of a public information coordinator to complete
training on their behalf does not relieve public officials of the responsibility to comply with the law.
May Not Opt Out of Training if Required by Other Law: Open government training is already
required for the top officials of many state agencies under the Sunset Laws. The opt-out provisions
of the training requirement would not apply to officials who are already required by another law to
receive open government training.
Judicial Officials and Employees: Judicial officials and employees do not need to attend training
regarding the Act because public access to information maintained by the judiciary is governed by
Rule 12 of the Judicial Administration Rules of the Texas Supreme Court and by other applicable
laws and rules.10
10
Govt Code 552.0035.

5
Appendix 23
Training Curriculum: The basic topics to be covered by the training include:

1. the general background of the legal requirements for public information;
2. the applicability of the Act to governmental bodies;
3. procedures and requirements regarding complying with open records requests;
4. the role of the attorney general under the Act; and
5. penalties and other consequences for failure to comply with the Act.
Training Options: The law contains provisions to ensure that training is widely available and free
training courses are available so all officials in the state can have easy access to the training. The
OAG provides training video instruction and live training courses.
Governmental Entities May Provide Training: Governmental entities that already provide their
own internal training on the Act may continue to do so provided the curriculum meets the minimum
requirements set forth by section 552.012 and is reviewed and approved by the OAG.
Other Entities May Provide Training: Officials may obtain the required training from any entity
that offers a training course that has been reviewed and approved by the OAG. This encompasses
courses by various interest groups, professional organizations, and continuing education providers.
Evidence of Course Completion: The trainer is required to provide the participant with a certificate
of course completion. The official or public information coordinators governmental body is then
required to maintain the certificate and make it available for public inspection. The OAG does not
maintain certificates for governmental bodies.
No Penalty for Failure to Receive Training: The purpose of the law is to foster open government
by making open government education a recognized obligation of public service. The purpose is not
to create a new civil or criminal violation, so there are no specific penalties for failure to comply
with the mandatory training requirement. Despite the lack of a penalty provision, officials should
be cautioned that a deliberate failure to attend training may result in an increased risk of criminal
conviction should they be accused of violating the Act.
Training Requirements Will Be Harmonized: To avoid imposing duplicate training requirements
on public officials, the attorney general is required to harmonize the training required by section
552.012 with any other statutory training requirements that may be imposed on public officials.
Please visit the attorney generals website at http://www.texasattorneygeneral.gov for more
information on section 552.012.

6
Appendix 23
II. ENTITIES SUBJECT TO THE PUBLIC INFORMATION ACT

The Public Information Act applies to information of every governmental body. Governmental
body is defined in section 552.003(1)(A) of the Government Code to mean:
(i)
a board, commission, department, committee, institution, agency, or office that is

within or is created by the executive or legislative branch of state government and
that is directed by one or more elected or appointed members;
(ii)
(iii) a municipal governing body in the state;

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

(vii) a county board of education;
(viii) the governing board of a special district;
(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water
(x)
(xi) a nonprofit corporation that is eligible to receive funds under the federal community
services block grant program and that is authorized by this state to serve a
geographic area of the state; and
(xii) the part, section, or portion of an organization, corporation, commission, committee,
institution, or agency that spends or that is supported in whole or in part by public
funds[.]
The judiciary is expressly excluded from the definition of governmental body.11 The required
public release of records of the judiciary is governed by Rule 12 of the Texas Rules of Judicial
Administration.12
11
Govt Code 552.003(1)(B).
12
Rule 12 of the Texas Rules of Judicial Administration is located in Part Seven of this Handbook.

7
Appendix 23
An entity that does not believe it is a governmental body within this definition is advised to make
a timely request for a decision from the attorney general under subchapter G of the Act if there has
been no previous determination regarding this issue and it wishes to withhold the requested
information.13
A. State and Local Governmental Bodies

The definition of the term governmental body encompasses all public entities in the executive and
legislative branches of government at the state and local levels. Although a sheriffs office, for
example, is not within the scope of section 552.003(1)(A)(i)(xi), it is supported by public funds and
is therefore a governmental body within section 552.003(1)(A)(xii).14
B. Private Entities that are Supported by or Spend Public Funds

An entity that is supported in whole or in part by public funds or that spends public funds is a
governmental body under section 552.003(1)(A)(xii) of the Government Code. Public funds are
funds of the state or of a governmental subdivision of the state.15 The Public Information Act does
not apply to private persons or businesses simply because they provide goods or services under a
contract with a governmental body.16 An entity that receives public funds is not a governmental body
if its agreement with the government imposes a specific and definite obligation . . . to provide a
measurable amount of service in exchange for a certain amount of money as would be expected in
a typical arms-length contract for services between a vendor and purchaser.17
For example, in Kneeland v. Natl Collegiate Athletic Assn,18 an appellate court examined the
financial relationships between Texas public universities and the National Collegiate Athletic
Association (NCAA) to determine whether the NCAA was a governmental body within the
statutory predecessor to section 552.003(1)(A)(xii). Finding that its receipt of dues, assessments of
television rights fees, and unreimbursed expenses from state universities constituted general support
with public funds, the lower court had concluded the NCAA was subject to the Act. The appellate
court reversed, holding the NCAA fell outside the definition of a governmental body because the
public university members received a quid pro quo in the form of specific, measurable services.19
13
See Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W .2d 353, 362 (Tex. App. W aco 1998, pet. denied)
(entity does not admit it is governmental body by virtue of request for opinion from attorney general).
14
Open Records Decision No. 78 (1975) (discussing statutory predecessor to Govt Code 552.003(1)(A)(xii)); see
Permian Report v. Lacy, 817 S.W .2d 175 (Tex. App. El Paso 1991, writ denied) (suggesting county clerks office
is subject to Act as agency supported by public funds).
15
Govt Code 552.003(5).
16
Open Records Decision No. 1 (1973) (bank that holds funds of governmental body is not subject to Act).
17
Open Records Decision No. 228 at 2 (1979); see also Attorney General Opinion JM-821 (1987).
18
Kneeland v. Natl Collegiate Athletic Assn, 850 F.2d 224 (5th Cir. 1988), revg 650 F. Supp. 1047 (W.D. Tex.
1986), cert. denied, 488 U.S. 1042 (1989).
19
See also A. H. Belo Corp. v. S. Methodist Univ., 734 S.W .2d 720 (Tex. App. Dallas 1987, writ denied) (funds
distributed by Southwest Conference to private university members were not public funds; thus, private universities
were not governmental bodies).

8
Appendix 23
If, however, a governmental body makes an unrestricted grant of funds to a private entity to use for
its general support, the private entity is a governmental body subject to the Public Information Act.20
If a distinct part of an entity is supported by public funds within section 552.003(1)(A)(xii) of the
Government Code, the records relating to that part or section of the entity are subject to the Public
Information Act, but records relating to parts of the entity not supported by public funds are not
subject to the Act.21
The following formal decisions and case found certain private entities to be governmental bodies
under section 552.003(1)(A)(xii) or its statutory predecessor:
Attorney General Opinion JM-821 (1987) a volunteer fire department receiving general
support from a fire prevention district;
Open Records Decision No. 621 (1993) the Arlington Chamber of Commerce and the
Arlington Economic Development Foundation, through which the chamber of commerce
receives support of public funds;
Open Records Decision No. 602 (1992) the portion of the Dallas Museum of Art that is
supported by public funds;
Open Records Decision No. 601 (1992) the El Paso Housing Finance Corporation, established
pursuant to chapter 394 of the Local Government Code and supported by public funds;
Open Records Decision No. 273 (1981) a search advisory committee that was established by
a board of regents to recommend candidates for university president and that expended public
funds;
Open Records Decision No. 228 (1979) a private, nonprofit corporation, with the purpose of
promoting the interests of the area, that received general support from the city;
Open Records Decision Nos. 201, 195 (1978) entities officially designated as community
action agencies under the federal Economic Opportunity Act of 196422 and supported by funds
of the state or a political subdivision; and
Greater Houston Pship v. Abbott, No. 03-11-00130-CV, 2013 WL 491016 (Tex. App.Austin
Jan. 31, 2013, no pet. h.) the Greater Houston Partnership is supported by public funds, shares
common purposes with the City of Houston, and performs tasks that are traditional government
services.
20
Open Records Decision No. 228 (1979).
21
22
42 U.S.C. 2781 (repealed August 13, 1981); see 42 U.S.C. 99129926 (concerning Community Services Block
Grant Program).

9
Appendix 23
The following decisions and case found other private entities not to be governmental bodies under
the statutory predecessor to section 552.003(1)(A)(xii):
Open Records Decision No. 602 (1992) the portion of the Dallas Museum of Art not
supported by public funds, in particular, a specific privately donated art collection;
Open Records Decision No. 569 (1990) the Fiesta San Antonio Commission, which leases
facilities from the city and receives permits and licenses to use public streets for parades and
other events;
Open Records Decision No. 510 (1988) a private university whose students receive state
tuition grants;
Open Records Decision No. 317 (1982) task forces appointed by a mayor-elects campaign
staff to examine the city government; and
Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353 (Tex. App.Waco 1998,
pet. denied) a nonprofit organization that issues revenue bonds to purchase student loans
pursuant to the citys request is not a governmental body subject to Act; the fact that the city
approves the organizations bond issuance does not amount to being supported by public funds.
C. Certain Property Owners Associations Subject to Act

A property owners association is subject to [the Act] in the same manner as a
governmental body
(1) if:
(A) membership in the property owners association is mandatory for owners or for
a defined class of owners of private real property in a defined geographic area
in a county with a population of 2.8 million or more or in a county adjacent to
a county with a population of 2.8 million or more;
(B) the property owners association has the power to make mandatory special
assessments for capital improvements or mandatory regular assessments; and
(C) the amount of the mandatory special or regular assessments is or has ever
been based in whole or in part on the value at which the state or a local
governmental body assesses the property for purposes of ad valorem taxation
under Section 20, Article VIII, Texas Constitution; or

10
Appendix 23
(2) if the property owners association:

(A) provides maintenance, preservation, and architectural control of residential and
commercial property within a defined geographic area in a county with a
population of 2.8 million or more or in a county adjacent to a county with a
population of 2.8 million or more; and
(B) is a corporation that:
(i)
is governed by a board of trustees who may employ a general manager

to execute the associations bylaws and administer the business of the
corporation;
(ii)
does not require membership in the corporation by the owners of the

property within the defined area; and
(iii)
was incorporated before January 1, 2006.
The only county in Texas with a population of 2.8 million or more is Harris County. The counties
adjoining Harris County are Waller, Fort Bend, Brazoria, Galveston, Chambers, Liberty, and
Montgomery. Thus, property owners associations located in those counties and otherwise within
the parameters of section 552.0036 are considered to be governmental bodies for purposes of the
Act.
D. A Governmental Body Holding Records for Another Governmental Body

One governmental body may hold information on behalf of another governmental body. For
example, state agencies may transfer noncurrent records to the Records Management Division of the
Texas State Library and Archives Commission for storage.23 State agency records held by the state
library under the state records management program should be requested from the originating state
agency, not the state library. The governmental body by or for which information is collected,
assembled, or maintained pursuant to section 552.002(a) retains ultimate responsibility for disclosing
or withholding information in response to a request under the Public Information Act, even though
another governmental body has physical custody of it.24
E. Private Entities Holding Records for Governmental Bodies

On occasion, when a governmental body has contracted with a private consultant to prepare
information for the governmental body, the consultant keeps the report and data in the consultants
office, and the governmental body reviews it there. Although the information is not in the physical
custody of the governmental body, the information is in the constructive custody of the governmental
23
Open Records Decision No. 617 (1993); see Open Records Decision No. 674 (2001).
24

11
Appendix 23
body and is therefore subject to the Act.25 The private consultant is acting as the governmental
bodys agent in holding the records. Section 552.002(a) of the Act was amended in 1989 to codify
this interpretation of the Act.26
The Eighty-third Legislature amended section 552.002.27 The definition of public information now
reads as follows:
(a)
information that is written, produced, collected, assembled, or maintained under a

law or ordinance or in connection with the transaction of official business:
(1)
(2)

(C) spends or contributes public money for the purpose of writing, producing,
collecting, assembling, or maintaining the information; or
(3)
by an individual officer or employee of a governmental body in the officers or

employees official capacity and the information pertains to official business of
the governmental body
(a-1) Information is in connection with the transaction of official business if the

information is created by, transmitted to, received by, or maintained by an officer or
employee of the governmental body in the officers or employees official capacity, or
a person or entity performing official business or a governmental function on behalf
of a governmental body, and pertains to official business of the governmental body.28
The following decisions recognize that various records held for governmental bodies by private
entities are subject to the Act:
Open Records Decision No. 585 (1991) the city manager may not contract away the right to
inspect the list of applicants maintained by a private consultant for the city;
Open Records Decision No. 499 (1988) the records held by a private attorney employed by
a municipality that relate to legal services performed at the request of the municipality;
25
26
Act of May 29, 1989, 71st Leg., R.S., ch. 1248, 9, 1989 Tex. Gen. Laws 4996, 5023.
27
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified as an amendment to Govt Code 552.002).
28
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified as an amendment to Govt Code 552.002(a)).

12
Appendix 23
Open Records Decision No. 462 (1987) records regarding the investigation of a university
football program prepared by a law firm on behalf of the university and kept at the law firms
office; and
Open Records Decision No. 437 (1986) the records prepared by bond underwriters and
attorneys for a utility district and kept in an attorneys office.29
The Eighty-third Legislature added section 2252.907 of the Government Code.30 Section 2252.907
contains specific requirements for a contract between a state governmental entity and a
nongovernmental vendor involving the exchange or creation of public information.
F. Judiciary Excluded from the Public Information Act

Section 552.003(1)(B) of the Government Code excludes the judiciary from the Public Information
Act. Section 552.0035 of the Government Code specifically provides that access to judicial records
is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.31
(See Part Seven of this Handbook for Rule 12 of the Texas Rules of Judicial Administration.) This
provision, however, expressly provides that it does not address whether particular records are judicial
records.
The purposes and limits of section 552.003(1)(B) were discussed in Benavides v. Lee.32 At issue in
that case were applications for the position of chief juvenile probation officer submitted to the Webb
County Juvenile Board. The court determined that the board was not an extension of the judiciary
for purposes of the Public Information Act, even though the board consisted of members of the
judiciary and the county judge. The court stated as follows:
The Board is not a court. A separate entity, the juvenile court, not the Board, exists to adjudicate
matters concerning juveniles. Nor is the Board directly controlled or supervised by a court.
Moreover, simply because the Legislature chose judges as Board members, art. 5139JJJ, 1,
does not in itself indicate they perform on the Board as members of the judiciary. . . .
29
See also Baytown Sun v. City of Mont Belvieu, 145 S.W .3d 268 (Tex. App. Houston [14th Dist.] 2004, no pet.)
(municipality had right of access to employee salary information of company it contracted with to manage
recreational complex); Open Records Decision No. 585 (1991) (overruling Open Records Decision Nos. 499 (1988),
462 (1987), 437 (1986) to extent they suggest governmental body can waive its right of access to information
gathered on its behalf).
30
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified at Govt Code 2252.907).
31
Govt Code 552.0035; see R. Jud. Admin. 12; see also, e.g., Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex.
App. Houston [1st Dist.] 1989, no writ) (public has right to inspect and copy judicial records subject to courts
inherent power to control public access to its records); Attorney General Opinion DM-166 (1992); Open Records
Decision No. 25 (1974).
32
Benavides v. Lee, 665 S.W.2d 151 (Tex. App. San Antonio 1983, no writ).

13
Appendix 23
[C]lassification of the Board as judicial or not depends on the functions of the Board, not on
members service elsewhere in government.33
The decisions made by the board were administrative, not judicial, and the selection of a probation
officer was part of the boards administration of the juvenile probation system, not a judicial act by
a judicial body. The court continued:
The judiciary exception, 2(1)(G) [now section 552.003(1)(B) of the Government Code], is
important to safeguard judicial proceedings and maintain the independence of the judicial branch
of government, preserving statutory and case law already governing access to judicial records.
But it must not be extended to every governmental entity having any connection with the
judiciary.34
The Texas Supreme Court also addressed the judiciary exception in Holmes v. Morales.35 In that
case, the court found that judicial power as provided for in article V, section 1, of the Texas
Constitution embraces powers to hear facts, to decide issues of fact made by pleadings, to decide
questions of law involved, to render and enter judgment on facts in accordance with law as
determined by the court, and to execute judgment or sentence.36 Because the court found the Harris
County District Attorney did not perform these functions, it held the district attorney is not a member
of the judiciary, but is a governmental body within the meaning of the Public Information Act.
In Open Records Decision No. 657 (1997), the attorney general concluded telephone billing records
of the Supreme Court did not relate to the exercise of judicial powers but rather to routine
administration and were not records of the judiciary for purposes of the Public Information Act.
The Texas Supreme Court subsequently overruled Open Records Decision No. 657 (1997), finding
the court was not a governmental body under the Act and its records were therefore not subject to
the Act.37
The State Bar of Texas is a public corporation and an administrative agency of the judicial
department of government.38 Section 81.033 of the Government Code provides that, with certain
exceptions, all records of the State Bar are subject to the Public Information Act.39
33
Benavides v. Lee, 665 S.W.2d 151, 15152 (Tex. App.San Antonio 1983, no writ) (footnote omitted).
34
Benavides v. Lee, 665 S.W.2d 151, 152 (Tex. App. San Antonio 1983, no writ).
35
Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).
36
Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996).
37
Order and Opinion Denying Request Under Open Records Act, No. 97-9141, 1997 W L 583726 (Tex. August 21,
1997) (not reported in S.W.2d).
38
Govt Code 81.011(a); see Open Records Decision No. 47 (1974) (records of state bar grievance committee were
confidential pursuant to Texas Supreme Court rule; not deciding whether state bar was part of judiciary).
39
Compare Open Records Decision No. 604 (1992) (considering request for list of registrants for Professional
Development Programs) with In re Nolo Press/Folk Law, Inc., 991 S.W .2d 768 (Tex. 1999) (Unauthorized Practice
of Law Committee of state bar is judicial agency and therefore subject to Rule 12 of Texas Rules of Judicial
Administration).

14
Appendix 23
The following decisions address the judiciary exclusion:

Open Records Decision No. 671 (2001) the information contained in the weekly index reports
produced by the Ellis County District Clerks office is derived from a case disposition database
that is collected, assembled, or maintained . . . for the judiciary. Govt Code 552.0035(a).
Therefore, the information contained in weekly index reports is not public information under the
Act;
Open Records Decision No. 646 (1996) a community supervision and corrections department
is a governmental body and is not part of the judiciary for purposes of the Public Information
Act. Administrative records such as personnel files and other records reflecting the day-to-day
management of a community supervision and corrections department are subject to the Public
Information Act.40 On the other hand, specific records regarding individuals on probation and
subject to the direct supervision of a court that are held by a community supervision and
corrections department are not subject to the Public Information Act because such records are
held on behalf of the judiciary;
Open Records Decision No. 610 (1992) the books and records of an insurance company
placed in receivership pursuant to article 21.28 of the Insurance Code are excluded from the
Public Information Act as records of the judiciary;
Open Records Decision No. 572 (1990) certain records of the Bexar County Personal Bond
Program are within the judiciary exclusion;
Open Records Decision No. 513 (1988) records held by a district attorney on behalf of a grand
jury are in the grand jurys constructive possession and are not subject to the Public Information
Act. However, records a district attorney collects, prepares, and submits to grand jury are not
in the constructive possession of the grand jury when that information is held by the district
attorney.
Open Records Decision No. 204 (1978) information held by a county judge as a member of
the county commissioners court is subject to the Public Information Act; and
Open Records Decision No. 25 (1974) the records of a justice of the peace are not subject to
the Public Information Act but may be inspected under statutory and common-law rights of
access.
40
But see Govt Code 76.006(g) (document evaluating performance of officer of community supervision and
corrections department who supervises defendants placed on community supervision is confidential).

15
Appendix 23
III. INFORMATION SUBJECT TO THE PUBLIC INFORMATION

ACT
A. Public Information is Contained in Records of All Forms
Section 552.002(b) states that the Public Information Act applies to recorded information in
practically any medium, including: paper; film; a magnetic, optical, solid state or other device that
can store an electronic signal; tape; Mylar; and any physical material on which information may be
recorded, including linen, silk, and vellum.41 Section 552.002(c) specifies that [t]he general forms
in which the media containing public information exist include a book, paper, letter, document,
e-mail, Internet posting, text message, instant message, other electronic communication, printout,
photograph, film, tape, microfiche, microfilm, photostat, sound recording, map, and drawing and a
voice, data, or video representation held in computer memory.42
B. Exclusion of Tangible Items

Despite the assumption in Open Records Decision No. 252 (1980) that the Public Information Act
applies to physical evidence, the prevailing view is that tangible items such as a tool or a key are not
information within the Act, even though they may be copied or analyzed to produce information.
In Open Records Decision No. 581 (1990), the attorney general dealt with a request for the source
code, documentation, and computer program documentation standards of computer programs used
by a state university. The requested codes, documentation, and documentation standards contained
security measures designed to prevent unauthorized access to student records. The attorney general
noted that the sole significance of the computer source code, documentation, and documentation
standards was as a tool for the storage, manipulation, and security of other information.43 While
acknowledging the comprehensive scope of the term information, the attorney general nevertheless
determined that the legislature could not have intended that the Public Information Act compromise
the physical security of information management systems or other government property.44 The
attorney general concluded that information used solely as a tool to maintain, manipulate, or
41
Act of May 27, 2013, 83rd Leg, R.S., S.B. 1368, 1 (to be codified as an amendment to Govt Code 552.002(b));
see alo Open Records Decision Nos. 660 (1999) (Section 52(a) of article III of Texas Constitution does not prohibit
Port of Corpus Christi Authority from releasing computer generated digital map), 492 (1988) (raw data collected
by outside consultant, but accessed by comptroller through data link and stored on comptrollers computer system),
432 (1985) (photographic negatives), 413 (1984) (sketches), 364 (1983) (videotapes), 352 (1982) (computer tapes),
32 (1974) (tape recordings).
42
Act of May 27, 2013, 83rd Leg, R.S., S.B. 1368, 1 (to be codified as an amendment to Govt Code 552.002(c)).
43
Open Records Decision No. 581 at 6 (1990).
44
Open Records Decision No. 581 at 56 (1990) (drawing comparison to door key, whose sole significance as
information is its utility as tool in matching internal mechanism of lock).

16
Appendix 23
protect public property was not the kind of information made public by the statutory predecessor to
section 552.021 of the Public Information Act.45
C. Personal Notes and E-mail in Personal Accounts or Devices

A few early decisions of the attorney general found certain personal notes of public employees were
not information collected, assembled, or maintained by governmental bodies pursuant to law or
ordinance or in connection with the transaction of official business.46 Thus, such personal notes
were not considered subject to the Public Information Act.47 Governmental bodies are advised to
use caution in relying on early open records decisions that address personal notes.
More recent decisions have concluded personal notes are not necessarily excluded from the
definition of public information and may be subject to the Act.48 The characterization of
information as public information under the Act is not dependent on whether the requested records
are in the possession of an individual, rather than a governmental body, or whether a governmental
body has a particular policy or procedure that establishes a governmental bodys access to the
information.49 If information was made, transmitted, maintained, or received in connection with a
governmental bodys official business, the mere fact that the governmental body does not possess
the information does not take the information outside the scope of the Act.50 The attorney general
has also determined in several informal letter rulings that e-mails concerning public business in a
public officials personal e-mail account are subject to the Act when the public official uses the
personal e-mail account to conduct public business.51 These more recent decisions and informal
45
Open Records Decision No. 581 at 6 (1990) (overruling in part Open Records Decision No. 401 (1983), which had
suggested implied exception to required public disclosure applied to requested computer programs); see also
Attorney General Opinion DM-41 (1991) (formatting codes are not information subject to Act).
46
Open Records Decision No. 77 (1975) (quoting statutory predecessor to Govt Code 552.021).
47
See Open Records Decision No. 116 (1975) (portions of desk calendar kept by governors aide comprising notes
of private activities and aides notes made solely for his own informational purposes are not public information);
see also Open Records Decision No. 145 (1976) (handwritten notes on university presidents calendar are not public
information).
48
See, e.g., Open Records Decision Nos. 635 (1995) (public officials or employees appointment calendar, including
personal entries, may be subject to Act), 626 (1994) (handwritten notes taken during oral interview by Texas
Department of Public Safety promotion board members are subject to Act), 450 (1986) (handwritten notes taken
by appraiser while observing teachers classroom performance are subject to Act), 120 (1976) (faculty members
written evaluations of doctoral students qualifying exam are subject to Act).
49
See Open Records Decision No. 635 at 3-4 (1995) (information does not fall outside definition of public
information in Act merely because individual member of governmental body possesses information rather than
governmental body as whole); see also Open Records Decision No. 425 (1985) (information sent to individual
school trustees homes was public information because it related to official business of governmental body)
(overruled on other grounds by Open Records Decision No. 439 (1986)).
50
See Open Records Decision No. 635 at 6-8 (1995) (information maintained on privately-owned medium and actually
used in connection with transaction of official business would be subject to Act).
51
See, e.g, Open Records Letter Nos. 2012-06843 (e-mails and text messages maintained in connection with transaction
of official business in personal accounts of public officials are subject to Act), 2012-02459 (although governmental
body claimed to have no right of access to cellular telephones containing requested text messages, text messages
maintained by individuals are subject to Act to extent they concern official business of governmental body).

17
Appendix 23
letter rulings construe section 552.002 of the Act, which the Eighty-third Legislature amended, along
with section 552.003, in 2013.
The Eighty-third Legislature amended the definition of public information in section 552.002 to
specifically include:
any electronic communication created, transmitted, received, or maintained on any device
if the communication is in connection with the transaction of official business.52
The Eighty-third Legislature further defined information . . . in connection with the transaction of
official business as:
information . . . created by, transmitted to, received by, or maintained by an officer or
employee of the governmental body in the officers or employees official capacity, or a
person or entity performing official business or a governmental function on behalf of a
governmental body, and pertains to official business of the governmental body.53
Adopting the attorney generals long-standing interpretation, the definition of public information
now takes into account the use of electronic devices and cellular phones by public employees and
officials in the transaction of official business.54 The Act does not distinguish between personal or
employer-issued devices, but rather focuses on the nature of the communication or document. If the
information was created, transmitted, received, or maintained in connection with the transaction of
official business, meaning, any matter over which a governmental body has any authority,
administrative duties, or advisory duties, the information constitutes public information subject to
disclosure under the Act.55
There are no cases or formal decisions applying these amendments to section 552.002 or 552.003.
D. Commercially Available Information

(a)
A governmental body is not required under this chapter to allow the inspection of or
to provide a copy of information in a commercial book or publication purchased or
acquired by the governmental body for research purposes if the book or publication
is commercially available to the public.
52
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified at Govt Code 552.002(a-2)).
53
54
55
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 2 (to be codified at Govt Code 552.003(2-a)).

18
Appendix 23
(b)
Although information in a book or publication may be made available to the public

as a resource material, such as a library book, a governmental body is not required
to make a copy of the information in response to a request for public information.
(c)
A governmental body shall allow the inspection of information in a book or

publication that is made part of, incorporated into, or referred to in a rule or policy
of a governmental body.
This section is designed to alleviate the burden of providing copies of commercially available books,
publications, and resource materials maintained by governmental bodies, such as telephone
directories, dictionaries, encyclopedias, statutes, and periodicals. Therefore, section 552.027
provides exemptions from the definition of public information under section 552.002 for
commercially available research material. However, pursuant to subsection (c) of section 552.027,
a governmental body must allow inspection of a publication that is made a part of, or referred to in,
a rule or policy of the governmental body.
IV. PROCEDURES FOR ACCESS TO PUBLIC INFORMATION

A. Informing the Public of Basic Rights and Responsibilities Under the Act
Section 552.205 of the Government Code requires the officer for public information of a
governmental body to display a sign, in the form required by the attorney general, that contains basic
information about the rights of a requestor, the responsibilities of a governmental body, and the
procedures for inspecting or obtaining a copy of public information under the Public Information
Act. The sign is to be displayed at one or more places in the administrative offices of the
governmental body where it is plainly visible to members of the public requesting information and
employees of the governmental body whose duties involve receiving or responding to requests under
the Act. The signs format as prescribed by the attorney general is available on the attorney generals
website. In addition, a chart outlining various deadlines to which governmental bodies are subject
can be found in Part Eight of this Handbook.
B. The Request for Public Information

A governmental body that receives a verbal request for information may require the requestor to
submit that request in writing because the governmental bodys duty under section 552.301(a) to
request a ruling from the attorney general arises only after it receives a written request.56 Open
Records Decision No. 654 (1997) held the Public Information Act did not require a governmental
body to respond to a request for information sent by electronic mail. However, the Seventy-fifth
Legislature amended section 552.301 by defining a written request for information to include a
request made in writing that is sent to the officer for public information, or the person designated by
56

19
Appendix 23
that officer, by electronic mail or facsimile transmission.57 Therefore, Open Records Decision
No. 654 (1997) is superseded by the 1997 amendment of section 552.301.
Generally, a request for information need not name the Act or be addressed to the officer for public
information.58 An overly technical reading of the Act does not effectuate the purpose of the Act; a
written communication that reasonably can be judged to be a request for public information is a
request for information under the Public Information Act.59 However, a request made by electronic
mail or facsimile transmission must be sent to the officer for public information or the officers
designee.60 Requests for a state agencys records that are stored in the Texas State Library and
Archives Commissions State and Local Records Management Division should be directed to the
originating agency, rather than to the state library.61
A governmental body must make a good faith effort to relate a request to information that it holds.62
A governmental body may ask a requestor to clarify a request for information if the request is
unclear.63 Section 552.222(b) provides that if a large amount of information has been requested, the
governmental body may discuss with the requestor how the scope of the request might be narrowed,
but the governmental body may not inquire into the purpose for which information will be used.64
Section 552.222 also provides that a request for information is considered withdrawn if the requestor
does not respond in writing to a governmental bodys written request for clarification or additional
information within 61 days.65 The governmental bodys written request for clarification or additional
information must include a statement as to the consequences of the failure by the requestor to timely
respond and, if the request for information includes the requestors mailing address, the request for
clarification must by sent by certified mail.66 When a governmental entity, acting in good faith,
requests clarification or narrowing of an unclear or overbroad request, the ten business day period
to request an attorney general ruling is measured from the date the requestor responds to the request
for clarification or narrowing.67 A governmental body may, however, make certain inquiries of a
requestor who seeks information relating to motor vehicle records to determine if the requestor is
authorized to receive the information under the governing statute.68 In addition, a governmental body
may make inquiries of a requestor in order to establish proper identification.69
57
Govt Code 552.301(c).
58
See Open Records Decision Nos. 497 at 3 (1988), 44 at 2 (1974).
59
60
61
62
63
Govt Code 552.222(b).
64
65
Govt Code 552.222(d).
66
Govt Code 552.222(e), (f).
67
City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010).
68
Govt Code 552.222(c) (referencing Transp. Code ch. 730).
69
Govt Code 552.222(a).

20
Appendix 23
It is implicit in several provisions of the Act that it applies only to information already in existence.70
Thus, the Act does not require a governmental body to prepare new information in response to a
request.71 Furthermore, the Act does not require a governmental body to inform a requestor if the
requested information comes into existence after the request has been made.72 Consequently, a
governmental body is not required to comply with a continuing request to supply information on a
periodic basis as such information is prepared in the future.73 Moreover, the Act does not require
a governmental body to prepare answers to questions or to do legal research.74 Section 552.227
states that [a]n officer for public information or the officers agent is not required to perform
general research within the reference and research archives and holdings of state libraries.
Section 552.232 provides for the handling of repetitious or redundant requests.75 Under this section,
a governmental body that receives a request for information for which it determines it has already
furnished or made copies available to the requestor upon payment of applicable charges under
Subchapter F may respond to the request by certifying to the requestor that it has already made the
information available to the person. The certification must include a description of the information
already made available; the date of the governmental bodys receipt of the original request for the
information; the date it furnished or made the information available; a certification that no changes
have been made to the information; and the name, title, and signature of the officer for public
information, or his agent, who makes the certification.
Section 552.0055 provides that a subpoena duces tecum or request for discovery issued in
compliance with a statute or rule of civil or criminal procedure is not considered to be a request for
information under the Public Information Act.
C. The Governmental Bodys Duty to Produce Public Information Promptly

The Act designates the chief administrative officer and each elected county officer as the officer for
public information for a governmental body.76 In general, the officer for public information must
protect public information and promptly make it available to the public for copying or inspecting.77
70
See Govt Code 552.002, .021, .227, .351.
71
A & T Consultants, Inc. v. Sharp, 904 S.W .2d 668, 676 (Tex. 1995); Fish v. Dallas Indep. Sch. Dist., 31 S.W .3d
678, 681 (Tex. App. Eastland 2000, pet. denied); Attorney General Opinion H-90 (1973); Open Records Decision
Nos. 452 at 23 (1986), 342 at 3 (1982), 87 (1975).
72
73
Attorney General Opinion JM-48 at 2 (1983); Open Records Decision Nos. 476 at 1 (1987), 465 at 1 (1987).
74
See Open Records Decision Nos. 563 at 8 (1990) (considering request for federal and state laws and regulations),
555 at 12 (1990) (considering request for answers to fact questions).
75
Govt Code 552.232.
76
See Govt Code 552.201, .202 (designating officer for public information and identifying department heads as
agents for that officer); see also Keever v. Finlan, 988 S.W .2d 300, 301 (Tex. App. Dallas 1999, pet. dismd)
(school district superintendent, rather than school board member, is chief administrative officer and custodian of
public records).
77
See Govt Code 552.203 (listing general duties of officer for public information).

21
Appendix 23
Section 552.221 specifies the duties of the officer for public information upon receiving a request
for public information. Section 552.221 reads in part:
(a)
An officer for public information of a governmental body shall promptly produce

public information for inspection, duplication, or both on application by any person
to the officer. In this subsection, promptly means as soon as possible under the
circumstances, that is, within a reasonable time, without delay.
(b)
An officer for public information complies with Subsection (a) by:

(1) providing the public information for inspection or duplication in the offices of the
governmental body; or
(2) sending copies of the public information by first class United States mail if the
person requesting the information requests that copies be provided and pays the
postage and any other applicable charges that the requestor has accrued under
Subchapter F.
Thus, in order to comply with section 552.221, a governmental body must either provide the
information for inspection or duplication in its offices or send copies of the information by first class
United States mail. The attorney general has determined that a public information officer does not
fulfill his or her duty under section 552.221 by simply referring a requestor to a governmental bodys
website for requested public information.78 A requestor may, however, agree to accept information
on a governmental bodys website in fulfillment of the request and, in that situation, the
governmental body must inform the requestor of the Internet address of the requested information.79
An officer for public information is not responsible for how a requestor uses public information or
for the release of information after it is removed from a record as a result of an update, a correction,
or a change of status of the person to whom the information pertains.80
The officer for public information must promptly produce public information in response to an
open records request.81 Promptly means that a governmental body may take a reasonable amount
of time to produce the information, but may not delay.82 It is a common misconception that a
governmental body may wait ten business days before releasing the information. In fact, as
discussed above, the requirement is to produce information promptly. What constitutes a
reasonable amount of time depends on the facts in each case. The volume of information requested
is highly relevant to what constitutes a reasonable period of time.83
78
79
80
Govt Code 552.204; Open Records Decision No. 660 at 4 (1999).
81
Govt Code 552.221(a); see Dominguez v. Gilbert, 48 S.W .3d 789, 792 (Tex. App. Austin 2001, no pet.); Open
Records Decision No. 665 (2000).
82
Govt Code 552.221(a); see Open Records Decision No. 467 at 6 (1987).
83

22
Appendix 23
If the request is to inspect the information, the Public Information Act requires only that the officer
in charge of public information make it available for review within the offices of the governmental
body.84 Temporarily transporting records outside the office for official use does not trigger a duty
to make the records available to the public wherever they may be.85
Subsection 552.221(c) states:
If the requested information is unavailable at the time of the request to examine because
it is in active use or in storage, the officer for public information shall certify this fact in
writing to the requestor and set a date and hour within a reasonable time when the
information will be available for inspection or duplication.
The following decisions discuss when requested information is in active use:
Open Records Decision No. 225 (1979) a secretarys handwritten notes are in active use while
the secretary is typing minutes of a meeting from them;
Open Records Decision No. 148 (1976) a faculty members file is not in active use the entire
time the members promotion is under consideration;
Open Records Decision No. 96 (1975) directory information about students is in active use
while the notice required by the federal Family Educational Rights and Privacy Act of 1974 is
being given; and
Open Records Decision No. 57 (1974) a file containing student names, addresses, and
telephone numbers is in active use during registration.
If an officer for public information cannot produce public information for inspection or duplication
within ten business days after the date the information is requested, section 552.221(d) requires the
officer to certify that fact in writing to the requestor and set a date and hour within a reasonable time
when the information will be available for inspection or duplication.
D. The Requestors Right of Access

The Public Information Act prohibits a governmental body from inquiring into a requestors reasons
or motives for requesting information. In addition, a governmental body must treat all requests for
information uniformly. Sections 552.222 and 552.223 provide as follows:
552.222. Permissible Inquiry by Governmental Body to Requestor
(a)
The officer for public information and the officers agent may not make an inquiry
84
85
Conely v. Peck, 929 S.W.2d 630, 632 (Tex. App. Austin 1996, no writ).

23
Appendix 23
of a requestor except to establish proper identification or except as provided by

Subsection (b) or (c).
(b)
If what information is requested is unclear to the governmental body, the

governmental body may ask the requestor to clarify the request. If a large amount
of information has been requested, the governmental body may discuss with the
requestor how the scope of a request might be narrowed, but the governmental body
may not inquire into the purpose for which information will be used.
(c)
If the information requested relates to a motor vehicle record, the officer for public
information or the officers agent may require the requestor to provide additional
identifying information sufficient for the officer or the officers agent to determine
whether the requestor is eligible to receive the information under Chapter 730,
Transportation Code. In this subsection, motor vehicle record has the meaning
assigned that term by Section 730.003, Transportation Code.
552.223. Uniform Treatment of Requests for Information

The officer for public information or the officers agent shall treat all requests for
information uniformly without regard to the position or occupation of the requestor, the
person on whose behalf the request is made, or the status of the individual as a member of
the media.
Although section 552.223 requires an officer for public information to treat all requests for
information uniformly, section 552.028 provides as follows:
(a)
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 individuals attorney when the
attorney is requesting information that is subject to disclosure under this chapter.
(b)
This section does not prohibit a governmental body from disclosing to an individual
described by Subsection (a)(1), or that individuals agent, information held by the
governmental body pertaining to that individual.
(c)
In this section, correctional facility means:

(1) a secure correctional facility, as defined by Section 1.07, Penal Code;
(2) a secure correctional facility and a secure detention facility, as defined by
Section 51.02, Family Code; and
(3) a place designated by the law of this state, another state, or the federal
government for the confinement of a person arrested for, charged with, or
convicted of a criminal offense.

24
Appendix 23
Under section 552.028, a governmental body is not required to comply with a request for information
from an inmate or his agent, other than the inmates attorney, even if the requested information
pertains to the inmate.86 While subsection (b) does not prohibit a governmental body from
complying with an inmates request, it does not mandate compliance.87
Generally, a requestor may choose to inspect or copy public information, or to both inspect and copy
public information.88 In certain circumstances, a governmental body may charge the requestor for
access to or copies of the requested information.
1. Right to Inspect
Generally, if a requestor chooses to inspect public information, the requestor must complete the
inspection within ten business days after the date the governmental body makes the information
available or the request will be withdrawn by operation of law.89 However, a governmental body is
required to extend the inspection period upon receiving a written request for additional time.90 If the
information is needed by the governmental body, the officer for public information may interrupt a
requestors inspection of public information.91 When a governmental body interrupts a requestors
inspection of public information, the period of interruption is not part of the ten business day
inspection period.92 A governmental body may promulgate policies that are consistent with the
Public Information Act for efficient, safe, and speedy inspection and copying of public information.93
2. Right to Obtain Copies
If a copy of public information is requested, a governmental body must provide a suitable copy . . .
within a reasonable time after the date on which the copy is requested.94 However, the Act does not
authorize the removal of an original copy of a public record from the office of a governmental
86
See Harrison v. Vance, 34 S.W .3d 660, 66263 (Tex. App. Dallas 2000, no pet.); Hickman v. Moya, 976 S.W .2d
360, 361 (Tex. App. W aco 1998, pet. denied); M oore v. Henry, 960 S.W.2d 82, 84 (Tex. App.Houston [1st
Dist.] 1996, no writ).
87
Moore v. Henry, 960 S.W .2d 82, 84 (Tex. App. Houston [1st Dist.] 1996, no writ); Open Records Decision
No. 656 at 3 (1997) (statutory predecessor to Govt Code 552.028 applies to request for voter registration
information under Elec. Code 18.008 when request is from incarcerated individual).
88
Govt Code 552.221, .225, .228, .230.
89
Govt Code 552.225(a); see also Open Records Decision No. 512 (1988) (statutory predecessor to Govt Code
552.225 did not apply to requests for copies of public information or authorize governmental body to deny
repeated requests for copies of public records).
90
91
92
93
Govt Code 552.230; see Attorney General Opinion JM-757 (1987) (governmental bodies may deny requests for
information when requests raise questions of safety or unreasonable disruption of business).
94

25
Appendix 23
body.95 If the requested records are copyrighted, the governmental body must comply with federal
copyright law.96
A governmental body may receive a request for a public record that contains both publicly available
and excepted information. In a decision that involved a document that contained both publicly
available information and information that was excepted from disclosure by the statutory predecessor
to section 552.111, the attorney general determined the Act did not permit the governmental body
to provide the requestor with a new document created in response to the request on which the
publicly available information had been consolidated and retyped, unless the requestor agreed to
receive a retyped document.97 Rather, the attorney general concluded that the statutory predecessor
to section 552.228 required the governmental body to make available to the public copies of the
actual public records the governmental body had collected, assembled, or maintained, with the
excepted information excised.98
The publics right to suitable copies of public information has been considered in the following
decisions:
Attorney General Opinion JM-757 (1987) a governmental body may refuse to allow members
of the public to duplicate public records by means of portable copying equipment when it is
unreasonably disruptive of working conditions, when the records contain confidential
information, when it would cause safety hazards, or when it would interfere with other persons
rights to inspect and copy records;
Open Records Decision No. 660 (1999) section 52(a) of article III of the Texas Constitution
does not prohibit the Port of Corpus Christi Authority from releasing a computer generated
digital map, created by the Port with public funds, in response to a request made under
chapter 552 of the Government Code;
Open Records Decision No. 633 (1995) a governmental body does not comply with the Public
Information Act by releasing to the requestor another record as a substitute for any specifically
requested portions of an offense report that are not excepted from required public disclosure,
unless the requestor agrees to the substitution;
Open Records Decision No. 571 (1990) the Public Information Act does not give a member
of the public a right to use a computer terminal to search for public records; and
95
Govt Code 552.226.
96
See Open Records Decision No. 660 at 5 (1999) (Federal Copyright Act may not be used to deny access to or
copies of the information sought by the requestor under the Public Information Act, but a governmental body may
place reasonable restrictions on use of copyrighted information consistent with rights of copyright owner).
97
98

26
Appendix 23
Open Records Decision No. 243 (1980) a governmental body is not required to compile or
extract information if the information can be made available by giving the requestor access to
the records themselves.99
E. Computer and Electronic Information

Section 552.228(b) provides:
If public information exists in an electronic or magnetic medium, the requestor may
request a copy in an electronic medium, such as on diskette or on magnetic tape. A
governmental body shall provide a copy in the requested medium if:
(1) the governmental body has the technological ability to produce a copy of the
requested information in the requested medium;
(2) the governmental body is not required to purchase any software or hardware to
accommodate the request; and
(3) provision of a copy of the information in the requested medium will not violate the
terms of any copyright agreement between the governmental body and a third
party.100
If a governmental body is unable to provide the information in the requested format for any of the
reasons described by section 552.228(b), the governmental body shall provide the information in
another medium that is acceptable to the requestor.101 A governmental body is not required to use
material provided by a requestor, such as a diskette, but rather may use its own supplies to comply
with a request.102
A request for public information that requires a governmental body to program or manipulate
existing data is not considered a request for the creation of new information.103 If a request for public
information requires programming or manipulation of data,104 and compliance with the request
is not feasible or will result in substantial interference with its ongoing operations,105 or the
information could be made available in the requested form only at a cost that covers the
programming and manipulation of data,106 a governmental body is required to provide the requestor
99
See also Open Records Decision Nos. 512 (1988), 465 (1987), 144 (1976).
100
101
102
103
Fish v. Dallas Indep. Sch. Dist., 31 S.W .3d 678, 68182 (Tex. App. Eastland 2000, pet. denied); see Govt Code
552.231; Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 23 (1986), 87 (1975).
104
Govt Code 552.231(a)(1); see Govt Code 552.003(2), (4) (defining manipulation and programming).
105
Govt Code 552.231(a)(2)(A).
106
Govt Code 552.231(a)(2)(B).

27
Appendix 23
with a written statement describing the form in which the information is available, a description of
what would be required to provide the information in the requested form, and a statement of the
estimated cost and time to provide the information in the requested form.107 The governmental body
shall provide the statement to the requestor within twenty days after the date the governmental body
received the request.108 If, however, the governmental body gives written notice within the twenty
days that additional time is needed, the governmental body has an additional ten days to provide the
statement.109 Once the governmental body provides the statement to the requestor, the governmental
body has no obligation to provide the requested information in the requested form unless within
thirty days the requestor responds to the governmental body in writing.110 If the requestor does not
respond within thirty days, the request is considered withdrawn.111
V.
DISCLOSURE TO SELECTED PERSONS
A. General Rule: Under the Public Information Act, Public Information is

Available to All Members of the Public
The Public Information Act states in several provisions that public information is available to the
people, the public, and any person.112 Thus, the Public Information Act deals primarily with
the general publics access to information; it does not, as a general matter, give an individual a
special right of access to information concerning that individual that is not otherwise public
information.113 Information that a governmental body collects, assembles or maintains is, in general,
either open to all members of the public or closed to all members of the public.
Additionally, section 552.007 prohibits a governmental body from selectively disclosing information
that is not confidential by law but that a governmental body may withhold under an exception to
disclosure. Section 552.007 provides as follows:
(a)
This chapter does not prohibit a governmental body or its officer for public
information from voluntarily making part or all of its information available to the
107
Govt Code 552.231(a), (b); see Fish v. Dallas Indep. Sch. Dist., 31 S.W .3d 678, 682 (Tex. App. Eastland 2000,
pet. denied); Open Records Decision No. 661 at 68 (1999).
108
109
110
Govt Code 552.231(d). See also Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 682 (Tex. App. Eastland
2000, pet. denied); Open Records Decision No. 661 (1999) (Govt Code 552.231 enables governmental body and
requestor to reach agreement as to cost, time and other terms of responding to request requiring programming or
manipulation of data).
111
Govt Code 552.231(d-1).
112
See, e.g., Govt Code 552.001, .021, .221(a). The Act does not require a requestor be a Texas resident or an
American citizen.
113
Open Records Decision No. 507 at 3 (1988); see also Attorney General Opinion JM-590 at 4 (1986); Open Records
Decision No. 330 at 2 (1982).

28
Appendix 23
public, unless the disclosure is expressly prohibited by law or the information is

confidential under law.
(b)
Public information made available under Subsection (a) must be made available to
any person.114
If, therefore, a governmental body releases to a member of the public nonconfidential information,
then the governmental body must release the information to all members of the public who request
it. For example, in rendering an open records decision under section 552.306, the attorney general
would not consider a governmental bodys claim that section 552.111 authorized the governmental
body to withhold a report from a requestor when the governmental body had already disclosed the
report to another member of the public.115
B. Some Disclosures of Information to Selected Individuals or Entities Do

Not Constitute Disclosures to the Public Under Section 552.007
As noted, the Public Information Act prohibits the selective disclosure of information to members
of the public. A governmental body may, however, have authority to disclose records to certain
persons or entities without those disclosures being voluntary disclosures to the public within the
meaning of section 552.007 of the Government Code. In these cases, the governmental body
normally does not waive applicable exceptions to disclosure by transferring or disclosing the records
to these specific persons or entities.
1. Special Rights of Access: Exceptions to Disclosure Expressly Inapplicable to a Specific
Class of Persons
a. Special Rights of Access Under the Public Information Act
The following provisions in the Public Information Act provide an individual with special rights of
access to certain information even though the information is unavailable to members of the general
public: sections 552.008, 552.023, 552.026, and 552.114.
i. Information for Legislative Use
Section 552.008 of the Government Code states in pertinent part:
(a)
This chapter does not grant authority to withhold information from individual
members, agencies, or committees of the legislature to use for legislative purposes.
114
See also Open Records Decision No. 463 at 12 (1987).
115
See Open Records Decision No. 400 at 2 (1983) (construing statutory predecessor to Govt Code 552.111); see
also Cornyn v. City of Garland, 994 S.W .2d 258, 265 (Tex. App. Austin 1999, no pet.) (information released
pursuant to discovery in litigation was not voluntarily released and thus was excepted from disclosure under Public
Information Act).

29
Appendix 23
(b)
A governmental body on request by an individual member, agency, or committee of

the legislature shall provide public information, including confidential information,
to the requesting member, agency, or committee for inspection or duplication in
accordance with this chapter if the requesting member, agency, or committee states
that the public information is requested under this chapter for legislative purposes.
Section 552.008 provides that a governmental body shall provide copies of information, including
confidential information, to an individual member, agency, or committee of the legislature if
requested for legislative purposes.116 The section provides that disclosure of excepted or confidential
information to a legislator does not waive or affect the confidentiality of the information or the right
to assert exceptions in the future regarding that information, and provides specific procedures
relating to the confidential treatment of the information.117 An individual who obtains confidential
information under section 552.008 commits an offense if that person misuses the information or
discloses it to an unauthorized person.118
Subsections (b-1) and (b-2) of section 552.008 provide:
(b-1)
A member, committee, or agency of the legislature required by a governmental

body to sign a confidentiality agreement under Subsection (b) may seek a decision
as provided by Subsection (b-2) about whether the information covered by the
confidentiality agreement is confidential under law. A confidentiality agreement
signed under Subsection (b) is void to the extent that the agreement covers
information that is finally determined under Subsection (b-2) to not be
confidential under law.
(b-2)
The member, committee, or agency of the legislature may seek a decision from the
attorney general about the matter. The attorney general by rule shall establish
procedures and deadlines for receiving information necessary to decide the matter
and briefs from the requestor, the governmental body, and any other interested
person. The attorney general shall promptly render a decision requested under
this subsection, determining whether the information covered by the
confidentiality agreement is confidential under law, not later than the 45th
business day after the date the attorney general received the request for a decision
under this subsection. The attorney general shall issue a written decision on the
matter and provide a copy of the decision to the requestor, the governmental
body, and any interested person who submitted necessary information or a brief
to the attorney general about the matter. The requestor or the governmental
body may appeal a decision of the attorney general under this subsection to a
Travis County district court. A person may appeal a decision of the attorney
116
See Tex. Commn on Envtl. Quality v. Abbott, 311 S.W .3d 663 (Tex. App. Austin 2010, pet. denied) (section
552.008 required commission to release to legislator for legislative purposes attorney-client privileged documents
subject to confidentiality agreement).
117
118
Govt Code 552.352(a-1).

30
Appendix 23
general under this subsection to a Travis County district court if the person
claims a proprietary interest in the information affected by the decision or a
privacy interest in the information that a confidentiality law or judicial decision
is designed to protect.119
If a member of the legislature signs a confidentiality agreement but subsequently believes the
information the governmental body has released pursuant to section 552.008 is not confidential, the
member may request an attorney general decision regarding the confidentiality of the information.120
If the attorney general determines the information is not confidential, any confidentiality agreement
the member signed is void. The attorney general promulgated rules relating to its decisions under
section 552.008(b-2).121 These rules are available on the attorney generals website and in Part Four
of this Handbook.
ii. Information About the Person Who Is Requesting the Information
Section 552.023 of the Government Code provides an individual with a limited special right of
access to information about that individual. It states in pertinent part:
(a)
A person or a persons authorized representative has a special right of access, beyond

the right of the general public, to information held by a governmental body that
relates to the person and that is protected from public disclosure by laws intended to
protect that persons privacy interests.
(b)
A governmental body may not deny access to information to the person, or the
persons representative, to whom the information relates on the grounds that the
information is considered confidential by privacy principles under this chapter but
may assert as grounds for denial of access other provisions of this chapter or other
law that are not intended to protect the persons privacy interests.
Subsections (a) and (b) of section 552.023 prevent a governmental body from asserting an
individuals own privacy as a reason for withholding records from that individual. However, the
individuals right of access to private information about that individual under section 552.023 does
not override exceptions to disclosure in the Public Information Act or confidentiality laws protecting
119
Govt Code 552.008(b-1), (b-2).
120
See, e.g., Open Records Letter No. 2013-08637 (2013).
121
See 1 T.A.C. 63.1.6.

31
Appendix 23
some interest other than that individuals privacy.122 The following decisions consider the statutory
predecessor to section 552.023:
Open Records Decision No. 684 (2009) when requestor is a person whose privacy interests
are protected under section 552.130, concerning certain motor vehicle information, or section
552.136, concerning access device information, requestor has a right of access to the information
under section 552.023;
Open Records Decision No. 587 (1991) because former Family Code section 34.08,123 which
made confidential reports, records, and working papers used or developed in an investigation of
alleged child abuse, protected law enforcement interests as well as privacy interests, the statutory
predecessor to section 552.023 did not provide the subject of the information a special right of
access to the child abuse investigation file;
Open Records Decision No. 577 (1990) under the Communicable Disease Prevention and
Control Act, information in the possession of a local health authority relating to disease or health
conditions is confidential but may be released with the consent of the person identified in the
information; because this confidentiality provision is designed to protect the privacy of the
subject of the information, the statutory predecessor to section 552.023 authorized a local health
authority to release to the subject medical or epidemiological information relating to the person
who signed the consent; and
iii. Information in a Student or Educational Record
The attorney general has construed section 552.114 of the Government Code as creating for students
an affirmative right of access to inspect and copy their records.124 This right applies to information
in a student record at an educational institution funded wholly or partly by state revenue.125
Section 552.114(b) states a governmental body must make such information available if the
information is requested by: 1) educational institution personnel; 2) the student involved; 3) the
students parent, legal guardian, or spouse; or 4) a person conducting a child abuse investigation
pursuant to subchapter B of chapter 261 of the Family Code.126 Section 552.026 of the Government
Code, which conforms the Act to the requirements of the federal Family Educational Rights and
122
See Open Records Decision No. 556 (1990) (predecessor statute to section 552.111 applied to requestors claim
information); see also Abbott v. Tex. State Bd. of Pharmacy, 391 S.W .3d 253, 260 (Tex. App. Austin 2012, no
pet.) (because Pharmacy Act confidentiality provision protected integrity of boards regulatory process, boards
withholding of requestors records was based on law not intended solely to protect requestors privacy interest); Tex.
State Bd. of Chiropractic Examrs v. Abbott, 391 S.W .3d 343, 351 (Tex. App. Austin 2013, no pet.) (because
provision making boards investigation records confidential protected integrity of boards regulatory process rather
than requestors privacy interest, section 552.023 did not prevent board from denying access to requested
information).
123
See Fam. Code 261.201.
124
Open Records Decision No. 152 at 3 (1977) (construing statutory predecessor).
125
126

32
Appendix 23
Privacy Act of 1974127 (FERPA), also incorporates the rights of access established by that federal
law.128 To the extent FERPA conflicts with state law, the federal statute prevails.129
In 2006, the United States Department of Education Family Policy Compliance Office informed the
attorney general that FERPA does not permit state and local educational authorities to disclose to
the attorney general, without parental consent, unredacted, personally identifiable information
contained in education records for the purpose of review in the open records ruling process under
the Act.130 Consequently, state and local educational authorities that receive a request for education
records from a member of the public under the Act must not submit education records to the attorney
general in unredacted form, that is, in a form in which personally identifiable information is
disclosed.131 Because the attorney general is prohibited from reviewing these education records to
determine whether appropriate redactions under FERPA have been made, the attorney general will
not address the applicability of FERPA to any records submitted as part of a request for decision.
Such determinations under FERPA must be made by the educational authority in possession of the
education records.132 Questions regarding education records and the application of FERPA should
be directed to:
400 Maryland Ave., S.W.
Washington, D.C. 20202-5920
(202) 260-3887
b. Special Rights of Access Created by Other Statutes
Statutes other than the Act grant specific entities or individuals a special right of access to specific
information. For example, section 901.160 of the Occupations Code makes information about a
licensee held by the Texas State Board of Public Accountancy available for inspection by the
licensee. Exceptions in the Act cannot authorize the board to withhold this information from the
licensee because the licensee has a statutory right to the specific information requested.133 As is true
for the right of access provided under section 552.023 of the Act, a statutory right of access does not
127
20 U.S.C. 1232g.
128
129
130
A
co p y
of
this
lette r
may
be
found
http://www.oag.state.tx.us/open/20060725usdoe.pdf.
on
the
atto rn e y
ge ne ra ls
we b site
a t:
131
See 34 C.F.R. 99.3 (defining personally identifiable information).
132
If the educational authority obtains parental consent to submit unredacted education records and the educational
authority seeks a ruling from the attorney general on the proper redaction of those education records in compliance
with FERPA, we will rule accordingly.
133
Open Records Decision No. 451 at 4 (1986); see also Open Records Decision Nos. 500 at 45 (1988) (considering
property owners right of access to appraisal records under Tax Code), 478 at 3 (1987) (considering intoxilyzer test
subjects right of access to test results under statutory predecessor to Transp. Code 724.018).

33
Appendix 23
affect the governmental bodys authority to rely on applicable exceptions to disclosure when the
information is requested by someone other than an individual with a special right of access.
2. Intra- or Intergovernmental Transfers
The transfer of information within a governmental body or between governmental bodies is not
necessarily a release to the public for purposes of the Act. For example, a member of a
governmental body, acting in his or her official capacity, is not a member of the public for purposes
of access to information in the governmental bodys possession. Thus, an authorized official may
review records of the governmental body without implicating the Acts prohibition against selective
disclosure.134 Additionally, a state agency may ordinarily transfer information to another state agency
or to another governmental body subject to the Public Information Act without violating the
confidentiality of the information or waiving exceptions to disclosure.135
On the other hand, a federal agency is subject to an open records law that differs from the Texas
Public Information Act. A state governmental body, therefore, should not transfer non-disclosable
information to a federal agency unless some law requires or authorizes the state governmental body
to do so.136 A federal agency may not maintain the state records with the same eye towards
confidentiality that state agencies would be bound to do under the laws of Texas.137
Where information is confidential by statute, the statute specifically enumerates the entities to which
the information may be released, and the governmental body is not among those entities, the
information may not be transferred to the governmental body.138
134
See Attorney General Opinions JC-0283 at 34 (2000), JM-119 at 2 (1983); see also O pen Records Decision
Nos. 678 at 4 (2003) (transfer of county registrars list of registered voters to secretary of state and election officials
is not release to public prohibited by Govt Code 552.1175), 674 at 4 (2001) (information in archival state records
that was confidential in custody of originating governmental body remains confidential upon transfer to
commission), 666 at 4 (2000) (municipalitys disclosure to municipally appointed citizen advisory board of
information pertaining to municipally owned power utility does not constitute release to public as contemplated
under Govt Code 552.007), 464 at 5 (1987) (distribution of evaluations by university faculty members among
faculty members does not waive exceptions to disclosure with respect to general public) (overruled on other grounds
by Open Records Decision No. 615 (1993)).
135
See Attorney General Opinions H-917 at 1 (1976), H-242 at 4 (1974); Open Records Decision Nos. 667 at 34
(2000), 661 at 3 (1999). But see Attorney General Opinion JM-590 at 45 (1986) (comptrollers release to city
prohibited where Tax Code made information confidential, enumerated entities to which information may be
disclosed, and did not include city among enumerated entities).
136
Open Records Decision No. 650 at 4 (1996); See, e.g., Open Records Letter No. 2013-07491 (2013) (United States
Army provided right of access under federal law to criminal history record information in certain city police
records).
137
Attorney General Opinion H-242 at 4 (1974); accord Attorney General Opinion MW -565 at 4 (1982); Open Records
Decision No. 561 at 6 (1990) (quoting with approval Attorney General Opinion H-242 (1974)).
138
See generally Attorney General Opinion JM-590 at 5 (1986); Open Records Decision Nos. 661 at 3 (1999), 655 at 8
(1997), 650 at 3 (1996).

34
Appendix 23
3. Other Limited Disclosures that Do Not Implicate Section 552.007

The attorney general has recognized other specific contexts in which a governmental bodys limited
release of information to certain persons does not constitute a release to the public under
section 552.007:
Open Records Decision No. 579 at 7 (1990) exchanging information among litigants in
informal discovery was not a voluntary release under the statutory predecessor to section
552.007;
Open Records Decision No. 501 (1988) while former article 9.39 of the Insurance Code
prohibited the State Board of Insurance from releasing escrow reports to the public, the Board
could release the report to the title company to which the report related; and
Open Records Decision No. 400 (1983) the prohibition against selective disclosure does not
apply when a governmental body releases confidential information to the public.
VI. ATTORNEY GENERAL DETERMINES WHETHER

INFORMATION IS SUBJECT TO AN EXCEPTION
A. Duties of the Governmental Body and of the Attorney General Under
Subchapter G
Sections 552.301, 552.302, and 552.303 set out the duty of a governmental body to seek the attorney
generals decision on whether information is excepted from disclosure to the public.
Section 552.301, subsections (a), (b), and (c), provide that when a governmental body receives a
written request for information the governmental body wishes to withhold, it must seek an attorney
general decision within ten business days of its receipt of the request and state the exceptions to
disclosure that it believes are applicable. Subsections (a), (b), and (c) read:
(a)
A governmental body that receives a written request for information that it wishes
to withhold from public disclosure and that it considers to be within one of the
exceptions under Subchapter C must ask for a decision from the attorney general
about whether the information is within that exception if there has not been a
previous determination about whether the information falls within one of the
exceptions.
...
(b)
The governmental body must ask for the attorney generals decision and state the
exceptions that apply within a reasonable time but not later than the 10th business
day after the date of receiving the written request.

35
Appendix 23
(c)
For purposes of this subchapter, a written request includes a request made in writing
that is sent to the officer for public information, or the person designated by that
officer, by electronic mail or facsimile transmission.
Thus, a governmental body that wishes to withhold information from the public on the ground of an
exception generally must seek the decision of the attorney general as to the applicability of that
exception.139 In addition, an entity contending that it is not subject to the Act should timely request
a decision from the attorney general to avoid the consequences of noncompliance if the entity is
determined to be subject to the Act.140 Therefore, when requesting such a decision, the entity should
not only present its arguments as to why it is not subject to the Act, but should also raise any
exceptions to required disclosure it believes apply to the requested information.
A governmental body need not request an attorney general decision if there has been a previous
determination that the requested material falls within one of the exceptions to disclosure.141 What
constitutes a previous determination is narrow in scope, and governmental bodies are cautioned
against treating most published attorney general decisions as previous determinations to avoid the
requirements of section 552.301(a). The attorney general has determined that there are two types
of previous determinations.142 The first and by far the most common instance of a previous
determination pertains to specific information that is again requested from a governmental body
when the attorney general has previously issued a decision that evaluates the public availability of
the precise information or records at issue. This first instance of a previous determination does not
apply to records that are substantially similar to records previously submitted to the attorney general
for review, nor does it apply to information that may fall within the same category as any given
records on which the attorney general has previously ruled. The first type of previous determination
requires that all of the following criteria be met:
1.
the information at issue is precisely the same information that was previously submitted
to the attorney general pursuant to section 552.301(e)(1)(D) of the Government Code;
2.
the governmental body that received the request for the information is the same
governmental body that previously requested and received a ruling from the attorney
general;
139
Thomas v. Cornyn, 71 S.W .3d 473, 480 (Tex. App. Austin 2002, no pet.); Dominguez v. Gilbert, 48 S.W .3d 789,
792 (Tex. App. Austin 2001, no pet.); Open Records Decision Nos. 452 at 4 (1986), 435 (1986) (referring
specifically to statutory predecessors to Govt Code 552.103 and 552.111, respectively); see Conely v. Peck, 929
S.W .2d 630, 632 (Tex. App. Austin 1996, no writ) (requirement to request open records decision within ten days
comes into play when governmental body denies access to requested information or asserts exception to public
disclosure of information).
140
See Kneeland v. Natl Collegiate Athletic Assn, 650 F. Supp. 1064, 107273 (W .D. Tex. 1986), revd on other
grounds, 850 F.2d 224 (5th Cir. 1988), cert. denied, 488 U.S. 1042 (1989) (whether Act applies to entity is
necessary preliminary determination under subchapter G).
141
Govt Code 552.301(a); Dominguez v. Gilbert, 48 S.W.3d 789, 79293 (Tex. App. Austin 2001, no pet.).
142

36
Appendix 23
3.
the attorney generals prior ruling concluded the precise information is or is not excepted
from disclosure under the Act; and
4.
the law, facts, and circumstances on which the prior attorney general ruling was based have
not changed since the issuance of the ruling.143
Absent all four of the above criteria, and unless the second type of previous determination applies,
a governmental body must ask for a decision from the attorney general if it wishes to withhold from
the public information that is requested under the Act.
The second type of previous determination requires that all of the following criteria be met:
1.
the information at issue falls within a specific, clearly delineated category of information
about which the attorney general has previously rendered a decision;
2.
the previous decision is applicable to the particular governmental body or type of

governmental body from which the information is requested;144
3.
the previous decision concludes the specific, clearly delineated category of information is
or is not excepted from disclosure under the Act;
4.
the elements of law, fact, and circumstances are met to support the previous decisions
conclusion that the requested records or information at issue is or is not excepted from
required disclosure; and145
5.
the previous decision explicitly provides that the governmental body or bodies to which
the decision applies may withhold the information without the necessity of again seeking
a decision from the attorney general.
143
A governmental body should request a decision from the attorney general if it is unclear to the governmental body
whether there has been a change in the law, facts or circumstances on which the prior decision was based.
144
Previous determinations of the second type can apply to all governmental bodies if the decision so provides. See,
e.g., Open Records Decision No. 670 (2001) (all governmental bodies may withhold information subject to
predecessor of Govt Code 552.117(a)(2) without necessity of seeking attorney general decision). On the other
hand, if the decision is addressed to a particular governmental body and does not explicitly provide that it also
applies to other governmental bodies or to all governmental bodies of a certain type, then only the particular
governmental body to which the decision is addressed may rely on the decision as a previous determination. See,
e.g., Open Records Decision No. 662 (1999) (constituting second type of previous determination but only with
respect to information held by Texas Department of Health).
145
Thus, in addition to the law remaining unchanged, the facts and circumstances must also have remained unchanged
to the extent necessary for all of the requisite elements to be met. W ith respect to previous determinations of the
second type, a governmental body should request a decision from the attorney general if it is unclear to the
governmental body whether all of the elements on which the previous decisions conclusion was based have been
met with respect to the requested records or information.

37
Appendix 23
Absent all five of the above criteria, and unless the first type of previous determination applies, a
governmental body must ask for a decision from the attorney general if it wishes to withhold from
the public information that is requested under the Act.
An example of this second type of previous determination is found in Open Records Decision
No. 670. In that decision, the attorney general determined that pursuant to the statutory predecessor
of section 552.117(a)(2) of the Government Code, a governmental body may withhold the home
address, home telephone number, personal cellular telephone number, personal pager number, social
security number, and information that reveals whether the individual has family members, of any
individual who meets the definition of peace officer without requesting a decision from the
attorney general.
The governmental body may not unilaterally decide to withhold information on the basis of a prior
open records decision merely because it believes the legal standard for an exception, as established
in the prior decision, applies to the recently requested information.146
When in doubt, a governmental body should consult with the Open Records Division of the Office
of the Attorney General prior to the ten business day deadline to determine whether requested
information is subject to a previous determination.147
A request for an open records decision pursuant to section 552.301 must come from the
governmental body that has received a written request for information.148 Otherwise, the attorney
general does not have jurisdiction under the Act to determine whether the information is excepted
from disclosure to the public.
Section 552.301(f) expressly prohibits a governmental body from seeking an attorney general
decision where the attorney general or a court has already determined that the same information must
be released. Among other things, this provision precludes a governmental body from asking for
reconsideration of an attorney general decision that concluded the governmental body must release
information. Subsection (f) provides:
(f)
A governmental body must release the requested information and is prohibited from
asking for a decision from the attorney general about whether information requested
under this chapter is within an exception under Subchapter C if:
(1) the governmental body has previously requested and received a determination
from the attorney general concerning the precise information at issue in a pending
request; and
146
Open Records Decision No. 511 (1988) (no unilateral withholding of information under litigation exception).
147
See Open Records Decision No. 435 at 23 (1986) (attorney general has broad discretion to determine whether
information is subject to previous determination).
148
Open Records Decision Nos. 542 at 3 (1990), 449 (1986).

38
Appendix 23
(2) the attorney general or a court determined that the information is public
information under this chapter that is not excepted by Subchapter C.
Section 552.301(g) authorizes a governmental body to ask for another attorney general decision if:
(1) a suit challenging the prior decision was timely filed against the attorney general; (2) the attorney
general determines that the requestor has voluntarily withdrawn the request for the information in
writing or has abandoned the request; and (3) the parties agree to dismiss the lawsuit.149
Section 552.301(d) provides that if the governmental body seeks an attorney general decision as to
whether it may withhold requested information, it must notify the requestor not later than the tenth
business day after its receipt of the written request that it is seeking an attorney general decision.
Section 552.301(d) reads:
(d)
A governmental body that requests an attorney general decision under Subsection (a)
must provide to the requestor within a reasonable time but not later than the 10th
business day after the date of receiving the requestors written request:
(1) a written statement that the governmental body wishes to withhold the requested
information and has asked for a decision from the attorney general about whether
the information is within an exception to public disclosure; and
(2) a copy of the governmental bodys written communication to the attorney general
asking for a decision or, if the governmental bodys written communication to the
attorney general discloses the requested information, a redacted copy of that
written communication.
The attorney general interprets section 552.301(d)(1) to mean that a governmental body substantially
complies with subsection (d)(1) by sending the requestor a copy of the governmental bodys written
communication to the attorney general requesting a decision. Because governmental bodies may be
required to submit evidence of their compliance with subsection (d), governmental bodies are
encouraged to submit evidence of their compliance when seeking an attorney general decision. If
a governmental body fails to comply with subsection (d), the requested information is presumed
public pursuant to section 552.302.
B. Items the Governmental Body Must Submit to the Attorney General

Sections 552.301(e) and (e-1) read:
(e)
A governmental body that requests an attorney general decision under Subsection (a)
must within a reasonable time but not later than the 15th business day after the date
of receiving the written request:
(1) submit to the attorney general:
149
Govt Code 552.301(g).

39
Appendix 23
(A) written comments stating the reasons why the stated exceptions apply that
would allow the information to be withheld;
(B) a copy of the written request for information;
(C) a signed statement as to the date on which the written request for
information was received by the governmental body or evidence sufficient
to establish that date; and
(D) a copy of the specific information requested, or submit representative
samples of the information if a voluminous amount of information was
requested; and
(2) label that copy of the specific information, or of the representative samples, to
indicate which exceptions apply to which parts of the copy.
(e-1) A governmental body that submits written comments to the attorney general under
Subsection (e)(1)(A) shall send a copy of those comments to the person who requested
the information from the governmental body not later than the 15th business day
after the date of receiving the written request. If the written comments disclose or
contain the substance of the information requested, the copy of the comments
provided to the person must be a redacted copy.
Thus, subsection (e) of section 552.301 requires a governmental body seeking an attorney general
decision as to whether it may withhold requested information to submit to the attorney general, no
later than the fifteenth business day after receiving the written request, written comments stating
why the claimed exceptions apply, a copy of the written request, a signed statement as to the date
of its receipt of the request or sufficient evidence of that date, and a copy of the specific information
it seeks to withhold, or representative samples thereof, labeled to indicate which exceptions are
claimed to apply to which parts of the information. Within fifteen business days, a governmental
body must also copy the requestor on those comments, redacting any portion of the comments that
contains the substance of the requested information. Governmental bodies are cautioned against
redacting more than that which would reveal the substance of the information requested from the
comments sent to the requestor. A failure to comply with the requirements of section 552.301 can
result in the waiver of certain exceptions.150
1. Written Communication from the Person Requesting the Information
A written request includes a request sent by electronic mail or facsimile transmission to the public
information officer or the officers designee.151 A copy of the written request from the member of
the public seeking access to the records lets the attorney general know what information was
requested, permits the attorney general to determine whether the governmental body met its statutory
150
See Govt Code 552.302.
151

40
Appendix 23
deadlines in requesting a decision, and enables the attorney general to inform the requestor of the
ruling.152 These written communications are generally public information.153
2. Information Requested from the Governmental Body
Section 552.303(a) provides:
A governmental body that requests an attorney general decision under this subchapter
shall supply to the attorney general, in accordance with Section 552.301, the specific
information requested. Unless the information requested is confidential by law, the
governmental body may disclose the requested information to the public or to the
requestor before the attorney general makes a final determination that the requested
information is public or, if suit is filed under this chapter, before a final determination that
the requested information is public has been made by the court with jurisdiction over the
suit, except as otherwise provided by Section 552.322.
Governmental bodies should submit a clean, legible copy of the information at issue. Original
records should not be submitted. If the requested records are voluminous and repetitive, a
governmental body may submit representative samples.154 If, however, each document contains
substantially different information, a copy of each and every requested document or all information
must be submitted to the attorney general.155 For example, it is not appropriate to submit a
representative sample of information when the proprietary information of third parties is at issue.
In that circumstance, it is necessary to submit the information of each third party with a potential
proprietary interest rather than submitting the information of one third party as a representative
sample. The attorney general must not disclose the submitted information to the requestor or the
public.156
3. Labeling Requested Information to Indicate Which Exceptions Apply to Which Parts of
the Requested Information
When a governmental body raises an exception applicable to only part of the information, it must
mark the records to identify the information it believes is subject to that exception. A general claim
that an exception applies to an entire report or document, when the exception clearly does not apply
to all information in that report or document, does not conform to the Act.157 When labeling
requested information, a governmental body should mark the records in such a way that all of the
requested information remains visible for the attorney generals review. For obvious reasons, the
attorney general cannot make a determination on information it cannot read.
152
See Govt Code 552.306(b); Open Records Decision No. 150 (1977).
153
Cf. Govt Code 552.301(d)(2), (e-1) (requiring governmental body to provide requestor copies of its written
communications to attorney general); Open Records Decision No. 459 (1987) (considering public availability of
governmental bodys letter to attorney general).
154
Govt Code 552.301(e)(1)(d).
155
Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
156
Govt Code 552.3035.
157
Govt Code 552.301(e)(2); Open Records Decision Nos. 419 at 3 (1984), 252 at 3 (1980), 150 at 2 (1977).

41
Appendix 23
4. Statement or Evidence as to Date Governmental Body Received Written Request

The governmental body, in its submission to the attorney general, must certify or provide sufficient
evidence of the date it received the written request.158 This will enable the attorney general to
determine whether the governmental body has timely requested the attorney generals decision
within ten business days of receiving the written request, as required by section 552.301(b), and
timely submitted the other materials that are required by section 552.301(e) to be submitted by the
fifteenth business day after receipt of the request. Section 552.301 provides that if a governmental
body receives a written request by United States mail and cannot adequately establish the actual date
on which the governmental body received the request, the written request is considered to have been
received by the governmental body on the third business day after the date of the postmark on a
properly addressed request.159
The attorney general does not count skeleton crew days observed by a governmental body as
business days for the purpose of calculating that governmental bodys deadlines under the Public
Information Act. A governmental body briefing the attorney general under section 552.301 must
inform the attorney general in the briefing of any holiday, including skeleton crew days, observed
by the governmental body. If the briefing does not notify the attorney general of holidays the
governmental body observes, the deadlines will be calculated to include those days.
5. Letter from the Governmental Body Stating Which Exceptions Apply and Why
The letter from the governmental body stating which exceptions apply to the information and why
they apply is necessary because the Public Information Act presumes that governmental records are
open to the public unless the records are within one of the exceptions set out in subchapter C.160 This
presumption is based on the language of section 552.021, which makes virtually all information in
the custody of a governmental body available to the public. This language places on the
governmental body the burden of proving that an exception applies to the records requested from
it.161 Thus, if the governmental body wishes to withhold particular information, it must establish that
a particular exception applies to the information and must mark the records to identify the portion
the governmental body believes is excepted from disclosure. Conclusory assertions that a particular
exception applies to requested information will not suffice. The burden for establishing the
applicability of each exception in the Public Information Act is discussed in detail in Part Two of
this Handbook. If a governmental body does not establish how and why an exception applies to the
requested information, the attorney general has no basis on which to pronounce it protected.162
158
Govt Code 552.301(e)(1)(c).
159
Gov't Code 552.301(a-1).
160
See Attorney General Opinion H-436 (1974); Open Records Decision Nos. 363 (1983), 150 (1977), 91 (1975).
161
See Thomas v. Cornyn, 71 S.W.3d 473, 48081 (Tex. App.Austin 2002, no pet.); Open Records Decision Nos.
542 at 23 (1990) (burden is placed on governmental body when it requests ruling pursuant to statutory predecessor
to Govt Code 552.301), 532 at 1 (1989), 363 (1983), 197 at 1 (1978).
162

42
Appendix 23
The exceptions to disclosure, listed in subchapter C can generally be considered to fall within two
categories: mandatory exceptions, which protect information deemed confidential by law and
which a governmental body is prohibited from releasing subject to criminal penalties;163 and
permissive exceptions, which grant to the governmental body the discretion to either release or
withhold information. The Eighty-second Legislature amended the titles of the exceptions to codify
the attorney generals determination as to which exceptions are mandatory or permissive.164 Because
the permissive exceptions to disclosure do not make information confidential, the governmental
body may choose not to raise a permissive exception and may release to the public this
nonconfidential information.165 Furthermore, a waiver of an otherwise applicable permissive
exception may result from the governmental bodys failure to comply with the requirements of
section 552.301.166 However, mandatory exceptions, which protect from public disclosure
information that a governmental body is prohibited from releasing, are not waivable. For example,
section 552.101, which applies to information considered to be confidential by law, either
constitutional, statutory, or by judicial decision, is generally not waivable; it refers to statutes,
constitutional provisions, and judicial decisions that are not waived by a governmental bodys failure
to comply with the procedures set out in subchapter G of the Act. The following decisions address
the waiver of Act exceptions:
Open Records Decision No. 677 (2002) a governmental body may waive the work product
privilege as incorporated into the Act by section 552.111 if it fails to meet its deadlines under
section 552.301;
Open Records Decision No. 676 (2002) a governmental body may waive section 552.107 if
it fails to meet its deadlines under section 552.301;
Open Records Decision No. 663 (1999) a governmental body may waive section 552.103 if
it fails to timely request an open records decision;
Open Records Decision No. 470 (1987) a school district may waive the protection of section
552.111 as to the audit of high school funds but may not release information that is protected by
sections 552.101 and 552.114;
Open Records Decision No. 400 (1983) a city department that showed a report on employee
misconduct to members of the public waived the statutory predecessor to section 552.111, but
not section 552.101 or section 552.102;
Open Records Decision No. 363 (1983) if a governmental body fails to show how and why
a particular exception applies to requested information, the attorney general has no basis on
which to conclude that the information is excepted from disclosure;
163
See Govt Code 552.352.
164
Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, 3-21, 23-26, 28-37 (amending Govt Code 552.102,
.109-.110, .113-.115, .117, .118-.121, .123-.124, .126, .131, .133-.136, .138-.140, .142, .145, .148, .151 to indicate
exceptions are mandatory and protect confidential information).
165
See Open Records Decision No. 522 at 4 (1989).
166
See Govt Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App. Austin 1990, no writ).

43
Appendix 23
Open Records Decision No. 325 (1982) when a governmental body has raised no exceptions
to disclosure, the attorney general may raise only section 552.101; and
Open Records Decision No. 321 (1982) records were public where a governmental body
raised the statutory predecessor to section 552.022(a)(1) with respect to records of an incomplete
audit but raised no other exceptions to disclosure.
The governmental body must send to the requestor a copy of its letter to the attorney general stating
why information is excepted from public disclosure.167 In order to explain how a particular
exception applies to the information in dispute, the governmental body may find it necessary to
reveal the content of the requested information in its letter to the attorney general. In such cases, the
governmental body must redact comments containing the substance of the requested information in
the copy it sends to the requestor.168
C. Section 552.302: Information Presumed Public if Submissions and

Notification Required by Section 552.301 Are Not Timely
If a governmental body does not request an attorney general decision as provided by
Section 552.301 and provide the requestor with the information required by Sections
552.301(d) and (e-1), the information requested in writing is presumed to be subject to
required public disclosure and must be released unless there is a compelling reason to
withhold the information.
Section 552.301(b) establishes a deadline of ten business days for the governmental body to request
a decision from the attorney general and state the exceptions that apply.169 Subsection (d) of
section 552.301 requires that the governmental body notify the requestor within ten business days
if it is seeking an attorney general decision as to whether the information may be withheld.
Section 552.301(e) establishes a deadline of fifteen business days for the governmental body to
provide the other materials required under that subsection to the attorney general. Subsection (e-1)
of section 552.301 requires that the governmental body copy the requestor on its written comments,
within fifteen business days, redacting any portion of the comments that contains the substance of
the information requested.
Section 552.302 provides that if the governmental body does not make a timely request for a
decision, notify and copy the requestor, and make the requisite submissions to the attorney general
as required by section 552.301, the requested information will be presumed to be open to the public,
167
Govt Code 552.301(e-1).
168
Govt Code 552.301(e-1).
169
See also Govt Code 552.308 (timeliness of action by United States mail, interagency mail, or common or
contract carrier), .309 (timeliness of action by electronic submission).

44
Appendix 23
and only the demonstration of a compelling reason for withholding the information can overcome
that presumption.170 In the great majority of cases, the governmental body will not be able to
overcome that presumption and must promptly release the requested information. Whether failure
to meet the respective ten and fifteen business day deadlines, and submit the requisite information
within those deadlines, has the effect of requiring disclosure depends on whether the governmental
body asserts a mandatory or permissive exception. The following decisions deal with whether
there is a compelling reason that would overcome the presumption of openness arising from the
governmental bodys failure to meet the deadlines for submissions:
Open Records Decision No. 663 (1999) concerning the effect of clarification of a request for
information on the deadline; this decision was overruled by the Texas Supreme Court in City of
Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010);
Open Records Decision No. 617 (1993) if a request for information is made to the Records
Management Division of the Texas State Library and Archives Commission for records it holds
for a state agency, the ten day deadline begins to run when the agency receives the request for
information, not when the Records Management Division receives the request for information;
Open Records Decision No. 586 (1991) when a governmental body has missed the ten day
deadline, the need of another governmental body to withhold the requested information may
provide a compelling reason for nondisclosure;
Open Records Decision No. 552 (1990) the presumption of openness may be overcome by
a claim under section 552.110, because section 552.110 is designed to protect the interests of a
third party;
Open Records Decision No. 473 (1987) a citys failure to meet the ten day deadline waived
the protection of sections 552.103 and 552.111 but not the protection of sections 552.101,
552.102, and 552.109, which protect the privacy rights of third parties;
Open Records Decision No. 150 (1977) the presumption of openness can be overcome only
by a compelling demonstration that the information should not be released to the public, i.e., that
the information is deemed confidential by some other source of law or that third-party interests
are at stake;
Open Records Decision No. 71 (1975) the protection of the privacy interests of a third party
is a compelling reason that overcomes the presumption of openness; and
170
Govt Code 552.302; see Hancock v. State Bd. of Ins., 797 S.W .2d 379 (Tex. App. Austin 1990, no writ); Open
Records Decision Nos. 515 at 6 (1988), 452 (1986), 319 (1982); see also Simmons v. Kuzmich, 166 S.W .3d 342,
348-49 (Tex. App. Fort W orth 2005, no pet.) (party seeking to withhold information has burden in trial court of
proving exception from disclosure and presumably must comply with steps mandated by statute to seek and preserve
such exception from disclosure); Abbott v. City of Corpus Christi, 109 S.W .3d 113, 122 n.6 (Tex. App. Austin
2003, no pet.) (court need not decide whether law enforcement exception applies because city never submitted any
reasons or comments as to how exception applied, and issue was not before it because city failed to meet Acts
procedural requirements).

45
Appendix 23
Open Records Decision No. 26 (1974) the presumption of openness based on the failure to
meet the ten day deadline will not be overcome except by a compelling demonstration that the
information should not be released to the public, such as that it is made confidential by another
source of law.
The section 552.302 presumption of openness is automatically triggered as soon as the governmental
body fails to meet any of the requisite deadlines for submissions or notification set out in section
552.301.
D. Section 552.303: Attorney General Determination that Information in

Addition to that Required by Section 552.301 Is Necessary to Render a
Decision
Section 552.303 provides for instances when the attorney general determines information other than
that required to be submitted by section 552.301 is necessary to render a decision.171 If the attorney
general determines more information is necessary to render a decision, it must so notify the
governmental body and the requestor.172 If the additional material is not provided by the
governmental body within seven calendar days of its receipt of the attorney generals notice, the
information sought to be withheld is presumed public and must be disclosed unless a compelling
reason for withholding the information is demonstrated.173
E.
Section 552.305: When the Requested Information Involves a Third

Partys Privacy or Property Interests
Section 552.305 reads as follows:

(a)
In a case in which information is requested under this chapter and a persons privacy
or property interests may be involved, including a case under Section 552.101,
552.104, 552.110, or 552.114, a governmental body may decline to release the
information for the purpose of requesting an attorney general decision.
(b)
A person whose interests may be involved under Subsection (a), or any other person,
may submit in writing to the attorney general the persons reasons why the
information should be withheld or released.
(c)
The governmental body may, but is not required to, submit its reasons why the
information should be withheld or released.
(d)
If release of a persons proprietary information may be subject to exception under

Section 552.101, 552.110, 552.113, or 552.131, the governmental body that requests
171
Govt Code 552.303(b)(e).
172
173
Govt Code 552.303(d)(e).

46
Appendix 23
an attorney general decision under Section 552.301 shall make a good faith attempt
to notify that person of the request for the attorney general decision. Notice under
this subsection must:
(1) be in writing and sent within a reasonable time not later than the 10th business
day after the date the governmental body receives the request for the information;
and
(2) include:
(A) a copy of the written request for the information, if any, received by the
governmental body; and
(B) a statement, in the form prescribed by the attorney general, that the person
is entitled to submit in writing to the attorney general within a reasonable
time not later than the 10th business day after the date the person receives
the notice:
(e)
(i)
each reason the person has as to why the information should be

withheld; and
(ii)
a letter, memorandum, or brief in support of that reason.
A person who submits a letter, memorandum, or brief to the attorney general under
Subsection (d) shall send a copy of that letter, memorandum, or brief to the person
who requested the information from the governmental body. If the letter,
memorandum, or brief submitted to the attorney general contains the substance of
the information requested, the copy of the letter, memorandum, or brief may be a
redacted copy.
Section 552.305 relieves the governmental body of its duty under section 552.301(b) to state which
exceptions apply to the information and why they apply when (1) a third partys privacy or property
interests may be implicated, (2) the governmental body has requested a ruling from the attorney
general, and (3) the third party or any other party has submitted reasons for withholding or releasing
the information.174 However, section 552.305 does not relieve a governmental body of its duty to
request a ruling within ten business days of receiving a request for information, notify the requestor
in accordance with section 552.301(d), or provide the attorney generals office with the information
required in section 552.301(e).175 The language of section 552.305(b) is permissive and does not
require a third party with a property or privacy interest to seek relief from the attorney general before
filing suit against the attorney general under section 552.325. The opportunity to submit comments
during the ruling process does not automatically provide access to the courts. A third party must still
174
175
See Govt Code 552.301(a)(b), (e), .305.

47
Appendix 23
meet jurisdictional requirements for standing before it may file suit over a ruling that orders
information to be disclosed.
Section 552.305(d) requires the governmental body to make a good faith effort to notify a person
whose proprietary interests may be implicated by a request for information where the information
may be excepted from disclosure under section 552.101, 552.110, 552.113, or 552.131. The
governmental body is generally not required to notify a party whose privacy, as opposed to
proprietary, interest is implicated by a release of information. The governmental body may itself
argue that the privacy interests of a third party except the information from disclosure.
The required notice must be in writing and sent within ten business days of the governmental bodys
receipt of the request. It must include a copy of the written request for information and a statement
that the person may, within ten business days of receiving the notice, submit to the attorney general
reasons why the information in question should be withheld and explanations in support thereof.
The form of the statement required by section 552.305(d)(2)(B), as prescribed by the attorney
general, can be found in Part Nine of this Handbook. Subsection (e) of section 552.305 requires a
person who submits reasons under subsection (d) for withholding information to send a copy of such
communication to the requestor of the information, unless the communication reveals the substance
of the information at issue, in which case the copy sent to the requestor may be redacted.
The following open records decisions have interpreted the statutory predecessor to section 552.305:
Open Records Decision No. 652 (1997) if a governmental body takes no position pursuant
to section 552.305 of the Government Code or has determined that requested information is not
protected under a specific confidentiality provision, the attorney general will issue a decision
based on a review of the information at issue and on any other information provided to the
attorney general by the governmental body or third parties;
Open Records Decision No. 609 (1992) the attorney general is unable to resolve a factual
dispute when a governmental body and a third party disagree on whether information is excepted
from disclosure based on the third partys property interests;
Open Records Decision No. 575 (1990) the Public Information Act does not require a third
party to substantiate its claims of confidentiality at the time it submits material to a governmental
body;
Open Records Decision No. 552 (1990) explanation of how the attorney general deals with
a request when, pursuant to the statutory predecessor to section 552.305 of the Public
Information Act, a governmental body takes no position on a third partys claim that information
is excepted from public disclosure by the third partys property interests and when relevant facts
are in dispute; and
Open Records Decision No. 542 (1990) the statutory predecessor to section 552.305 did not
permit a third party to request a ruling from the attorney general.

48
Appendix 23
F.
Section 552.3035: Attorney General Must Not Disclose Information at

Issue
Section 552.3035 expressly prohibits the attorney general from disclosing information that is the
subject of a request for an attorney general decision.
G. Section 552.304: Submission of Public Comments

Section 552.304 of the Act permits any person to submit written comments as to why information
at issue in a request for an attorney general decision should or should not be released. In order to be
considered, such comments must be received before the attorney general renders a decision under
section 552.306, and must be submitted pursuant to sections 552.308 and 552.309, as discussed
below.
H. Rendition of Attorney General Decision

Pursuant to section 552.306 of the Act, the attorney general must render an open records decision
not later than the 45th business day after the date the attorney general received the request for a
decision.176 If the attorney general cannot render a decision by the 45 day deadline, the attorney
general may extend the deadline by ten business days by informing the governmental body and the
requestor of the reason for the delay.177 The attorney general must provide a copy of the decision to
the requestor.178 The attorney general addressed this section in Open Records Decision No. 687
(2011), concluding section 552.306 imposes a duty on the attorney general to rule on a claimed
exception to disclosure when, prior to the issuance of the decision, a party has brought an action
before a Texas court posing the same open records question.
I. Timeliness of Action
Pursuant to section 552.308, when the Act requires a request, notice or other document to be
submitted or otherwise given to a person within a specified period, the requirement is met in a timely
fashion if the document is sent by first class United States mail or common or contract carrier
properly addressed with postage or handling charges prepaid and: (1) bears a post office cancellation
mark or a receipt mark of the carrier indicating a time within that period; or (2) the submitting person
furnishes satisfactory proof the document was deposited in the mail or with the carrier within that
period.179 If a state agency is required to submit information to the attorney general, the timeliness
requirement is met if the information is sent by interagency mail and the state agency provides
sufficient evidence to establish the information was deposited within the proper period.180
176
177
178
179
180

49
Appendix 23
The attorney general has established an electronic filing system that allows governmental bodies and
interested third parties to submit information electronically for a fee.181 Information submitted
through this designated system will be considered timely if it is electronically submitted within the
proper time period.182 The attorney general has promulgated rules to administer the designated
system.183 These rules are available on the attorney generals website and in Part Four of this
Handbook. The creation of the electronic filing system does not affect the right of a person or
governmental body to submit information to the attorney general under section 552.308.184
VII. COST OF COPIES AND ACCESS

Subchapter F of the Public Information Act, sections 552.261 through 552.275, generally provides
for allowable charges for copies of and access to public information. All charges must be calculated
in accordance with the rules promulgated by the attorney general under section 552.262.185 The rules
establish the charges, as well as methods of calculation for those charges. The rules also provide that
a local governmental body may exceed the costs established by the rules of the attorney general by
up to 25 percent.186 The cost rules are available on the attorney generals website and in Part Four
of this Handbook. Also available on the website is the Public Information Cost Estimate Model,
a tool designed to assist the public and governmental bodies in estimating costs associated with
public information requests.187
A. Charges for Copies of Paper Records and Printouts of Electronic Records

Section 552.261(a) allows a governmental body to recover costs related to reproducing public
information. A request for copies that results in more than fifty pages may be assessed charges for
labor, overhead (which is calculated as a percentage of the total labor), and materials.188
Requests that require programming and/or manipulation of data may be assessed charges for those
tasks also, as well as computer time to process the request.189 The law defines programming as
the process of producing a sequence of coded instructions that can be executed by a computer.190
Manipulation of data is defined as the process of modifying, reordering, or decoding of
information with human intervention.191 Finally, processing means the execution of a sequence
181
See Govt Code 402.006(d).
182
183
1 T.A.C. 63.21.24. These rules are available on the attorney generals website and in Part Four of this
Handbook.
184
185
See 1 T.A.C. 70.1.12.
186
Govt Code 552.262(a), (b).
187
http://www.texasattorneygeneral.gov/open/cost_page.shtml.
188
1 T.A.C. 70.3(d), (e), (i).
189
1 T.A.C. 70.3(c), (d), (h).
190
Govt Code 552.003(4).
191
Govt Code 552.003(2).

50
Appendix 23
of coded instructions by a computer producing a result.192 The amount allowed for computer
processing depends on the type of computer used and the time needed for the computer to process
the request. The time is calculated in CPU minutes for mainframe and mid-range computers, and
in clock hours for client servers and PCs.
Examples:
1.
A governmental body receives a request for copies of the last 12 months worth of travel
expenditures for employees, including reimbursements and backup documentation. The
records are maintained in the governmental bodys main office. The governmental body
determines there are about 120 pages, and it will take one and a half hours to put the
information together, redact drivers license numbers pursuant to section 552.130 and
credit card numbers pursuant to section 552.136, and make copies. The total allowable
charges for this request would be:
Copies, 120 pages @ $.10/page
Labor, 1.5 hours @ $15.00/hour
Overhead, $22.50 x .20
Total for copies & labor (paper records)
2.
$12.00
$22.50
$4.50
$39.00
In addition to the above request, the requestor sends a separate request for copies of all
e-mails between two named individuals and members of the public for the same 12 month
period. Pursuant to section 552.137, the governmental body will redact any e-mail
addresses of members of the public. The governmental bodys e-mail system allows
electronic redaction of e-mail addresses by writing a program. The requestor wants the
e-mails on a CD. The total charges for this request would be:
Labor, .50 hours to locate/compile responsive e-mails,
@ $15.00/hour
Labor, .50 hours to write program to redact, @ $28.50/hour
Labor, .50 hours to prepare for and download to CD,
@ $15.00/hour
Client Server, .50 hours to process program and make copy,
@ $2.20/hour
Materials, 1 CD @ $1.00/each
Total for materials & labor (electronic redaction/electronic
records)
$7.50
$14.25
$7.50
$5.85
$1.10
$1.00
$37.20
Postage charges may be added if the requestor wants the CD sent by mail.
192
Govt Code 552.003(3).

51
Appendix 23
3.
The governmental bodys system does not allow electronic redaction of e-mail addresses.
To provide the requestor the records in electronic format, the governmental body must print
the e-mails, manually redact the e-mail addresses, and scan the redacted e-mails into a file.
The governmental body may charge to print out and redact the e-mails that will be scanned.
The requestor wants the e-mails on a CD. The total charges for this request would be:
Printouts to be scanned, 80 pages, @ $.10/page
Labor, .50 hours to locate/compile/print responsive e-mails,
@ $15.00/hour
Labor, .50 hours to redact, @ $15.00/hour
Labor, .25 hours to scan redacted copies, @ $15.00/hour
Client Server, .05 hours to copy to CD, @ $2.20/hour
Materials, 1 CD @ $1.00/each
Total for materials and labor (manual redaction/electronic
records
$8.00
$7.50
$7.50
$3.75
$3.75
$0.18
$1.00
$31.68
Postage charges may be added if the requestor wants the CD sent by mail.
B. Charges for Inspection of Paper Records and Electronic Records

Charges for inspection of paper records are regulated by section 552.271, and charges for inspection
of electronic records are discussed in section 552.272. Section 552.271 allows charges for copies
for any page that must be copied so that confidential information may be redacted to enable the
requestor to inspect the information subject to release.193 No other charges are allowed unless194 (a)
the records to be inspected are older than five years, or (b) the records completely fill, or when
assembled will completely fill, six or more archival boxes, and (c) the governmental body estimates
it will require more than five hours to prepare the records for inspection.195 If a governmental body
has fewer than 16 full-time employees, the criteria are reduced to: (a) the records are older than three
years, or (b) the records fill, or when assembled will completely fill, three or more archival boxes,
and (c) the governmental body estimates it will require more than two hours to prepare the records
for inspection.196 An archival box is a box that measures approximately 12.5 W x 15.5 L x
10 H.197 On average, such a box would contain 4,000 pages. Only records responsive to the request
may be counted towards the number of boxes. Preparing records that fall under subsections
552.271(c) or (d) for inspection includes the time needed to locate and compile the records, redact
193
194
195
196
197
1 T.A.C. 70.2(10).

52
Appendix 23
the confidential information, and make copies of pages that require redaction. Overhead charges are
not allowed on requests for inspection of paper records.198
Section 552.272 allows charges for labor when providing access to electronic information requires
programming and/or manipulation of data, regardless of whether or not the information is available
directly on-line to the requestor.199 Searching and/or printing electronic records is neither
programming nor manipulation of data. Overhead is not allowed on requests for inspection of
electronic records.200
Example:
The requestor states she wants to inspect travel expenditure records for the past year, and then
decide whether or not she wants copies. Of the 120 pages that are responsive, 112 pages have
information that must be redacted, as required by section 552.136 and section 552.130, before
the requestor may inspect the records. The total allowable charges for this request would be:
Redacted copies, 112 @ $.10/page
Labor & Overhead
Total for inspection (redacted copies)
$11.20
$0.00
$11.20
C. Waivers or Reduction of Estimated Charges

If a governmental body determines that producing the information requested is in the public
interest because it will primarily benefit the general public, the governmental body shall waive or
reduce the charges.201 The determination of whether providing information is in the public interest
rests solely with the governmental body whose records are requested.202 Additionally, the law allows
a governmental body to waive charges if the cost of collecting the amount owed exceeds the actual
amount charged.203
D. Providing a Statement of Estimated Charges as Required by Law

If a governmental body estimates that charges will exceed $40.00, the governmental body is required
to provide the requestor with a written itemized statement of estimated charges before any work is
undertaken.204 Additionally, the statement must advise the requestor if there is a less costly method
198
Govt Code 552.271(c), (d).
199
Govt Code 552.271(a), (b).
200
Govt Code 552.271(a), (b).
201
202
203
204

53
Appendix 23
of viewing the records.205 The statement must also contain a notice that the request will be
considered automatically withdrawn if the requestor does not respond in writing within ten business
days of the date of the statement that the requestor: (a) accepts the charges, (b) modifies the request
in response to the estimate, or (c) has sent, or is sending, a complaint regarding the charges to the
attorney general.206 If the governmental body has the ability to communicate with the general public
by electronic mail and/or facsimile, the statement must also advise the requestor that a response may
be sent by either of those methods, as well as by regular mail or in person.207
Governmental bodies are cautioned that an itemized statement lacking any of the required elements
is considered to be deficient because it does not comply with the law. The consequences of
providing a deficient statement may result in (a) limiting the amount the governmental body may
recover through charges,208 and/or (b) preventing the governmental body from considering the
request withdrawn by operation of law.209
If after receiving agreement from the requestor for the charges, but before completing the request,
the governmental body determines the actual charges will exceed the agreed-upon charges by more
than 20 percent, the governmental body must provide the requestor an updated statement of
estimated charges.210 This updated statement has the same requirements as the initial statement. If
the governmental body fails to provide the updated statement of estimated charges, charges for the
entire request are limited to the initial agreed-upon estimate plus 20 percent.211 If the requestor does
not respond to the updated statement, the request is considered withdrawn.
If a request is estimated to exceed $100.00 ($50.00 if a governmental body has fewer than 16 fulltime employees), a governmental body that provides the statement of estimated charges with all its
required elements may also require that the requestor prepay, deposit a percentage of the total
amount, or provide a bond for the total amount.212 Decisions about method of payment rest with the
governmental body. A governmental body that requires a deposit or bond may consider the request
withdrawn if payment is not received within ten business days of the date the governmental body
requested the deposit or bond.213 If the requestor makes payment within the required time, the
request is considered received on the date the payment is made.214 Additionally, a governmental
body is not required to comply with a new request if a requestor owes more than $100.00 on unpaid
charges for previous requests for which the requestor was provided, and accepted, an appropriate
205
206
207
Govt Code 552.2615(a)(3).
208
1 T.A.C. 70.7(a).
209
Govt Code 552.2615.
210
211
212
Govt Code 552.263(c); 1 T.A.C. 70.7(d), (e).
213
Govt Code 552.263(f).
214
Govt Code 552.263(e).

54
Appendix 23
statement of estimated charges.215 In such cases, the governmental body may require the requestor
to pay the unpaid amounts before complying with that request. All unpaid charges must be duly
documented.216
In addition to the statement of estimated charges required when a request will exceed $40.00, a
governmental body is also required to provide a statement when it determines that a request will
require programming and/or manipulation of data and (1) complying with the request is not feasible
or will substantially interfere with the governmental bodys ongoing operation, or (2) the request can
only be fulfilled at a cost that covers the programming and/or manipulation of data.217 Governmental
bodies are cautioned that a statement under section 552.231, unlike section 552.2615, is not
contingent on the charges being over a certain amount. Rather, the statement is mandated if the
requisite conditions are present. The statement must include that the information is not available in
the form requested, in which form it is available, any contracts or services needed to put the
information in the form requested, the estimated charges calculated in accordance with the rules
promulgated by the attorney general, and the estimated time of completion to provide the information
in the form requested.218 On provision of the statement, the governmental body is not required to
provide the information in the form requested unless the requestor states, in writing, that the
requestor agrees with the estimated charges and time parameters, or that the requestor will accept
the information in the form that is currently available.219 If the requestor fails to respond to the
statement in writing within 30 days, the request is considered withdrawn.220
E. Cost Provisions Regarding Requests that Require a Large Amount of

Personnel Time
Section 552.275 authorizes a governmental body to establish a reasonable limit, not less than 36
hours in a 12 month period, on the amount of time that personnel are required to spend producing
public information for inspection or copies to a requestor, without recovering the costs attributable
to the personnel time related to that requestor.221 If a governmental body chooses to establish a time
limit under this section, a requestor will be required to compensate the governmental body for the
costs incurred in satisfying subsequent requests once the time limit has been reached. A limit under
this section does not apply if the requestor is an elected official of the United States, the State of
Texas, or a political subdivision of the State of Texas; or a representative of (a) a radio or television
station that holds a license issued by the Federal Communications Commission; (b) a newspaper that
is qualified under section 2051.044 of the Government Code to publish legal notices or is a free
newspaper of general circulation that is published at least once a week and available and of interest
to the general public in connection with the dissemination of news; (c) a newspaper of general
215
Govt Code 552.263(c); 1 T.A.C. 70.7(f).
216
Govt Code 552.263(c); 1 T.A.C. 70.7(f).
217
218
219
220
Govt Code 552.231(d-1).
221
Govt Code 552.275(a), (b).

55
Appendix 23
circulation that is published on the Internet by a news medium engaged in the business of
disseminating news or information to the general public; (d) a magazine that is published at least
once a week or on the Internet by a news medium engaged in the business of disseminating news or
information to the general public; or (e) a publicly funded legal services organization that is exempt
from federal income taxation by being listed as a 501(c)(3) entity under section 501(a) of the
Internal Revenue Code of 1986.222 Section 552.275 does not replace or supercede other sections, and
it does not preclude a governmental body from charging labor for a request for inspection or copies
for inspection for which a charge is authorized under other sections of this law.
On establishing the time limit, a governmental body must make it clear to all requestors that the limit
applies to all requestors equally, except as provided by the exemptions of subsections (j), (k), and
(l). A governmental body that avails itself of section 552.275 must provide a requestor with a
statement detailing the time spent in complying with the instant request and the cumulative amount
of time the requestor has accrued towards the established limit.223 A governmental body may not
charge for the time spent preparing the statement.224 If a requestor meets or exceeds the established
limit, the governmental body may assess charges for labor, overhead, and material for all subsequent
requests. The governmental body is required to provide a written estimate within ten business days
of receipt of the request, even if the estimated total will not exceed $40.00. All charges assessed
under section 552.275 must be in compliance with the rules promulgated by the attorney general.225
F.
Complaints Regarding Alleged Overcharges
Estimates are, by their very nature, imperfect. Therefore, governmental bodies are encouraged to
run tests on sample data and to rely on the results of those tests in calculating future charges.
However, even when a governmental body has taken steps to ensure that a charge is appropriate, a
requestor may still believe that the charges are too high. Section 552.269 states that a requestor who
believes he or she has been overcharged may lodge a complaint with the attorney general.226 The
attorney general reviews, investigates, and makes determinations on complaints of overcharges.
Complaints must be received within ten business days after the requestor knows of the alleged
overcharge, and must include a copy of the original request, and any amendments thereto, as well
as a copy of any correspondence from the governmental body stating the charges. If a complainant
does not provide the required information within the established time frame, the complaint is
dismissed.227
When a complaint is lodged against a governmental body, the attorney general will contact the
governmental body, generally by mail, to obtain information on how the charges were calculated,
and the physical location and state of the records. The governmental body may also be asked to
222
Govt Code 552.275(j).
223
224
225
226
227
1 T.A.C. 70.8(b).

56
Appendix 23
provide copies of invoices, contracts, and any other relevant documents.228 The attorney general may
uphold the charges as presented to the requestor, require the issuance of an amended statement of
estimated charges, or, if the requestor has already paid the charges, require the issuance of a refund
for the difference between what was paid and the charges that are determined to be appropriate.229
A governmental body may be required to pay three times the difference if it is determined that a
requestor overpaid because the governmental body refused or failed to follow the attorney general
rules and the charges were not calculated in good faith.230
G. Cost Provisions Outside the Public Information Act

The provisions of section 552.262 do not apply if charges for copies are established by another
statute.231 For example, section 550.065 of the Transportation Code establishes a charge of $6.00
for an accident report maintained by a governmental entity.232 Section 118.011 of the Local
Government Code establishes the charge for a non-certified copy of information obtained from the
county clerk.233 Section 118.144 of the Local Government Code also establishes a charge for copies
obtained from the county treasurer.234 Additionally, the attorney general has determined that section
191.008 of the Local Government Code prevails over section 552.272, by giving a county
commissioners court the right to set charges regarding access to certain information held by the
county.235
VIII.
PENALTIES AND REMEDIES
A. Informal Resolution of Complaints

The Office of the Attorney General maintains an Open Government Hotline staffed by personnel
trained to answer questions about the Public Information Act. In addition to answering substantive
and procedural questions posed by governmental bodies and requestors, the Hotline staff handles
written, informal complaints concerning requests for information. While not meant as a substitute
for the remedies provided in sections 552.321 and 552.3215, the Hotline provides an informal
alternative for complaint resolution. In most cases, Hotline staff are able to resolve complaints and
misunderstandings informally. The Hotline can be reached toll-free at (877) 673-6839 (877-OPEN
TEX) or in the Austin area at (512) 478-6736 (478-OPEN). Questions concerning charges for
providing public information should be directed to the attorney generals toll-free Cost Hotline
at (888) 672-6787 (888-ORCOSTS) or in the Austin area at (512) 475-2497.
228
1 T.A.C. 70.8(c), (d), (e).
229
1 T.A.C. 70.8(f).
230
Govt Code 552.269(b); 1 T.A.C. 70.8(h).
231
232
Transp. Code 550.065(d).
233
Local Govt Code 118.011(a)(4), .0145, .052(3)(C), .0605.
234
Local Govt Code 118.144.
235
Local Govt Code 191.008; Open Records Decision No. 668 at 9 (2000).

57
Appendix 23
B.
Criminal Penalties
The Public Information Act establishes criminal penalties for both the release of information that
must not be disclosed and the withholding of information that must be released. Section 552.352(a)
of the Act provides: A person commits an offense if the person distributes information considered
confidential under the terms of this chapter. This section applies to information made confidential
by law.236
Section 552.353(a) provides:
An officer for public information, or the officers agent, commits an offense if, with
criminal negligence, the officer or the officers agent fails or refuses to give access to, or to
permit or provide copying of, public information to a requestor as provided by this
chapter.
Subsections (b) through (d) of section 552.353 set out various affirmative defenses to prosecution
under subsection (a), including, for example, that a timely request for a decision from the attorney
general is pending or that the officer for public information is pursuing judicial relief from
compliance with a decision of the attorney general pursuant to section 552.324.237 A violation of
section 552.352 or section 552.353 constitutes official misconduct238 and is a misdemeanor
punishable by confinement in a county jail for not more than six months, a fine not to exceed $1,000,
or both confinement and the fine.239
The Act also criminalizes the destruction, alteration or concealment of public records. Section
552.351 provides that the willful destruction, mutilation, removal without permission, or alteration
of public records is a misdemeanor punishable by confinement in a county jail for a minimum of
three days and a maximum of three months, a fine of a minimum of $25.00 and a maximum of
$4,000, or both confinement and the fine.240
C. Civil Remedies
1. Writ of Mandamus
Section 552.321 of the Act provides for a suit for a writ of mandamus to compel a governmental
body to release requested information. A requestor or the attorney general may seek a writ of
mandamus to compel a governmental body to release requested information if the governmental
body refuses to seek an attorney general decision, refuses to release public information or if the
236
See Open Records Decision No. 490 (1988).
237
Govt Code 552.353(b)(23). See generally Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W .2d 546,
54849 (Tex. App. Austin 1983, writ refd n.r.e.).
238
Govt Code 552.352(c), .353(f).
239
Govt Code 552.352(b), .353(e).
240
Govt Code 552.351(a); see also Penal Code 37.10 (tampering with governmental record).

58
Appendix 23
governmental body refuses to release information in accordance with an attorney general decision.241
Section 552.321(b) provides that a mandamus action filed by a requestor under section 552.321 must
be filed in a district court of the county in which the main offices of the governmental body are
located. A mandamus suit filed by the attorney general under section 552.321 must be filed in a
district court in Travis County, except if the suit is against a municipality with a population of
100,000 or less, in which case the suit must be filed in a district court of the county where the main
offices of the municipality are located.242
Section 552.321 authorizes a mandamus suit to compel the release of information even if the
attorney general has ruled such information is not subject to required public disclosure.243 Moreover,
courts have held a requestor may bring a mandamus action regardless of whether an attorney general
decision has been requested.244 A requestor may counterclaim for mandamus as part of his or her
intervention in a suit by a governmental body or third party over a ruling that orders information to
be disclosed.245
2. Violations of the Act: Declaratory Judgment or Injunctive Relief; Formal Complaints
Section 552.3215 provides for a suit for declaratory judgment or injunctive relief brought by the
attorney general or a local prosecutor against a governmental body that violates the Public
Information Act.
a. Venue and Proper Party to Bring Suit
An action against a governmental body located in only one county may be brought only in a district
court in that county. The action may be brought either by the district or county attorney on behalf
of that county, or by the attorney general on behalf of the state. If the governmental body is located
in more than one county, such a suit must be brought in the county where the governmental bodys
administrative offices are located.246 If the governmental body is a state agency, the Travis County
district attorney or the attorney general may bring such suit only in a district court of Travis
County.247
241
Govt Code 552.321(a); see Thomas v. Cornyn, 71 S.W.3d 473, 482 (Tex. App. Austin 2002, no pet.).
242
243
Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex. App. Austin 2002, no pet.); Tex. Dept of Pub. Safety v. Gilbreath,
842 S.W.2d 408, 411 (Tex. App. Austin 1992, no writ).
244
Thomas v. Cornyn, 71 S.W .3d 473, 483 (Tex. App. Austin 2002, no pet.); Tex. Dept of Pub. Safety v. Gilbreath,
842 S.W .2d 408, 411 (Tex. App. Austin 1992, no writ); see Open Records Decision No. 687 (2011)(attorney
general will rule on claimed exceptions to disclosure when, prior to issuance of open records decision, party brings
action before Texas court posing same open records question).
245
Thomas v. Cornyn, 71 S.W.3d 473, 482 (Tex. App. Austin 2002, no pet.).
246
247

59
Appendix 23
b. Suit Pursuant to Formal Complaint

Before suit may be filed under section 552.3215, a person must first file a complaint alleging a
violation of the Act. The complaint must be filed with the district or county attorney of the county
where the governmental body is located. If the governmental body is located in more than one
county, the complaint must be filed with the district or county attorney of the county where the
governmental bodys administrative offices are located. If the governmental body is a state agency,
the complaint may be filed with the Travis County district attorney. If the governmental body is the
district or county attorney, the complaint must be filed with the attorney general.248
c. Procedures for Formal Complaint
A complaint must be in writing and signed by the complainant and include the name of the
governmental body complained of, the time and place of the alleged violation, and a general
description of the violation.249 The district or county attorney receiving a complaint must note on
its face the date it was filed and must, before the 31st day after the complaint was filed, determine
whether the alleged violation was committed, determine whether an action will be brought under the
section, and notify the complainant in writing of those determinations.250 If the district or county
attorney determines not to bring suit under the section, or determines that a conflict of interest exists
that precludes his bringing suit, then he or she must include a statement giving the basis for such
determination and return the complaint to the complainant by the 31st day after receipt of the
complaint.251
If the county or district attorney decides not to bring an action in response to a complaint filed with
that office, the complainant may, before the 31st day after the complaint is returned, file the
complaint with the attorney general. On receipt of the complaint, the attorney general within the
same time frame must make the determinations and notification required of a district or county
attorney. If the attorney general decides to bring an action in response to a complaint against a
governmental body located in only one county, the attorney general must file such action in a district
court of that county.252
d. Governmental Body Must Be Given Opportunity to Cure Violation
Actions for declaratory judgment or injunctive relief under section 552.3215 may be brought only
if the official proposing to bring the action notifies the governmental body in writing of the
determination that the alleged violation was committed and the governmental body does not cure the
violation before the fourth day after the date it receives the notice.253
248
249
250
Govt Code 552.3215(f)(g).
251
Govt Code 552.3215(h).
252
Govt Code 552.3215(i).
253
Govt Code 552.3215(j).

60
Appendix 23
e. Cumulative Remedy
Actions for declaratory judgment or injunctive relief authorized under section 552.3215 are in
addition to any other civil, administrative, or criminal actions authorized by law.254
3. Suits over an Open Records Ruling
The Act provides judicial remedies for a governmental body seeking to withhold requested
information or a third party asserting a privacy or proprietary interest in requested information when
the attorney general orders such information to be disclosed.255 The venue for these suits against the
attorney general is Travis County. The issue of whether the information is subject to disclosure is
decided by the court anew. The court is not bound by the ruling of the attorney general. However,
the only exceptions to disclosure a governmental body may raise before the court are exceptions that
it properly raised in a request for an attorney general decision under section 552.301, unless the
exception is one based on a requirement of federal law or one involving the property or privacy
interests of another person.256
The El Paso court of appeals in Morales v. Ellen affirmed that the district court had jurisdiction to
decide a declaratory judgment action brought against a governmental body by a third party which
asserted privacy interests in documents the attorney general had ruled should be released.257 The
court held the statutory predecessor to section 552.305(b)which permitted a third party whose
privacy or property interests would be implicated by the disclosure of the requested information to
submit in writing to the attorney general the partys reasons why the information should be withheld
or releasedis permissive and does not require a third party with a property or privacy interest to
exhaust this remedy before seeking relief in the courts.258 The legislature then enacted
section 552.325 which recognizes the legal interests of third parties and their right to sue the attorney
general to challenge a ruling that information must be released.
Sections 552.324 and 552.325 prohibit a governmental body, officer for public information, or other
person or entity that wishes to withhold information from filing a lawsuit against a requestor. The
only suit a governmental body or officer for public information may bring is one against the attorney
general.259 Section 552.324(b) requires that a suit by a governmental body be brought no later than
the 30th calendar day after the governmental body receives the decision it seeks to challenge. If suit
is not timely filed under the section, the governmental body must comply with the attorney generals
decision. The deadline for filing suit under section 552.324 does not affect the earlier ten day
254
Govt Code 552.3215(k).
255
Govt Code 552.324, .325.
256
Govt Code 552.326; City of Dallas v. Abbott, 304 S.W .3d 380, 392 (Tex. 2010); Tex. Comptroller of Pub.
Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336, 340 (Tex. 2010).
257
Morales v. Ellen, 840 S.W.2d 519, 523 (Tex. App.El Paso 1992, writ denied).
258
Morales v. Ellen, 840 S.W.2d 519, 523 (Tex. App.El Paso 1992, writ denied).
259

61
Appendix 23
deadline required of a governmental body to file suit in order to establish an affirmative defense to
prosecution of a public information officer under section 552.353(b)(3).260
Section 552.325 provides that a requestor may intervene in a suit filed by a governmental body or
another entity to prevent disclosure. The section includes procedures for notice to the requestor of
the right to intervene and of any proposed settlement between the attorney general and a plaintiff by
which the parties agree that the information should be withheld.
Sometimes during the pendency of a suit challenging a ruling, the requestor will voluntarily
withdraw his or her request, or the requestor may no longer be found. Section 552.327 authorizes
a court to dismiss a suit challenging an attorney general ruling if all parties to the suit agree to the
dismissal and the attorney general determines and represents to the court that the requestor has
voluntarily withdrawn the request for information in writing, or has abandoned the request.261 In
such cases, a governmental body will not be precluded from asking for another ruling on the same
information at issue after the suit is dismissed by the court.262
4. Discovery and Courts In Camera Review of Information Under Protective Order
Section 552.322 authorizes a court to order that information at issue in a suit under the Act may be
discovered only under a protective order until a final determination is made. When suit is filed
challenging a ruling, the attorney general will seek access to the information at issue either
informally or by way of this section, because the attorney general returns the information to the
governmental body upon issuance of a ruling.
Section 552.3221, added to the Act by the Eighty-third Legislature, permits a party to file the
information at issue with the court for in camera inspection as necessary for the adjudication of
cases.263 When the court receives the information for review, the court must enter an order that
prevents access to the information by any person other than the court, a reviewing court of appeals
or parties permitted to inspect the information pursuant to a protective order.264 Information filed
with the court under section 552.3221 does not constitute court records under Rule 76a of the Texas
Rules of Civil Procedure and shall not be available by the clerk or any custodian of record for public
disclosure.265
D. Assessment of Costs of Litigation and Reasonable Attorneys Fees

Section 552.323 of the Act provides that in a suit for mandamus under section 552.321 or for
declaratory judgment or injunctive relief under section 552.3215, the court shall assess costs of
260
261
Govt Code 552.327.
262
Govt Code 552.327.
263
Act of May 20, 2013, 83rd Leg., R.S., S.B. 983, 1 (to be codified at Govt Code 552.3221(a)).
264
Act of May 20, 2013, 83rd Leg., R.S., S.B. 983, 1 (to be codified at Govt Code 552.3221(b)).
265
Act of May 20, 2013, 83rd Leg., R.S., S.B. 983, 1 (to be codified at Govt Code 552.3221(c)).

62
Appendix 23
litigation and reasonable attorneys fees incurred by a plaintiff who substantially prevails.266
However, a court may not assess such costs and attorneys fees against the governmental body if the
court finds that it acted in reasonable reliance on a judgment or order of a court applicable to that
governmental body, the published opinion of an appellate court, or a written decision of the attorney
general.267 In addition, a requestor who is an attorney representing himself in a suit to require a
governmental body to disclose requested information under the Act is not entitled to attorneys fees
because the requestor did not incur attorneys fees.268
The court may assess attorneys fees and costs in a suit brought under section 552.324 by a
governmental body against the attorney general challenging a ruling that ordered information to be
disclosed.269 The trial court has discretion to award attorneys fees and costs incurred by a plaintiff
or defendant who substantially prevails in a suit brought under section 552.324.270 In exercising its
discretion as to the assessment of such costs and attorneys fees, a court must consider whether the
conduct of the officer for public information of the governmental body had a reasonable basis in law
and whether the suit was brought in good faith.271
IX. PRESERVATION AND DESTRUCTION OF RECORDS

Subject to state laws governing the destruction of state and local government records, section
552.004 of the Act addresses the preservation period of noncurrent records. Sections 441.180
through 441.205 of the Government Code provide for the management, preservation, and destruction
of state records under the guidance of the Texas State Library and Archives Commission.272
Provisions for the preservation, retention, and destruction of local government records under the
oversight of the Texas State Library and Archives Commission are set out in chapters 201 through
205 of the Local Government Code.
Section 552.0215 of the Act provides that with the exception of information subject to section
552.147 or a confidentiality provision, information that is not confidential but merely excepted from
required disclosure under the Act is public information and is available to the public on or after the
75th anniversary of the date the information was originally created or received by the governmental
body.273 This section does not, however, limit the authority of a governmental body to establish
retention periods for records under applicable law.274
266
267
268
Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 300 (Tex. 2011).
269
270
Govt Code 552.323(b); Dallas Morning News v. City of Arlington, No. 03-10-00192-CV, 2011 W L 182886 at *4
(Tex. App. Austin, Jan. 21, 2011, no pet.) (mem. op.) (citys voluntary release of requested public information
does not make requestor prevailing party).
271
Govt Code 552.323(b); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000).
272
See, e.g., Attorney General Opinions DM-181 at 3 (1992), JM-1013 at 2, 56 (1989), JM-229 at 5 (1984).
273
274

63
Appendix 23
Section 552.203 provides that the officer for public information, subject to penalties provided in
this chapter, has the duty to see that public records are protected from deterioration, alteration,
mutilation, loss, or unlawful removal and that they are repaired as necessary.275 Public records may
be destroyed only as provided by statute.276 A governmental body may not destroy records even
pursuant to statutory authority while they are subject to an open records request.277
X.
PUBLIC INFORMATION ACT DISTINGUISHED FROM

CERTAIN OTHER STATUTES
A. Authority of the Attorney General to Issue Attorney General Opinions

The attorney general has authority pursuant to article IV, section 22, of the Texas Constitution and
sections 402.041 through 402.045 of the Government Code to issue legal opinions to certain public
officers. These officers are identified in sections 402.042 and 402.043 of the Government Code.
The attorney general may not give legal advice or a written opinion to any other person.278
On the other hand, the Public Information Act requires a governmental body to request a ruling from
the attorney general if it receives a written request for records that it believes to be within an
exception set out in subchapter C of the Act, sections 552.101 through 552.154, and there has not
been a previous determination about whether the information falls within the exception.279 Thus, all
governmental bodies have a duty to request a ruling from the attorney general under the
circumstances set out in section 552.301. A much smaller group of public officers has discretionary
authority to request attorney general opinions pursuant to chapter 402 of the Government Code. A
school district, for example, is a governmental body that must request open records rulings as
required by section 552.301 of the Public Information Act, but has no authority to seek legal advice
on other matters from the attorney general.280
Additionally, the Public Information Act gives the attorney general the authority to issue written
decisions and opinions in order to maintain uniformity in the application, operation, and
interpretation of the Act.281
275
See also Govt Code 552.351 (penalty for willful destruction, mutilation, removal without permission or alteration
of public records).
276
See generally Attorney General Opinions DM-40 (1991) (deleting records), JM -830 (1987) (sealing records),
MW -327 (1981) (expunging or altering public records).
277
Local Govt Code 202.002(b); Open Records Decision No. 505 at 4 (1988).
278
Govt Code 402.045.
279
Govt Code 552.301(a); see Open Records Decision No. 673 (2001) (defining previous determination).
280
See generally Attorney General Opinion DM-20 at 36 (1991).
281
Govt Code 552.011.

64
Appendix 23
B.
Texas Open Meetings Act
The Public Information Act, Government Code chapter 552, and the Open Meetings Act,
Government Code chapter 551, both serve the purpose of opening government to the people.
However, they operate differently, and each has a different set of exceptions. The exceptions in the
Public Information Act do not furnish a basis for holding executive session meetings to discuss
confidential records.282 Furthermore, the mere fact that a document was discussed in an executive
session does not make it confidential under the Public Information Act.283 Since the Open Meetings
Act has no provision comparable to section 552.301 of the Public Information Act, the attorney
general may address questions about the Open Meetings Act only when such questions are submitted
by a public officer with authority to request attorney general opinions pursuant to chapter 402 of the
Government Code. (A companion volume to this Handbook, the Open Meetings Act Handbook, is
also available from the Office of the Attorney General.) In Open Records Decision No. 684 (2009),
the attorney general issued a previous determination to all governmental bodies authorizing them to
withhold certified agendas and tapes of closed meetings under section 552.101 in conjunction with
section 551.104 of the Government Code, without the necessity of requesting an attorney general
decision.284
C. Discovery Proceedings
The Public Information Act differs in purpose from statutes and procedural rules providing for
discovery of documents in administrative and judicial proceedings.285 The Acts exceptions to
required public disclosure do not create privileges from discovery of documents in administrative
or judicial proceedings.286 Furthermore, information that might be privileged from discovery is not
necessarily protected from required public disclosure under the Act.287
282
See Attorney General Opinion JM-595 at 4 (1986).
283
City of Garland v. Dallas Morning News, 22 S.W .3d 351, 367 (Tex. 2000); Open Records Decision No. 485 at 910
(1987); see also Open Records Decision No. 605 at 23 (1992).
284
285
Attorney General Opinion JM-1048 at 2 (1989); Open Records Decision Nos. 551 at 4 (1990), 108 (1975).
286
Govt Code 552.005.
287
See Open Records Decision No. 575 at 2 (1990) (discovery privileges in Texas Rules of Evidence not confidentiality
provisions for purpose of Govt Code 552.101). But see Open Records Decision Nos. 677 (2002) (analyzing work
product privilege in context of Act), 676 (2002) (analyzing attorney-client privilege in context of Act).

65
Appendix 23
Exceptions to Disclosure
PART TWO: EXCEPTIONS TO DISCLOSURE

I. INFORMATION GENERALLY CONSIDERED TO BE PUBLIC
A. Section 552.022 Categories of Information
1. Section 552.022 Categories of Information
Section 552.022 of the Public Information Act provides that [w]ithout limiting the amount or kind
of information that is public information under this chapter, the following categories of information
are public information and not excepted from required disclosure unless made confidential under this
chapter or other law . . . .288 Section 552.022(a) then lists eighteen categories of information.
Section 552.022(a) is not an exhaustive list of the types of information subject to the Public
Information Act.289 Rather, it is a list of information that generally may be withheld only if it is
expressly confidential by law.290 Thus, the Acts permissive exceptions to disclosure generally do
not apply to the categories of information contained in section 552.022.291
a. Discovery Privileges
The laws under which information may be considered confidential for the purpose of section 552.022
are not limited simply to statutes and judicial decisions that expressly make information
confidential.292 The Texas Supreme Court has held that discovery privileges included in the Texas
Rules of Civil Procedure and the Texas Rules of Evidence are also other law that may make
information confidential for the purpose of section 552.022.293 Therefore, even if information is
included in one of the eighteen categories of information listed in section 552.022(a), and as a result
the information cannot be withheld under an exception listed in the Act, the information is still
protected from disclosure if a governmental body can demonstrate that the information is privileged
under the Texas Rules of Evidence or the Texas Rules of Civil Procedure.294
For example, sections 552.107 and 552.111 of the Government Code encompass the attorney-client
privilege and the work product privilege respectively. Because both sections 552.107 and 552.111
are permissive exceptions found in the Public Information Act, they do not make information
confidential nor are they considered other law for the purpose of section 552.022 of the
288
Govt Code 552.022.
289
See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 359 (Tex. 2000).
290
Govt Code 552.022(a); Thomas v. Cornyn, 71 S.W.3d 473, 480 (Tex. App. Austin 2002, no pet.).
291
See In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001). But see Govt Code 552.022(a)(1) (completed
report, audit or evaluation may be withheld under Govt Code 552.108), .104(b) (information subject to
Govt Code 552.022 may be withheld under Govt Code 552.104(a)), .133(c) (information subject to Govt
Code 552.022 may be withheld under Govt Code 552.133).
292
See Govt Code 552.022(a); In re City of Georgetown, 53 S.W.3d 328, 33237 (Tex. 2001).
293
In re City of Georgetown, 53 S.W .3d 328, 337 (Tex. 2001); see Open Records Decision Nos. 677 at 9 (2002), 676
at 2 (2002); see generally T EX . R. E VID . 501513; T EX . R. C IV . P. 192.5.
294
In re City of Georgetown, 53 S.W.3d 328, 33334, 337 (Tex. 2001).

66
Appendix 23
Government Code. Therefore, neither section 552.107 nor section 552.111 may be used to withhold
information subject to section 552.022.295 Nevertheless, the attorney-client privilege and the work
product privilege are also found in the Texas Rules of Evidence and the Texas Rules of Civil
Procedure respectively.296 A governmental body claiming the attorney-client privilege for a
document that is subject to section 552.022 of the Government Code should raise Texas Rule of
Evidence 503, not section 552.107 of the Government Code, in order to withhold the information.297
If the governmental body demonstrates that rule 503 applies to part of a communication, generally
the entire communication will be protected.298 However, a fee bill is not excepted in its entirety if
a governmental body demonstrates that a portion of the fee bill contains or consists of an attorneyclient communication.299 Rather, information in an attorney fee bill may only be withheld to the
extent the particular information in the fee bill is demonstrated to be subject to the attorney-client
privilege.300
Similarly, a governmental body claiming the work product privilege for a document that is subject
to section 552.022 of the Government Code should raise Rule 192.5 of the Texas Rules of Civil
Procedure, not section 552.111 of the Government Code, in order to withhold the information.301
Moreover, information is confidential for the purpose of section 552.022 under rule 192.5 only to
the extent the information implicates the core work product aspect of the privilege.302 Other work
product is discoverable under some circumstances and therefore is not considered to be confidential
for the purpose of section 552.022.303
b. Court Order
Section 552.022(b) prohibits a court in this state from ordering a governmental body to withhold
from public disclosure information in the section 552.022 categories unless the information is
confidential under the Act or other law.304 Thus, although section 552.107(2) of the Act excepts
from disclosure information that a court has ordered to be kept confidential, section 552.022
effectively limits the applicability of that subsection and the authority of a court to order
confidentiality.305
295
Open Records Decision Nos. 677 at 8 (2002), 676 at 5 (2002); see In re City of Georgetown, 53 S.W .3d 328, 331
(Tex. 2001).
296
See T EX . R. E VID . 503; T EX . R. C IV . P. 192.5.
297
298
See Huie v. DeShazo, 922 S.W .2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts
contained therein); In re Valero Energy Corp., 973 S.W .2d 453, 457 (Tex. App. Houston [14th Dist.] 1998, orig.
proceeding) (privilege attaches to complete communication, including factual information).
299
300
301
302
303
304
Govt Code 552.022.
305
See Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001).

67
Appendix 23
2. Certain Investment Information

Section 552.0225 provides that certain investment information is public and not excepted from
disclosure under the Act. The section provides:
(a)
Under the fundamental philosophy of American government described by Section

552.001, it is the policy of this state that investments of government are investments
of and for the people and the people are entitled to information regarding those
investments. The provisions of this section shall be liberally construed to implement
this policy.
(b)
The following categories of information held by a governmental body relating to its

investments are public information and not excepted from disclosure under this
chapter:
(1) the name of any fund or investment entity the governmental body is or has
invested in;
(2) the date that a fund or investment entity described by Subdivision (1) was
established;
(3) each date the governmental body invested in a fund or investment entity
described by Subdivision (1);
(4) the amount of money, expressed in dollars, the governmental body has committed
to a fund or investment entity;
(5) the amount of money, expressed in dollars, the governmental body is investing or
has invested in any fund or investment entity;
(6) the total amount of money, expressed in dollars, the governmental body received
from any fund or investment entity in connection with an investment;
(7) the internal rate of return or other standard used by a governmental body in
connection with each fund or investment entity it is or has invested in and the date
on which the return or other standard was calculated;
(8) the remaining value of any fund or investment entity the governmental body is or
has invested in;
(9) the total amount of fees, including expenses, charges, and other compensation,
assessed against the governmental body by, or paid by the governmental body to,
any fund or investment entity or principal of any fund or investment entity in
which the governmental body is or has invested;

68
Appendix 23
(10) the names of the principals responsible for managing any fund or investment
entity in which the governmental body is or has invested;
(11) each recusal filed by a member of the governing board in connection with a
deliberation or action of the governmental body relating to an investment;
(12) a description of all of the types of businesses a governmental body is or has
invested in through a fund or investment entity;
(13) the minutes and audio or video recordings of each open portion of a meeting of
the governmental body at which an item described by this subsection was
discussed;
(14) the governmental bodys percentage ownership interest in a fund or investment
entity the governmental body is or has invested in;
(15) any annual ethics disclosure report submitted to the governmental body by a
fund or investment entity the governmental body is or has invested in; and
(16) the cash-on-cash return realized by the governmental body for a fund or
investment entity the governmental body is or has invested in.
(c)
This section does not apply to the Texas Mutual Insurance Company or a successor
to the company.
(d)
This section does not apply to a private investment funds investment in restricted
securities, as defined in Section 552.143.306
There are no cases or formal opinions interpreting this section. Section 552.143 excepts certain
investment information from disclosure that is not made public under section 552.0225.307 The
attorney general has determined in an informal letter ruling that section 552.143 is subject to the
public disclosure requirements of section 552.0225.308
3. Other Kinds of Information that May Not Be Withheld
As a general rule, a governmental body may not use one of the exceptions in the Act to withhold
information that a statute other than the Act expressly makes public.309 For example, a governmental
306
Govt Code 552.0225.
307
Govt Code 552.143.
308
Open Records Letter No. 2005-6095 (2005).
309
Open Records Decision No. 623 (1994); see also Open Records Decision Nos. 675 (2001) (federal statute requiring
release of cost reports of nursing facilities prevails over claim that information is excepted from disclosure under
Govt Code 552.110), 451 (1986) (specific statute that affirmatively requires release of information at issue
prevails over litigation exception of Public Information Act); cf. Houston Chronicle Publg Co. v. Woods, 949
S.W .2d 492 (Tex. App. Beaumont 1997, orig. proceeding) (concerning public disclosure of affidavits in support

69
Appendix 23
body may not withhold the minutes of an open meeting under the Acts exceptions since such
minutes are made public by statute.310
II. EXCEPTIONS
A. Section 552.101: Confidential Information
Section 552.101 of the Government Code provides as follows:
Information is excepted from [required public disclosure] if it is information considered
to be confidential by law, either constitutional, statutory, or by judicial decision.
This section makes clear that the Public Information Act does not mandate the disclosure of
information that other law requires be kept confidential. Section 552.352(a) states: A person
commits an offense if the person distributes information considered confidential under the terms of
this chapter.311 A violation under section 552.352 is a misdemeanor constituting official
misconduct.312 In its discretion, a governmental body may release to the public information protected
under the Acts exceptions to disclosure but not deemed confidential by law.313 On the other hand,
a governmental body has no discretion to release information deemed confidential by law.314
Because the Act prohibits the release of confidential information and because its improper release
constitutes a misdemeanor, the attorney general may raise section 552.101 on behalf of a
governmental body, although the attorney general ordinarily will not raise other exceptions that a
governmental body has failed to claim.315
By providing that all information a governmental body collects, assembles, or maintains is public
unless expressly excepted from disclosure, the Act prevents a governmental body from making an
enforceable promise to keep information confidential unless the governmental body is authorized
by law to do so.316 Thus, a governmental body may rely on its promise of confidentiality to withhold
information from disclosure only if the governmental body has specific statutory authority to make
such a promise. Unless a governmental body is explicitly authorized to make an enforceable promise
to keep information confidential, it may not make such a promise in a confidentiality agreement such
of executed search warrants).

310
Govt Code 551.022; see Open Records Decision No. 225 (1979).
311
312
Govt Code 552.352(b), (c).
313
Govt Code 552.007; see Dominguez v. Gilbert, 48 S.W.3d 789, 793 (Tex. App. Austin 2001, no pet.).
314
See Govt Code 552.007; Dominguez v. Gilbert, 48 S.W .3d 789, 793 (Tex. App. Austin 2001, no pet.). But see
discussion of informers privilege in Part Two, Section II, Subsection A.2.b of this Handbook.
315
316
Attorney General Opinion H-258 at 3 (1974); see Attorney General Opinions JM-672 at 12 (1987), JM-37 at 2
(1983); Open Records Decision Nos. 585 at 2 (1991), 514 at 1 (1988), 55A at 2 (1975).

70
Appendix 23
as a contract317 or a settlement agreement.318 In addition, a governmental body may not pass an

ordinance or rule purporting to make certain information confidential unless the governmental body
is statutorily authorized to do so.319
1. Information Confidential Under Specific Statutes
Section 552.101 incorporates specific statutes that protect information from public disclosure. The
following points are important for the proper application of this aspect of section 552.101:
1)
The language of the relevant confidentiality statute controls the scope of the protection.320
2)
To fall within section 552.101, a statute must explicitly require confidentiality; a

confidentiality requirement will not be inferred from the statutory structure.321
a. State Statutes
The attorney general must interpret numerous confidentiality statutes. Examples of information
made confidential by statute include the following noteworthy examples:
medical records that a physician creates or maintains regarding the identity, diagnosis,
evaluation, or treatment of a patient;322
reports, records, and working papers used or developed in an investigation of alleged child
abuse or neglect under Family Code chapter 261;323
certain information relating to the provision of emergency medical services;324
communications between a patient and a mental health professional and records of the identity,
diagnosis, or treatment of a mental health patient created or maintained by a mental health
professional;325
317
See Attorney General Opinion JM-672 at 2 (1987); Open Records Decision No. 514 at 1 (1988).
318
319
See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977);
Envoy Med. Sys. v. State, 108 S.W .3d 333, 337 (Tex. App. Austin 2003, no pet.); Open Records Decision No. 594
at 3 (1991).
320
321
See, e.g., Open Records Decision No. 465 at 45 (1987).
322
Occ. Code 159.002(b); see Abbott v. Tex. State Bd. of Pharmacy, 391 S.W .3d 253, 258 (Tex. App. Austin 2012)
(Medical Practice Act does not provide patient general right of access to medical records from governmental body
responding to request for information under Public Information Act); Open Records Decision No. 681 at 1617
(2004).
323
Fam. Code 261.201(a).
324
Health & Safety Code 773.091; see Open Records Decision No. 681 at 1718 (2004).
325
Health & Safety Code 611.002.

71
Appendix 23
certain personal information in a government-operated utility customers account records if the

customer has requested that the utility keep the information confidential.326
In the following examples, the attorney general has interpreted the scope of confidentiality provided
by Texas statutes under section 552.101:
Open Records Decision No. 658 (1998) section 154.073 of the Civil Practice and Remedies
Code does not make confidential a governmental bodys mediated final settlement agreement;327
Open Records Decision No. 655 (1997) concerning confidentiality of criminal history record
information and permissible interagency transfer of such information;
Open Records Decision No. 649 (1996) originating telephone numbers and addresses
furnished on a call-by-call basis by a service supplier to a 9-1-1 emergency communication
district established under subchapter D of chapter 772 of the Health and Safety Code are
confidential under section 772.318 of the Health and Safety Code. Section 772.318 does not
except from disclosure any other information contained on a computer-aided dispatch report that
was obtained during a 9-1-1 call;
Open Records Decision No. 643 (1996) section 21.355 of the Education Code makes
confidential any document that evaluates, as that term is commonly understood, the performance
of a teacher or administrator. The term teacher, as used in section 21.355, means an individual
who is required to hold and does hold a teaching certificate or school district teaching permit
under subchapter B of chapter 21, and who is engaged in teaching at the time of the evaluation;
an administrator is a person who is required to hold and does hold an administrators certificate
under subchapter B of chapter 21 and is performing the functions of an administrator at the time
of the evaluation;
Open Records Decision No. 642 (1996) section 143.1214(b) of the Local Government Code
requires the City of Houston Police Department to withhold documents relating to an
investigation of a City of Houston fire fighter conducted by the City of Houston Police
Departments Public Integrity Review Group when the Public Integrity Review Group has
concluded that the allegations were unfounded;
Open Records Decision No. 640 (1996) (replacing Open Records Decision No. 637 (1996))
the Texas Department of Insurance must withhold any information obtained from audit work
papers that are pertinent to the accountants examination of the financial statements of an
insurer under section 8 of article 1.15 of the Insurance Code; section 9 of article 1.15 makes
confidential the examination reports and related work papers obtained during the course of an
326
Util. Code 182.052.
327
The Seventy-sixth Legislature amended section 154.073 of the Civil Practice and Remedies Code by adding
subsection (d), which provides that a final written agreement to which a governmental body subject to the Act is a
signatory and that was reached as a result of a dispute resolution procedure conducted under chapter 154 of that code
is subject to or excepted from required disclosure in accordance with the Act. Act of May 30, 1999, 76th Leg., R.S.,
ch. 1352, 6, 1999 Tex. Gen. Laws 4578, 4582; see Govt Code 552.022(a)(18) (settlement agreement to which
governmental body is party may not be withheld unless it is confidential under the Act or other law).

72
Appendix 23
examination of a carrier; section 9 of article 1.15 does not apply to examination reports and work
papers of carriers under liquidation or receivership.
b. Federal Statutes
Section 552.101 also incorporates the confidentiality provisions of federal statutes and regulations.
In Open Records Decision No. 641 (1996), the attorney general ruled that information collected
under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., from an applicant or
employee concerning that individuals medical condition and medical history is confidential under
section 552.101 of the Government Code, in conjunction with provisions of the Americans with
Disabilities Act. This type of information must be collected and maintained separately from other
information and may be released only as provided by the Americans with Disabilities Act.
In Open Records Decision No. 681 (2004), the attorney general addressed whether the Health
Insurance Portability and Accountability Act of 1996 (HIPAA) and the related Privacy Rule328
adopted by the United States Department of Health and Human Services make information
confidential for the purpose of section 552.101. The attorney general determined that when a
governmental body that is a covered entity329 subject to the Privacy Rule, receives a request for
protected health information330 from a member of the public, it must evaluate the disclosure under
the Act rather than the Privacy Rule. The decision also determined that the Privacy Rule does not
make information confidential for purposes of section 552.101 of the Government Code. In Abbott
v. Tex. Dept of Mental Health & Mental Retardation, the Third Court of Appeals agreed with the
attorney generals analysis of the interplay of the Act and the Privacy Rule.331
As a general rule, the mere fact that a governmental body in Texas holds certain information that is
confidential under the federal Freedom of Information Act or the federal Privacy Act will not bring
the information within the section 552.101 exception, as those acts govern disclosure only of
information that federal agencies hold.332 However, if an agency of the federal government shares
its information with a Texas governmental entity, the Texas entity must withhold the information
that the federal agency determined to be confidential under federal law.333
328
The United States Department of Health and Human Services promulgated the Privacy Rule under HIPAA to
implement HIPAAs privacy requirements for setting national privacy standards for health information. See 42
U.S.C. 1320d-2; 45 C.F.R. pts. 160, 164.
329
The Privacy Rule only applies to a covered entity, that is, one of the following three entities defined in the Privacy
Rule: (1) a health plan; (2) a health care clearinghouse; and (3) a health care provider who transmits any health
information in electronic form in connection with certain transactions covered by subchapter C, subtitle A of title
45 of the Code of Federal Regulations. See 42 U.S.C. 1320d-1(a); 45 C.F.R. 160.103.
330
See 45 C.F.R. 160.103 (defining protected health information); Open Records Decision No. 681 at 57 (2004)
(determination of whether requested information is protected health information subject to Privacy Rule requires
consideration of definitions of three terms in rule).
331
Abbott v. Tex. Dept of Mental Health & Mental Retardation, 212 S.W .3d 648 (Tex. App. Austin 2006, no pet.).
332
Attorney General Opinion MW -95 at 2 (1979); Open Records Decision No. 124 at 1 (1976).
333
See Open Records Decision No. 561 at 67 (1990); accord United States v. Napper, 887 F.2d 1528, 1530 (11th Cir.
1989) (documents that Federal Bureau of Investigation lent to city police department remained property of Bureau
and were subject to any restrictions on dissemination of Bureau-placed documents).

73
Appendix 23
2. Information Confidential by Judicial Decision

a. Information Confidential Under Common Law or Constitutional Privacy Doctrine
i. Common-Law Privacy
(a) Generally
Section 552.101 also excepts from required public disclosure information held confidential under
case law. Pursuant to the Texas Supreme Court decision in Indus. Found. v. Tex. Indus. Accident
Bd.,334 section 552.101 applies to information when its disclosure would constitute the common-law
tort of invasion of privacy through the disclosure of private facts. To be within this common-law
tort, the information must (1) contain highly intimate or embarrassing facts about a persons private
affairs such that its release would be highly objectionable to a reasonable person and (2) be of no
legitimate concern to the public.335 Because much of the information that a governmental body holds
is of legitimate concern to the public, the doctrine of common-law privacy frequently will not
exempt information that might be considered private. For example, information about public
employees conduct on the job is generally not protected from disclosure.336 The attorney general
has found that the doctrine of common-law privacy does not protect the specific information at issue
in the following decisions:
Open Records Decision No. 625 (1994) a companys address and telephone number;
Open Records Decision No. 620 (1993) a corporations financial information;
Open Records Decision No. 616 (1993) a mug shot, unrelated to any active criminal
investigation, taken in connection with an arrest for which an arrestee subsequently was
convicted and is serving time;
Open Records Decision No. 611 (1992) records held by law enforcement agencies regarding
violence between family members unless the information is highly intimate and embarrassing
and of no legitimate public interest;
Open Records Decision No. 594 (1991) certain information regarding a citys drug testing
program for employees; and
Open Records Decision No. 441 (1986) job-related examination scores of public employees
or applicants for public employment.
334
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
335
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977);
see Open Records Decision No. 659 (1999).
336

74
Appendix 23
The attorney general has concluded that, with the exception of victims of sexual assault,337
section 552.101 does not categorically except from required public disclosure, on common-law
privacy grounds, the names of crime victims.338
In addition to the seminal Public Information Act privacy case of Industrial Foundation, courts in
other cases have considered the common-law right to privacy in the context of section 552.101 of
the Act. In two cases involving the Fort Worth Star-Telegram newspaper, the Texas Supreme Court
weighed an individuals right to privacy against the right of the press to publish certain embarrassing
information concerning an individual. In Star-Telegram, Inc. v. Doe,339 a rape victim sued the
newspaper, which had published articles disclosing the age of the victim, the relative location of her
residence, the fact that she owned a home security system, that she took medication, that she owned
a 1984 black Jaguar automobile, and that she owned a travel agency. The newspaper did not reveal
her actual identity. The court held that the newspaper in this case could not be held liable for
invasion of privacy for public disclosure of embarrassing private facts because, although the
information disclosed by the articles made the victim identifiable by her acquaintances, it could not
be said that the articles disclosed facts which were not of legitimate public concern.
In Star-Telegram, Inc. v. Walker,340 the court addressed another case involving the identity of a rape
victim. In this case, the victims true identity could be gleaned from the criminal court records and
testimony. The court found that because trial proceedings are public information, the order entered
by the criminal court closing the files and expunging the victims true identity from the criminal
records (more than three months following the criminal trial) could not retroactively abrogate the
presss right to publish public information properly obtained from open records. Once information
is in the public domain, the court stated, the law cannot recall the information. Therefore, the court
found that the newspaper could not be held liable for invasion of privacy for publication of
information appearing in public court documents.
In Morales v. Ellen,341 the court of appeals considered whether the statements and names of
witnesses to and victims of sexual harassment in an employment context were public information
under the Act. In Open Records Decision No. 579 (1990), the attorney general had concluded that
an investigative file concerning a sexual harassment complaint was not protected by common-law
privacy. The decision in Ellen modified that interpretation. The Ellen court found that the names
of witnesses and their detailed affidavits were highly intimate or embarrassing. Furthermore, the
court found that, because information pertinent to the sexual harassment charges and investigation
already had been released to the public in summary form, the legitimate public interest in the matter
337
338
Open Records Decision No. 409 at 2 (1984); see also Open Records Decision Nos. 628 (1994) (identities of juvenile
victims of crime are not per se protected from disclosure by common-law privacy), 611 (1992) (determining whether
records held by law-enforcement agency regarding violence between family members are confidential under doctrine
of common-law privacy must be done on case-by-case basis). But see Govt Code 552.132 (excepting
information about certain crime victims), .1325 (excepting information held by governmental body or files with
court contained in victim impact statement or submitted for purpose of preparing such statement).
339
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).
340
Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992).
341
Morales v. Ellen, 840 S.W.2d 519, 52425 (Tex. App. El Paso 1992, writ denied).

75
Appendix 23
had been satisfied. Therefore, the court determined that, in this instance, the public did not possess
a legitimate interest in the names of witnesses to or victims of the sexual harassment, in their
statements, or in any other information that would tend to identify them. The Ellen court did not
protect from public disclosure the identity of the alleged perpetrator of the sexual harassment.
(b) Financial Information
Governmental bodies frequently claim that financial information pertaining to an individual is
protected under the doctrine of common-law privacy as incorporated into section 552.101.
Resolution of these claims hinges upon the role the information plays in the relationship between
the individual and the governmental body.
Information regarding a financial transaction between an individual and a governmental body is a
matter of legitimate public interest; thus, the doctrine of common-law privacy does not generally
protect from required public disclosure information regarding such a transaction.342 An example of
a financial transaction between a person and a governmental body is a public employees
participation in an insurance program funded wholly or partially by his or her employer.343 In
contrast, a public employees participation in a voluntary investment program or deferred
compensation plan that the employer offers but does not fund is not considered a financial
transaction between the individual and the governmental body; information regarding such
participation is considered intimate and of no legitimate public interest.344 Consequently, the
doctrine of common-law privacy generally excepts such financial information from required public
disclosure.
The doctrine of common-law privacy does not except from disclosure the basic facts concerning a
financial transaction between an individual and a governmental body.345 On the other hand,
common-law privacy generally protects the background financial information of the individual,
that is, information about the individuals overall financial status and past financial history.346
However, certain circumstances may justify the public disclosure of background financial
information; therefore, a determination of the availability of background financial information under
the Act must be made on a case-by-case basis.347
342
343
344
345
See, e.g., Open Records Decision Nos. 523 at 34 (1989), 385 at 2 (1983) (hospitals accounts receivable showing
patients names and amounts they owed were subject to public disclosure).
346
See Open Records Decision Nos. 523 at 34 (1989) (credit reports and financial statements of individual veterans
participating in Veterans Land Program are protected from disclosure as background financial information), 373
at 3 (1983) (sources of income, salary, mortgage payments, assets, and credit history of applicant for housing
rehabilitation grant are protected by common-law privacy). But see Open Records Decision No. 620 at 4 (1993)
(background financial information regarding corporation is not protected by privacy).
347

76
Appendix 23
ii. Constitutional Privacy

Section 552.101 also incorporates constitutional privacy.348 The United States Constitution protects
two kinds of individual privacy interests: (1) an individuals interest in independently making
certain important personal decisions about matters that the United States Supreme Court has stated
are within the zones of privacy, as described in Roe v. Wade349 and Paul v. Davis350 and (2) an
individuals interest in avoiding the disclosure of personal matters to the public or to the
government.351 The zones of privacy implicated in the individuals interest in independently
making certain kinds of decisions include matters related to marriage, procreation, contraception,
family relationships, and child rearing and education.352
The second individual privacy interest that implicates constitutional privacy involves matters outside
the zones of privacy. To determine whether the constitutional right of privacy protects particular
information, the release of which implicates a persons interest in avoiding the disclosure of personal
matters, the attorney general applies a balancing test that weighs the individuals interest in privacy
against the publics right to know the information. Although such a test might appear more
protective of privacy interests than the common-law test, the scope of information considered private
under the constitutional doctrine is far narrower than that under the common law; the material must
concern the most intimate aspects of human affairs.353
iii. Privacy Rights Lapse upon Death of the Subject
Common-law and constitutional privacy rights lapse upon the death of the subject.354 Consequently,
common-law and constitutional privacy can be asserted on behalf of family members of a deceased
individual only on the basis of their own privacy interests, not on the basis of the deceased
individuals privacy.355 If a governmental body believes that the release of information will implicate
the privacy interests of the family members of a deceased individual, the governmental body should
notify the deceaseds family of their right to submit comments to the attorney general explaining how
348
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 678 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
349
Roe v. Wade, 410 U.S. 113, 152 (1973).
350
Paul v. Davis, 424 U.S. 693, 71213 (1976).
351
Open Records Decision No. 600 at 45 (1992); see also Whalen v. Roe, 429 U.S. 589, 599600 (1977).
352
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 678, 679 (Tex. 1976), cert. denied, 430 U.S. 931
(1977).
353
See Open Records Decision No. 455 at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th
Cir. 1985)).
354
Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W .2d 489, 491 (Tex. Civ. App. Texarkana 1979, writ refd
n.r.e.); Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 14647 (N.D. Tex. 1979) (action for invasion of
privacy can be maintained only by a living individual whose privacy is invaded) (quoting Restatement of Torts 2d);
Attorney General Opinion H-917 at 34 (1976); Open Records Decision No. 272 at 1 (1981); see United States v.
Amalgamated Life Ins. Co., 534 F. Supp. 676, 679 (S.D.N.Y. 1982) (constitutional right to privacy terminates upon
death and does not descend to heirs of deceased).
355
Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W .2d 489, 491 (Tex. Civ. App. Texarkana 1979, writ refd
n.r.e.); see also Natl Archives & Records Admin. v. Favish, 541 U.S. 157 (2004); Justice v. Belo Broadcasting
Corp., 472 F. Supp. 145, 14647 (N.D. Tex. 1979); United States v. Amalgamated Life Ins. Co., 534 F. Supp. 676,
679 (S.D.N.Y. 1982).

77
Appendix 23
release will affect their privacy interests.356 In this regard, governmental bodies should also be aware
of the requirements of the recently enacted section 552.1085 of the Government Code, which
pertains to the confidentiality and release of sensitive crime scene images from closed criminal cases,
as discussed more fully in Part Two, Section II, Subsection I of this Handbook.357 Whether
confidentiality imposed by statutes outside the Public Information Act lapses depends upon the
particular statute concerned.358
iv. False-Light Privacy
The Texas Supreme Court has held false-light privacy is not an actionable tort in Texas.359 In
addition, in Open Records Decision No. 579 (1990), the attorney general determined the statutory
predecessor to section 552.101 did not incorporate the common-law tort of false-light privacy,
overruling prior decisions to the contrary.360 Thus, the truth or falsity of information is not relevant
under the Public Information Act.
v. Special Circumstances
Through formal decisions, the attorney general developed the special circumstances test under
common-law privacy to withhold certain information from disclosure.361 Special circumstances
refers to a very narrow set of situations in which the release of information would likely cause
someone to face an imminent threat of physical danger.362 Such special circumstances do not
include a generalized and speculative fear of harassment or retribution.363 In Tex. Dept of Pub.
Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., the Third Court of Appeals
concluded it could not adopt the special circumstances analysis because it directly conflicts with the
two-part test articulated in Industrial Foundation, which is the sole criteria for determining whether
information is private under the common law.364 The Texas Supreme Court, however, reversed the
court of appeals opinion.365 The supreme court concluded freedom from physical harm is an
independent interest protected under law, untethered to the right of privacy. Thus, the supreme court
for the first time announced a common-law right of physical safety exception under the Act. The
supreme court adopted the standard enunciated in section 552.152 requiring the withholding of
356
See Govt Code 552.304 (any interested person may submit comments explaining why records should or should
not be released).
357
See Act of May 27, 2013, 83rd Leg., R.S., S.B. 1512, 1 (to be codified at Govt Code 552.1085)
358
See Attorney General Opinions DM-61 at 3 (1991), JM-851 at 2 (1988).
359
Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994).
360
361
Open Records Decision Nos. 169 (1977), 123 (1976).
362
363
364
Tex. Dept of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., 287 S.W .3d 390, 394-95
(Tex. App. Austin 2009), revd, 343 S.W.3d 112 (Tex. 2011).
365
Tex. Dept of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011).

78
Appendix 23
information if disclosure would create a substantial threat of physical harm.366 As articulated by

the court, the new common-law exception requires more than vague assertions of potential harm.
b. Informers Privilege
As interpreted by the attorney general, section 552.101 of the Government Code incorporates the
informers privilege. In Roviaro v. United States,367 the United States Supreme Court explained
the rationale underlying the informers privilege:
What is usually referred to as the informers privilege is in reality the Governments privilege
to withhold from disclosure the identity of persons who furnish information of violations of
law to officers charged with enforcement of that law. The purpose of the privilege is the
furtherance and protection of the public interest in effective law enforcement. The privilege
recognizes the obligation of citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their anonymity, encourages them to
perform that obligation.368
In accordance with this policy, the attorney general has construed the informers privilege aspect of
section 552.101 as protecting the identity only of a person who (1) reports a violation or possible
violation of the law (2) to officials charged with the duty of enforcing the particular law. The
informers privilege facet of section 552.101 does not protect information about lawful conduct.369
The privilege protects information reported to administrative agency officials having a duty to
enforce statutes with civil or criminal penalties, as well as to law enforcement officers.370
The informers privilege protects not only the informers identity, but also any portion of the
informers statement that might tend to reveal the informers identity.371 Of course, protecting an
informers identity and any identifying information under the informers privilege serves no purpose
if the accused already knows the informers identity. The attorney general has held that the
informers privilege does not apply in such a situation.372
The informers privilege facet of section 552.101 of the Government Code serves to protect the flow
of information to a governmental body; it does not serve to protect a third person.373 Thus, because
it exists to protect the governmental bodys interest, this privilege, unlike other section 552.101
claims, may be waived by the governmental body.374
366
See Govt Code 552.152 (information in custody of governmental body that relates to employee or officer of
governmental body is excepted from disclosure if, under circumstances pertaining to employee or officer, disclosure
would subject employee or officer to substantial threat of physical harm).
367
Roviaro v. United States, 353 U.S. 53 (1957).
368
Roviaro v. United States, 353 U.S. 53, 59 (1957) (emphasis added) (citations omitted).
369
370
371
372
373
374

79
Appendix 23
B. Section 552.102: Confidentiality of Certain Personnel Information

(a)
Information is excepted from [required public disclosure] if it is information in a

personnel file, the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy, except that all information in the personnel file of an
employee of a governmental body is to be made available to that employee or the
employees designated representative as public information is made available under
this chapter. The exception to public disclosure created by this subsection is in
addition to any exception created by Section 552.024. Public access to personnel
information covered by Section 552.024 is denied to the extent provided by that
section.
(b)
Information is excepted from [required public disclosure] if it is a transcript from an

institution of higher education maintained in the personnel file of a professional
public school employee, except that this section does not exempt from disclosure the
degree obtained or the curriculum on a transcript in the personnel file of the
employee.
1. Dates of Birth of Public Employees

In 1983, the Third Court of Appeals in Hubert v. Harte-Hanks Tex. Newspapers, Inc.375 ruled the test
to be applied under section 552.102 is the same as the test formulated by the Texas Supreme Court
in Industrial Foundation for applying the doctrine of common-law privacy as incorporated by
section 552.101. However, the Texas Supreme Court recently held section 552.102(a) excepts from
disclosure only the dates of birth of state employees in the payroll database of the Texas Comptroller
of Public Accounts.376 In light of the courts determination, a governmental body should not raise
section 552.102(a) if it seeks to withhold its employees personnel information under common-law
privacy. The appropriate exception a governmental body should raise to protect its employees
personnel information under common-law privacy is section 552.101. Section 552.102(a) only
excepts from disclosure a public employees birth date that is contained in records maintained by the
governmental body in a personnel context. The exception does not protect the dates of birth of
private individuals.377
Section 552.102 applies to former as well as current public employees.378 However, section 552.102
does not apply to applicants for employment.379 In addition, section 552.102 applies only to the
personnel records of public employees, not the records of private employees.
375
Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W .2d 546, 550 (Tex. App. Austin 1983, writ refd n.r.e.).
376
Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W. 3d 336 (Tex. 2010).
377
See, e.g., Open Records Letter Ruling Nos. 2013-00441 (2013), 2012-15925 (2012), 2012-15655 (2012).
378
Attorney General Opinion JM-229 at 2 (1984).
379

80
Appendix 23
2. Transcripts of Professional Public School Employees

Section 552.102 also protects from required public disclosure most information on a transcript from
an institution of higher education maintained in the personnel files of professional public school
employees. Section 552.102(b) does not except from disclosure information on a transcript detailing
the degree obtained and the curriculum pursued.380 Moreover, the attorney general has interpreted
section 552.102(b) to apply only to the transcripts of employees of public schools providing public
education under title 2 of the Education Code, not to employees of colleges and universities
providing higher education under title 3 of the Education Code.381
C. Section 552.103: Litigation or Settlement Negotiations Involving the State

or a Political Subdivision
Section 552.103(a) of the Act, commonly referred to as the litigation exception, excepts from
required public disclosure:
[I]nformation relating to litigation of a civil or criminal nature to which the state or a
political subdivision is or may be a party or to which an officer or employee of the state or
a political subdivision, as a consequence of the persons office or employment, is or may
be a party.
Section 552.103(a) was intended to prevent the use of the Public Information Act as a method of
avoiding the rules of discovery used in litigation.382 This exception enables a governmental body to
protect its position in litigation by forcing parties seeking information relating to that litigation to
obtain it through discovery procedures.383 Section 552.103 is a discretionary exception to disclosure
and does not make information confidential under the Act.384 As such, section 552.103 does not
make information confidential for the purposes of section 552.022. Further, a governmental body
waives section 552.103 by failing to comply with the procedural requirements of section 552.301.385
1. Governmental Bodys Burden
For information to be excepted from public disclosure by section 552.103(a), (1) litigation involving
the governmental body must be pending or reasonably anticipated and (2) the information must relate
380
381
See, e.g., Open Records Letter Nos. 2013-11312 (2013), 2009-18243 (2009), 2008-10363 (2008), 2008-08137
(2008).
382
Thomas v. Cornyn, 71 S.W .3d 473, 487 (Tex. App. Austin 2002, no pet.); Attorney General Opinion JM-1048
at 4 (1989).
383
384
Dallas Area Rapid Transit v. D allas Morning News, 4 S.W .3d 469, 47576 (Tex. App. Dallas 1999, no pet.);
Open Records Decision No. 665 at 2 n.5 (2000).
385

81
Appendix 23
to that litigation.386 Therefore, a governmental body that seeks an attorney general decision has the
burden of clearly establishing both prongs of this test.
For purposes of section 552.103(a), a contested case under the Administrative Procedure Act (APA),
Government Code chapter 2001, constitutes litigation.387 Questions remain regarding whether
administrative proceedings not subject to the APA may be considered litigation within the meaning
of section 552.103(a).388 In determining whether an administrative proceeding should be considered
litigation for the purpose of section 552.103, the attorney general will consider the following factors:
(1) whether the dispute is, for all practical purposes, litigated in an administrative proceeding where
(a) discovery takes place, (b) evidence is heard, (c) factual questions are resolved, and (d) a record
is made; and (2) whether the proceeding is an adjudicative forum of first jurisdiction.389
Whether litigation is reasonably anticipated must be determined on a case-by-case basis.390 Section
552.103(a) requires concrete evidence that litigation is realistically contemplated; it must be more
than conjecture.391 The mere chance of litigation is not sufficient to trigger section 552.103(a).392
The fact that a governmental body received a claim letter that it represents to the attorney general
to be in compliance with the notice requirements of the Texas Tort Claims Act, Civil Practice and
Remedies Code chapter 101, or applicable municipal ordinance, shows that litigation is reasonably
anticipated.393 If a governmental body does not make this representation, the claim letter is a factor
the attorney general will consider in determining from the totality of the circumstances presented
whether the governmental body has established that litigation is reasonably anticipated.
In previous open records decisions, the attorney general had concluded that a governmental body
could claim the litigation exception only if it established that withholding the information was
necessary to protect the governmental bodys strategy or position in litigation.394 However, Open
Records Decision No. 551 (1990) significantly revised this test and concluded that the governmental
body need only establish the relatedness of the information to the subject matter of the pending or
anticipated litigation.395 Therefore, to meet its burden under section 552.103(a) in requesting an
attorney general decision under the Act, the governmental body must identify the issues in the
litigation and explain how the information relates to those issues.396 When the litigation is actually
pending, the governmental body should also provide the attorney general a copy of the relevant
pleadings.
386
Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W .2d 479, 481 (Tex. App. Austin 1997, orig. proceeding);
Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App. Houston [1st Dist.] 1984, writ refd n.r.e.).
387
Open Records Decision No. 588 at 7 (1991) (construing statutory predecessor to APA).
388
389
390
391
Attorney General Opinion JM-266 at 4 (1984); Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 328
at 2 (1982).
392
Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 397 at 2 (1983), 361 at 2 (1983), 359 at 2 (1983).
393
394
395
396

82
Appendix 23
2. Only Circumstances Existing at the Time of the Request

Subsection (c) of section 552.103 provides as follows:
Information relating to litigation involving a governmental body or an officer or employee
of a governmental body is excepted from disclosure under Subsection (a) only if the
litigation is pending or reasonably anticipated on the date that the requestor applies to the
officer for public information for access to or duplication of the information.
Consequently, in determining whether a governmental body has met its burden under section
552.103, the attorney general or a court can only consider the circumstances that existed on the date
the governmental body received the request for information, not information about occurrences after
the date of the request for information.397
3. Temporal Nature of Section 552.103
Generally, when parties to litigation have inspected the records pursuant to court order, discovery,
or through any other means, section 552.103(a) may no longer be invoked.398 In addition, once
litigation is neither reasonably anticipated nor pending, section 552.103(a) is no longer applicable.399
Once a governmental body has disclosed information relating to litigation, the governmental body
is ordinarily precluded from invoking section 552.103(a) to withhold the same information. This
is not the case, however, when a governmental body has disclosed information to a co-defendant in
litigation, where the governmental body believes in good faith that it has a constitutional obligation
to disclose it.400
4. Scope of Section 552.103
Section 552.103 applies to information that relates to pending or reasonably anticipated litigation,
which is a very broad category of information.401 The protection of section 552.103 may overlap
with that of other exceptions that encompass discovery privileges. However, the standard for
proving that section 552.103 applies to information is the same regardless of whether the information
is also subject to a discovery privilege.
For example, information excepted from disclosure under the litigation exception may also be
subject to the work product privilege.402 However, the standard for proving that the litigation
397
398
Open Records Decision No. 597 (1991) (statutory predecessor to Govt Code 552.103 did not except basic
information in offense report that was previously disclosed to defendant in criminal litigation); see Open Records
Decision Nos. 551 at 4 (1990), 511 at 5 (1988), 493 at 2 (1988), 349 (1982), 320 (1982).
399
Open Records Decision Nos. 551 at 4 (1990), 350 (1982); see Thomas v. El Paso County Cmty. Coll. Dist.,
68 S.W.3d 722, 726 (Tex. App. El Paso 2001, no pet.).
400
Open Records Decision No. 454 at 3 (1986); see Cornyn v. City of Garland, 994 S.W .2d 258 (Tex. App. Austin
1999, no pet.); Open Records Decision No. 579 at 9 (1990) (exchange of information in informal discovery is not
voluntary release of information under statutory predecessor to Govt Code 552.021).
401
Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App. Austin 1997, orig. proceeding).
402

83
Appendix 23
exception applies is wholly distinct from the standard for proving that the work product privilege
applies.403 The work product privilege is incorporated into the Act by section 552.111 of the
Government Code, not section 552.103.404 If both section 552.103 and the work product privilege
could apply to requested information, the governmental body has the discretion to choose to assert
either or both of the exceptions.405 However, the governmental body must meet distinct burdens
depending on the exception it is asserting.406 Under section 552.103, the governmental body must
demonstrate that the requested information relates to pending or reasonably anticipated litigation.407
Under the work product privilege, the governmental body must demonstrate that the requested
information was created for trial or in anticipation of civil litigation by or for a party or a partys
representative.408
5. Duration of Section 552.103 for Criminal Litigation
Subsection (b) of section 552.103 provides as follows:
For purposes of this section, the state or a political subdivision is considered to be a party
to litigation of a criminal nature until the applicable statute of limitations has expired or
until the defendant has exhausted all appellate and postconviction remedies in state and
federal court.
The attorney general has determined that section 552.103(b) is not a separate exception to disclosure;
it merely provides a time frame within which the litigation exception excepts information from
disclosure.409
D. Section 552.104: Information Relating to Competition or Bidding

(a)
Information is excepted from the requirements of Section 552.021 if it is information

that, if released, would give advantage to a competitor or bidder.
(b)
The requirement of Section 552.022 that a category of information listed under

Section 552.022(a) is public information and not excepted from required disclosure
under this chapter unless expressly confidential under law does not apply to
information that is excepted from required disclosure under this section.
403
404
405
See Open Records Decision No. 677 at 2 (2002); Open Records Decision No. 647 at 3 (1996).
406
407
See Open Records Decision No. 677 at 2 (2002); Govt Code 552.103; Univ. of Tex. Law Sch. v. Tex. Legal
Found., 958 S.W .2d 479, 481 (Tex. App. Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W .2d 210, 212
(Tex. App. Houston [1st Dist.] 1984, writ refd n.r.e.).
408
409

84
Appendix 23
The purpose of section 552.104(a) is to protect the interests of a governmental body in situations
such as competitive bidding and requests for proposals, where the governmental body may wish to
withhold information in order to obtain more favorable offers.410 Significantly, it is not designed to
protect the interests of private parties that submit information such as bids and proposals to
governmental bodies.411 Because section 552.104(a) protects only the interests of governmental
bodies, it is an exception that a governmental body may waive by, for example, disclosing the
information to the public or failing to raise the exception within the ten day deadline.412
Generally, section 552.104(a) protects information from public disclosure if the governmental body
demonstrates potential harm to its interests in a particular competitive situation.413 A general
allegation of a remote possibility of harm is not sufficient to invoke section 552.104(a).414
Section 552.104(a) typically does not except bids from public disclosure after bidding is completed
and the contract has been awarded.415 However, bids may continue to be withheld from public
disclosure during the period in which the governmental body seeks to clarify bids and bidders remain
at liberty to furnish additional information.416 Additionally, in Open Records Decision No. 541
(1990) the attorney general stated the statutory predecessor to section 552.104 may protect
information after bidding is complete if the governmental body demonstrates public disclosure of
the information will allow competitors to undercut future bids, and the governmental body solicits
bids for the same goods or services on a recurring basis.417 Section 552.104(a) does not apply when
a single individual or entity is seeking a contract as there are no competitors for that contract.418
Note that even when section 552.104(a) does not protect bids from required public disclosure,
section 552.110 will require the governmental body to withhold any portions of those bids that
contain trade secrets or other commercial or financial information that is made confidential by law.419
In addition to the actual bid proposals, section 552.104(a) may protect information related to the
bidding process that is not part of a bid.420
410
411
412
413
414
Open Records Decision Nos. 541 at 4 (1990), 463 (1987).
415
Open Records Decision Nos. 541 at 5 (1990), 514 at 2 (1988), 319 at 3 (1982).
416
417
Open Records Decision No. 541 at 5 (1990) (recognizing limited situation in which statutory predecessor to Govt
Code 552.104 continued to protect information submitted by successful bidder when disclosure would allow
competitors to accurately estimate and undercut future bids); see also Open Records Decision No. 309 (1982)
(suggesting that such principle will apply when governmental body solicits bids for same or similar goods on
recurring basis).
418
419
See, e.g., Open Records Decision Nos. 319 (1982), 309 (1982).
420
Compare Attorney General Opinion MW -591 (1982) (identities of probable bidders are protected from public
disclosure because disclosure could interfere with governmental bodys ability to obtain best bids possible) with
Open Records Decision No. 453 (1986) (identities of individuals who receive bid packets are not protected when
governmental body fails to show substantial likelihood that these individuals would bid).

85
Appendix 23
Although early decisions of the attorney general concluded that section 552.104(a) does not protect
the interests of governmental bodies when they engage in competition with private entities in the
marketplace,421 this line of opinions has been reexamined. In Open Records Decision No. 593
(1991), the attorney general concluded a governmental body may claim section 552.104(a) to
withhold information to maintain its competitive advantage in the marketplace if the governmental
body can demonstrate (1) it has specific marketplace interests and (2) the possibility of specific harm
to these marketplace interests from the release of the requested information.422
A governmental body that demonstrates that section 552.104 applies to information may withhold
that information even if it falls within one of the categories of information listed in section
552.022(a).423
E.
Section 552.105: Information Related to Location or Price of Property
Section 552.105 of the Government Code excepts from required public disclosure information
relating to:
(1)
the location of real or personal property for a public purpose prior to public
announcement of the project; or
(2)
appraisals or purchase price of real or personal property for a public purpose prior
to the formal award of contracts for the property.
This exception protects a governmental bodys planning and negotiating position with respect to
particular real or personal property transactions,424 and its protection is therefore limited in duration.
The protection of section 552.105(1) expires upon the public announcement of the project for which
the property is being acquired, while the protection of section 552.105(2) expires upon the
governmental bodys acquisition of the property in question.425 Because section 552.105(2) extends
to information relating to the appraisals and purchase price of property, it may protect more than
just the purchase price or appraisal of a specific piece of property.426 For example, the attorney
general has held that appraisal information about parcels of land acquired in advance of others to be
acquired for the same project could be withheld where this information would harm the
governmental bodys negotiating position with respect to the remaining parcels.427 Similarly, the
421
See Open Records Decision Nos. 463 (1987), 231 (1979), 153 (1977), 99 (1975).
422
See, e.g., Open Records Letter Nos. 2013-10758 (2013) (University of T exas M edical Branch at Galveston may
withhold research and analytical plan information as it is a marketplace competitor for public and private grant
funding), 2013-10295 (2013) (General Land Office may withhold contracts detailing services and prices charged
to public retail customers for electrical energy services as release would harm its marketplace interests).
423
424
425
Govt Code 552.105; see Open Records Decision No. 222 at 12 (1979).
426
See Heidenheimer v. Tex. Dept of Transp., No. 03-02-00187-CV, 2003 W L 124248, at *2 (Tex. App. Austin Jan.
16, 2003, pet. denied) (mem. op., not designated for publication); Open Records Decision No. 564 (1990)
(construing statutory predecessor to Govt Code 552.105).
427

86
Appendix 23
location of property to be purchased may be withheld under section 552.105(2) if releasing the
location could affect the purchase price of the property. The exception for information pertaining
to purchase price in section 552.105(2) also applies to information pertaining to a lease price.428
When a governmental body has made a good faith determination that the release of information
would damage its negotiating position with respect to the acquisition of property, the attorney
general in issuing a ruling under the Act will accept that determination, unless the records or other
information show the contrary as a matter of law.429
F. Section 552.106: Certain Legislative Documents

(a)
A draft or working paper involved in the preparation of proposed legislation is

excepted from [required public disclosure].
(b)
An internal bill analysis or working paper prepared by the governors office for the
purpose of evaluating proposed legislation is excepted from [required public
disclosure].
Section 552.106(a) protects documents concerning the deliberative processes of a governmental body
relevant to the enactment of legislation.430 The purpose of this exception is to encourage frank
discussion on policy matters between the subordinates or advisors of a legislative body and the
legislative body.431 However, section 552.106(a) does not protect purely factual material.432 If a
draft or working paper contains purely factual material that can be disclosed without revealing
protected judgments or recommendations, such factual material must be disclosed unless another
exception to disclosure applies.433 Section 552.106(a) protects drafts of legislation that reflect policy
judgments, recommendations, and proposals prepared by persons with some official responsibility
to prepare them for the legislative body.434 In addition to documents actually created by the
legislature, the attorney general has construed the term legislation to include certain documents
created by a city or a state agency.435
The following open records decisions have held certain information to be excepted from required
public disclosure under the statutory predecessor to section 552.106(a):
428
429
430
431
432
Open Records Decision Nos. 460 at 2 (1987), 344 at 34 (1982), 197 at 3 (1978), 140 at 4 (1976).
433
434
435
See Open Records Decision Nos. 460 at 23 (1987), 367 (1983), 248 (1980).

87
Appendix 23
Open Records Decision No. 460 (1987) a city managers proposed budget prior to its
presentation to the city council, where the city charter directed the city manager to prepare such
a proposal and the proposal was comprised of recommendations rather than facts;
Open Records Decision No. 367 (1983) recommendations of the executive committee of the
Texas State Board of Public Accountancy for amendments to the Public Accountancy Act; and
Open Records Decision No. 248 (1980) drafts of a municipal ordinance and resolution that
were prepared by a city staff study group for discussion purposes and that reflected policy
judgments, recommendations, and proposals.
The following open records decisions have held information not to be excepted from required public
disclosure under the statutory predecessor to section 552.106(a):
Open Records Decision No. 482 (1987) drafts and working papers incorporated into materials
that are disclosed to the public;
Open Records Decision No. 429 (1985) documents relating to the Texas Turnpike Authoritys
efforts to persuade various cities to enact ordinances, as the agency had no official authority to
do so and acted merely as an interested third party to the legislative process; and
Open Records Decision No. 344 (1982) certain information relating to the State Property Tax
Boards biennial study of taxable property in each school district, for the reason that the nature
of the requested information compiled by the board was factual.
Section 552.106(b) excepts from disclosure [a]n internal bill analysis or working paper prepared
by the governors office for the purpose of evaluating proposed legislation[.]436 The purpose of
section 552.106(b) is also to encourage frank discussion on policy matters; however, this section
applies to information created or used by employees of the governors office for the purpose of
evaluating proposed legislation. Furthermore, like section 552.106(a), section 552.106(b) only
protects policy judgments, advice, opinions, and recommendations involved in the preparation or
evaluation of proposed legislation; it does not except purely factual information from public
disclosure.437
Sections 552.106 and 552.111 were designed to achieve the same goals in different contexts.438 The
purpose of section 552.111 is to protect from public disclosure advice and opinions on policy
matters and to encourage frank and open discussion within the agency in connection with its
decision-making processes.439 Because the policies and objectives of each exception are the same,
436
437
See House Comm. on State Affairs, Public Hearing, 5/6/97, H.B. 3157, 75 th Leg. (1997) (protection given to
legislative documents under Govt Code 552.106(a) is comparable with protection given to governors legislative
documents under Govt Code 552.106(b)).
438
439
Austin v. City of San Antonio, 630 S.W .2d 391, 394 (Tex. App. San Antonio 1982, writ refd n.r.e.); Open Records
Decision No. 222 (1979).

88
Appendix 23
some decisions applying section 552.111 may be helpful in determining how section 552.106 should
be construed.440 Although the provisions protect the same type of information, section 552.106 is
narrower in scope because it applies specifically to the legislative process.441
G. Section 552.107: Certain Legal Matters

Section 552.107 of the Government Code states that information is excepted from required public
disclosure if:
(1)
it is information that the attorney general or an 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; or
(2)
a court by order has prohibited disclosure of the information.
This section has two distinct aspects: subsection (1) protects information within the attorney-client
privilege, and subsection (2) protects information a court has ordered to be kept confidential.
1. Information Within the Attorney-Client Privilege
When seeking to withhold information not subject to section 552.022 of the Government Code based
on the attorney-client privilege, a governmental body should assert section 552.107(1).442 Discovery
privileges under the Texas Rules of Evidence and Texas Rules of Civil Procedure, such as the
attorney-client and attorney work product privileges, do not make information confidential for the
purpose of section 552.101 of the Government Code, and therefore should not be asserted under
section 552.101.443
In Open Records Decision No. 676 (2002), the attorney general interpreted section 552.107 to protect
the same information as protected under Texas Rule of Evidence 503.444 Thus, the standard for
demonstrating the attorney-client privilege under the Act is the same as the standard used in
discovery under rule 503. In meeting this standard, a governmental body bears the burden of
providing the necessary facts to demonstrate the elements of the attorney-client privilege.445
First, the governmental body must demonstrate that the information constitutes or documents a
communication.446 Second, the communication must have been made for the purpose of facilitating
440
Open Records Decision No. 482 at 9 (1987). But see Open Records Decision No. 615 at 5 (1993) (agencys
policymaking functions protected by statutory predecessor to section 552.111 do not encompass routine internal
administrative and personnel matters).
441
442
443
444
445
446

89
Appendix 23
the rendition of professional legal services to the client governmental body.447 Third, the
governmental body must demonstrate that the communication was between or among clients, client
representatives, lawyers, and lawyer representatives.448 Fourth, the governmental body must show
that the communication was confidential; that is, the communication was not intended to be
disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for the transmission of the
communication.449 Finally, because the client can waive the attorney-client privilege at any time,
the governmental body must demonstrate that the communication has remained confidential.450
The privilege will not apply if the attorney or the attorneys representative was acting in a capacity
other than that of providing or facilitating professional legal services to the client.451 In
Harlandale Indep. Sch. District v. Cornyn,452 the Third Court of Appeals addressed whether an
attorney was working in her capacity as an attorney when she conducted a factual investigation, thus
rendering factual information from the attorneys report excepted from public disclosure under
section 552.107(1) of the Government Code. There, the Harlandale Independent School District
hired an attorney to conduct an investigation into an alleged assault and render a legal analysis of the
situation upon completion of the investigation.453 The attorney produced a report that included a
summary of the factual investigation as well as legal opinions.454 While the court of appeals held
the attorney-client privilege does not apply to communications between an attorney and a client
when the attorney is employed in a non-legal capacity, for instance as an accountant, escrow
agency, negotiator, or notary public, the court also held the attorney in that case was acting in a
legal capacity in gathering the facts because the ultimate purpose of her investigation was the
rendition of legal advice.455 Thus, when an attorney is hired to conduct an investigation in his or her
capacity as an attorney, a report produced by an attorney containing both factual information and
legal advice is excepted from disclosure in its entirety under section 552.107(1).
If a governmental body demonstrates that any portion of a communication is protected under the
attorney-client privilege, then the entire communication will be generally excepted from disclosure
under section 552.107.456 However, section 552.107 does not apply to a non-privileged
447
Open Records Decision No. 676 at 7 (2002); T EX . R. E VID . 503(b)(1).
448
T EX . R. E VID . 503(b)(1)(A)(E); Open Records Decision No. 676 at 810 (2002).
449
T EX . R. E VID . 503(a)(5); Open Records Decision No. 676 at 10 (2002); see Osborne v. Johnson, 954 S.W .2d 180,
184 (Tex. App. W aco 1997, orig. proceeding) (whether communication was confidential depends on intent of
parties involved at time information was communicated).
450
451
Open Records Decision No. 676 at 7 (2002); see also In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex.
App. Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity
other than that of attorney).
452
Harlandale Indep. Sch. District v. Cornyn, 25 S.W.3d 328 (Tex. App. Austin 2000, pet. denied).
453
Harlandale Indep. Sch. District v. Cornyn, 25 S.W.3d 328, 330 (Tex. App. Austin 2000, pet. denied).
454
455
456
See Huie v. DeShazo, 922 S.W .2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts
contained therein); In re Valero Energy Corp., 973 S.W .2d 453, 457 (Tex. App. Houston [14th Dist.] 1998, orig.
proceeding) (privilege attaches to complete communication, including factual information).

90
Appendix 23
communication within a privileged communication, if the non-privileged communication is

maintained by the governmental body separate and apart from the otherwise privileged
communication. For example, if an e-mail string includes an e-mail or attachment that was received
from or sent to a non-privileged party, and the e-mail or attachment that was received from or sent
to the non-privileged party is separately responsive to the request for information when it is removed
from the e-mail string and stands alone, the governmental body may not withhold the non-privileged
e-mail or attachment under section 552.107.457
The scope of the attorney-client privilege and the work product privilege, which is encompassed by
section 552.111 of the Government Code, are often confused. The attorney-client privilege covers
certain communications made in furtherance of the rendition of professional legal services, while
the work product privilege covers work prepared for the clients lawsuit.458 For materials to be
covered by the attorney-client privilege, they need not be prepared for litigation.
a. Attorney Fee Bills
Attorney fee bills are subject to section 552.022(a)(16) and thus may not be withheld under
section 552.107. Nonetheless, information contained in attorney fee bills may be withheld if it is
protected under the attorney-client privilege as defined in rule 503 of the Texas Rules of Evidence,
or is made confidential under the Act or other law for the purpose of section 552.022.459 Because
the express language of section 552.022(a)(16) provides information that is in a bill for attorneys
fees is not excepted from disclosure unless it is confidential under the Act or other law, the entirety
of an attorney fee bill cannot be withheld on the basis that it contains or is an attorney-client
communication.460
b. Information a Private Attorney Holds for the Governmental Body
If a governmental body engages a private attorney to perform legal services, information in the
attorneys possession relating to the legal services is subject to the Public Information Act.461
457
See, e.g., Open Records Letter Nos. 2013-12509 (2013), 2013-12111 (2013).
458
See Natl Tank Co. v. Brotherton, 851 S.W .2d 193, 200 (Tex. 1993); Owens-Corning Fiberglas Corp. v. Caldwell,
818 S.W.2d 749, 750 (Tex. 1991).
459
See In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001); Open Records Decision No. 676 at 56 (2002).
460
Govt Code 552.022(a)(16) (emphasis added); see also Open Records Decision Nos. 676 at 5 (2002) (attorney fee
bill cannot be withheld in entirety on basis it contains or is attorney-client communication pursuant to language in
section 552.022(a)(16)), 589 (1991) (information in attorney fee bill excepted only to extent information reveals
client confidences or attorneys legal advice).
461
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1368, 1 (to be codified at Govt Code 552.002(a)(2), (a-1))
(definition of public information includes information pertaining to official business of governmental body that was
created by, transmitted to, received by, or is maintained by person or entity performing official business on behalf
of governmental body); Open Records Decision Nos. 663 at 78 (1999), 499 at 5 (1988), 462 at 7 (1987).

91
Appendix 23
c. Waiver of the Attorney-Client Privilege

Texas Rule of Evidence 511 provides that, except where a disclosure is itself privileged, the
attorney-client privilege is waived if a holder of the privilege voluntarily discloses or consents to
disclosure of any significant part of the matter.462
2. Information Protected by Court Order
Section 552.107(2) excepts from disclosure information a court has ordered a governmental body
to keep confidential. Prior to the amendment of section 552.022 in 1999, governmental bodies often
relied on section 552.107(2) to withhold from disclosure the terms of a settlement agreement if a
court had issued an order expressly prohibiting the parties to the settlement agreement or their
attorneys from disclosing the terms of the agreement.463 Under the current version of section
552.022, however, a state court may not order a governmental body or an officer for public
information to withhold from public disclosure any category of information listed in section 552.022
unless the information is confidential under this chapter or other law.464 A settlement agreement to
which a governmental body is a party is one category of information listed in section 552.022.465
With the exception of information subject to section 552.022, section 552.107(2) excepts from
disclosure information that is subject to a protective order during the pendency of the litigation.466
As with any other exception to disclosure, a governmental body must request a ruling from the
attorney general if it wishes to withhold information under section 552.107(2) and should submit a
copy of the protective order for the attorney generals review. A governmental body may not use a
protective order as grounds for the exception once the court has dismissed the suit from which it
arose.467
H. Section 552.108:
Certain Law Enforcement, Corrections, and
Prosecutorial Information
Section 552.108 of the Government Code, sometimes referred to as the law enforcement
exception, provides as follows:
(a)
Information held by a law enforcement agency or prosecutor that deals with the
detection, investigation, or prosecution of crime is excepted from the requirements
of Section 552.021 if:
462
T EX . R. E VID . 511(1); see also Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W .2d 644, 649
(Tex. 1985) (if matter for which privilege is sought has been disclosed to third party, thus raising question of waiver
of privilege, party asserting privilege has burden of proving no waiver has occurred).
463
464
465
Govt Code 552.022(a)(18).
466
467

92
Appendix 23
(1) release of the information would interfere with the detection, investigation, or
prosecution of crime;
(2) it is information that deals with the detection, investigation, or prosecution of
crime only in relation to an investigation that did not result in conviction or
deferred adjudication;
(3) it is information relating to a threat against a peace officer or detention officer
collected or disseminated under Section 411.048; or
(4) it is information that:
(A) is prepared by an attorney representing the state in anticipation of or in the
course of preparing for criminal litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney
representing the state.
(b)
An internal record or notation of a law enforcement agency or prosecutor that is

maintained for internal use in matters relating to law enforcement or prosecution is
excepted from the requirements of Section 552.021 if:
(1) release of the internal record or notation would interfere with law enforcement
or prosecution;
(2) the internal record or notation relates to law enforcement only in relation to an
investigation that did not result in conviction or deferred adjudication; or
(3) the internal record or notation:
(A) is prepared by an attorney representing the state in anticipation of or in the
course of preparing for criminal litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney
representing the state.
(c)
This section does not except from the requirements of Section 552.021 information
that is basic information about an arrested person, an arrest, or a crime.
1. The Meaning of Law Enforcement Agency and the Applicability of Section 552.108 to
Other Units of Government
Section 552.108 generally applies to the records created by an agency, or a portion of an agency,
whose primary function is to investigate crimes and enforce the criminal laws.468 It generally does
468

93
Appendix 23
not apply to the records created by an agency whose chief function is essentially regulatory in
nature.469 For example, an agency that employs peace officers to investigate crime and enforce
criminal laws may claim that section 552.108 excepts portions of its records from required public
disclosure. On the other hand, an agency involved primarily in licensing certain professionals or
regulating a particular industry generally may not use section 552.108 to except its records from
disclosure.470 An agency that investigates both civil and criminal violations of law but lacks criminal
enforcement authority is not a law enforcement agency for purposes of section 552.108.471
Entities that have been found to be law enforcement agencies for purposes of section 552.108
include: the Texas Department of Criminal Justice (formerly the Texas Department of
Corrections);472 the Texas National Guard;473 the Attorney Generals Organized Crime Task Force;474
a fire departments arson investigation division;475 the El Paso Special Commission on Crime;476 the
Texas Lottery Commission;477 the Texas Alcoholic Beverage Commissions Enforcement
Division;478 and the Texas Comptroller of Public Accounts for purposes of enforcing the Tax
Code.479
The following entities are not law enforcement agencies for purposes of section 552.108: the Texas
Department of Agriculture;480 the Texas Board of Private Investigators and Private Security
Agencies;481 the Texas Board of Pharmacy;482 and the Texas Real Estate Commission.483
469
470
See Open Records Decision No. 199 (1978). But see Attorney General Opinion MW -575 at 12 (1982) (former
Govt Code 552.108 may apply to information gathered by administrative agency when its release would unduly
interfere with law enforcement); Open Records Decision No. 493 at 2 (1988).
471
Open Records Letter No. 99-1907 (1999) (Medicaid Program Integrity Division of Health and Human Services
Commission investigates both civil and criminal violations of M edicaid fraud laws and refers criminal violations
to attorney general for criminal enforcement).
472
Attorney General Opinion MW -381 at 3 (1981); Open Records Decision No. 413 at 1 (1984).
473
474
475
476
477
See Govt Code 466.019(b) (Lottery Commission is authorized to enforce violations of lottery laws and rules),
.020(a)-(b) (Lottery Commission is authorized to maintain department of security staffed by commissioned peace
officers or investigators).
478
See Alco. Bev. Code 5.14 (Texas Alcoholic Beverage Commission may commission inspectors with police
powers to enforce Alcoholic Beverage Code), .31 (powers and duties of commission), .36 (commission shall
investigate violations of Alcoholic Beverage Code and other laws relating to alcoholic beverages), .361 (commission
shall develop risk-based approach to enforcement).
479
A & T Consultants, Inc. v. Sharp, 904 S.W .2d 668, 679 (Tex. 1995) (section 552.108 excepts records generated by
comptroller in process of enforcing tax laws).
480
Attorney General Opinion MW -575 at 1 (1982).
481
482
483

94
Appendix 23
An agency that does not qualify as a law enforcement agency may, under limited circumstances,
claim that section 552.108 excepts records in its possession from required public disclosure. For
example, records that otherwise qualify for the section 552.108 exception, such as documentary
evidence in a police file on a pending case, do not necessarily lose that status while in the custody
of an agency not directly involved with law enforcement.484 Where a non-law enforcement agency
has in its custody information that would otherwise qualify for exception under section 552.108 as
information relating to the pending case of a law enforcement agency, the custodian of the records
may withhold the information if it provides the attorney general with a demonstration that the
information relates to the pending case and a representation from the law enforcement entity that it
wishes to withhold the information.485
Similarly, in construing the statutory predecessor to section 552.108, the attorney general concluded
that if an investigation by an administrative agency reveals possible criminal conduct the agency
intends to report to the appropriate law enforcement agency, then section 552.108 will apply to the
information gathered by the administrative agency if the information relates to an open investigation
or if the release would interfere with law enforcement.486
2. Application of Section 552.108
Section 552.108 excepts from required public disclosure four categories of information:
1)
information the release of which would interfere with law enforcement or prosecution;
2)
information relating to an investigation that did not result in a conviction or deferred

adjudication;
3)
information relating to a threat against a peace officer or detention officer collected or

disseminated under section 411.048; and
4)
information that is prepared by a prosecutor or that reflects the prosecutors mental

impressions or legal reasoning.
a. Interference with Detection, Investigation, or Prosecution of Crime

In order to establish the applicability of section 552.108(a)(1) and 552.108(b)(1) to a requested
criminal file, a law enforcement agency should inform the attorney general how and why release of
the information would interfere with law enforcement.487 The law enforcement agency must inform
the attorney general of the status of the case the information concerns. Information relating to a
pending criminal investigation or prosecution is one example of information that is excepted under
484
485
Open Records Decision No. 474 at 45 (1987); see, e.g., Open Records Letter No. 2004-1811 (2004).
486
See Attorney General Opinion M W -575 at 12 (1982) (construing statutory predecessor); Open Records Decision
No. 493 at 2 (1988) (same).
487
See Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977).

95
Appendix 23
sections 552.108(a)(1) and 552.108(b)(1) because release of such information would presumptively
interfere with the detection, investigation, or prosecution of crime.488
All of the formal open records decisions interpreting the law enforcement exception considered the
predecessor statute rather than 552.108 as it now reads. In these decisions, the attorney general
permitted law enforcement agencies to withhold information in a closed criminal case only if its
release would unduly interfere with law enforcement or crime prevention.489 The following is a
discussion of the undue interference standard under the predecessor statute. The reader may find
this information useful in determining the types of information to provide to the attorney general
when seeking to withhold information under the current provisions interference standard.
i. Information Relating to the Detection, Investigation, or Prosecution of Crime
To withhold information under former section 552.108, a governmental body had to demonstrate
how release of the information would unduly interfere with law enforcement or prosecution.490
For example, the names and statements of witnesses could be withheld if the law enforcement
agency demonstrated that disclosure might either (1) subject the witnesses to possible intimidation
or harassment or (2) harm the prospects of future cooperation by the witnesses.491 However, to
prevail on its claim that section 552.108 excepted the information from disclosure, a law
enforcement agency had to do more than merely make a conclusory assertion that releasing the
information would unduly interfere with law enforcement. Whether the release of particular records
would unduly interfere with law enforcement was determined on a case-by-case basis.492
(a) Records Regarding Family Violence
Former section 552.108 did not, as a matter of law, except from required public disclosure records
held by law enforcement agencies regarding violence between adult members of a family. As with
any other case, except for basic information, former section 552.108 permitted a law enforcement
agency to withhold all information related to a case of family violence when its release would unduly
interfere with law enforcement. However, the fact that a case involved an assault by one adult family
member on another did not, by itself, demonstrate that releasing information about that case would
unduly interfere with law enforcement.493
488
See Houston Chronicle Publg Co. v. City of Houston, 531 S.W .2d 177, 18485 (Tex. Civ. App. Houston [14th
Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ refd n.r.e. per curiam,
536 S.W.2d 559 (Tex. 1976).
489
See Open Records Decision Nos. 628 at 2 (1994), 313 at 2 (1982), 297 at 2 (1981).
490
Open Records Decision Nos. 616 at 1 (1993), 434 at 23 (1986); see Ex parte Pruitt, 551 S.W .2d 706, 710
(Tex. 1977).
491
492
493

96
Appendix 23
(b) Mug Shots

A mug shot taken in connection with an arrest when the arrestee was subsequently convicted of the
offense for which he or she was arrested and is currently serving time was not protected by former
section 552.108 unless the law enforcement agency demonstrated that its release would unduly
interfere with law enforcement.494
ii. Internal Records of a Law Enforcement Agency
To withhold internal records and notations of law enforcement agencies and prosecutors under
former section 552.108, a governmental body had to demonstrate how release of the information
would unduly interfere with law enforcement and crime prevention.495 For example, the Department
of Public Safety was permitted to withhold a list of stations that issue drivers licenses and the
corresponding code that designates each station on the drivers licenses issued by that station.496
Although the information did not on its face suggest that its release would unduly interfere with law
enforcement, the Department of Public Safety explained that the codes are used by officers to
determine whether a license is forged and argued that releasing the list of stations and codes would
reduce the value of the codes for detecting forged drivers licenses.497 The attorney general
previously held that release of routine investigative procedures, techniques that are commonly
known, and routine personnel information would not unduly interfere with law enforcement and
crime prevention.498
The Texas Supreme Court has addressed the applicability of former section 552.108 to the internal
records and notations of the comptrollers office. In A & T Consultants, Inc. v. Sharp,499 the supreme
court stated that former section 552.108 has the same scope as section 552(b)(7) of the federal
Freedom of Information Act,500 which prevents the disclosure of investigatory records that would
reveal law enforcement methods, techniques, and strategies, including those the Internal Revenue
Service uses to collect federal taxes.501 Some information, such as the date a taxpayers name
appeared on a generation list and the assignment date and codes in audits, is excepted from
disclosure by former section 552.108 because it reflects the internal deliberations within the
comptrollers office and would interfere with the comptrollers law enforcement efforts.502 For
audits that have been concluded, there is little harm in releasing some of this information.503 The
494
495
496
497
Open Records Decision No. 341 at 12(1982).
498
499
A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995).
500
5 U.S.C. 552(b)(7).
501
A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 678 (Tex. 1995).
502
503
A & T Consultants, Inc. v. Sharp, 904 S.W .2d 668, 678 (Tex. 1995) (pre-audit generation and assignment dates not
excepted under Govt Code 552.108 once audit completed).

97
Appendix 23
audit method and audit group remain excepted from disclosure before, during, and after the
comptroller undertakes a taxpayer audit under former section 552.108.504
The attorney general also addressed whether internal records and notations could be withheld under
the statutory predecessor to section 552.108 in the following decisions:
Open Records Decision No. 531 (1989) detailed guidelines regarding a police departments
use of force policy may be withheld, but not those portions of the procedures that restate
generally known common-law rules, constitutional limitations, or Penal Code provisions; the
release of the detailed guidelines would impair an officers ability to arrest a suspect and would
place individuals at an advantage in confrontations with police;
Open Records Decision No. 508 (1988) the dates on which specific prisoners are to be
transferred from a county jail to the Texas Department of Corrections may be withheld prior to
the transfer because release of this information could impair security, but these dates may not be
withheld after the prisoner is transferred because the public has a legitimate interest in the
information;
Open Records Decision No. 506 (1988) the cellular telephone numbers assigned to county
officials and employees with specific law enforcement duties may be withheld;
Open Records Decision No. 413 (1984) a sketch showing the security measures that the Texas
Department of Corrections plans to use for its next scheduled execution may be withheld because
its release may make crowd control unreasonably difficult;
Open Records Decision No. 394 (1983) except for information regarding juveniles, a jail
roster may not be withheld; a jail roster is an internal record that reveals information specifically
made public in other forms, such as the names of persons arrested;
Open Records Decision No. 369 (1983) notes recording a prosecutors subjective comments
about former jurors may be withheld; releasing these comments would tend to reveal future
prosecutorial strategy;
Open Records Decision Nos. 211 (1978), 143 (1976) information that would reveal the
identities of undercover agents or where employees travel on sensitive assignments may be
withheld.
b. Concluded Cases
With regard to the second category of information, information relating to a criminal investigation
or prosecution that ended in a result other than a conviction or deferred adjudication may be withheld
under sections 552.108(a)(2) and 552.108(b)(2). Sections 552.108(a)(2) and 552.108(b)(2) cannot
apply to an open criminal file because the investigation or prosecution for such a file has not
concluded. If a case is still open and pending, either at the investigative or prosecution level, the
504

98
Appendix 23
subsections that can apply are sections 552.108(a)(1) and 552.108(b)(1), not 552.108(a)(2) and
552.108(b)(2).
To establish the applicability of sections 552.108(a)(2) and 552.108(b)(2), a governmental body must
demonstrate that the requested information relates to a criminal investigation that concluded in a
final result other than a conviction or deferred adjudication.
c. Information Relating to a Threat Against a Peace Officer or Detention Officer
The third category of information protected under section 552.108(a)(3) consists of information
relating to a threat against a peace officer or detention officer that is collected or disseminated under
section 411.048 of the Government Code. Under section 411.048, the Department of Public Safetys
Bureau of Identification and Records is required to create and maintain an index for the purpose of
collecting and disseminating information regarding threats of serious bodily injury or death made
against a peace officer.505 The attorney general determined in an informal letter ruling that
information provided to the Bureau of Identification and Records for potential inclusion in its
database regarding threats made against a peace officer was excepted from disclosure under
section 552.108(a)(3).506
d. Prosecutor Information
Under the fourth category of information, sections 552.108(a)(4) and 552.108(b)(3) protect
information, including an internal record or notation, prepared by a prosecutor in anticipation of or
in the course of preparing for criminal litigation or information that reflects the prosecutors mental
impressions or legal reasoning. When a governmental body asserts that the information reflects the
prosecutors mental impressions or legal reasoning, the governmental body should, in its request for
a ruling, explain how the information does so.
3. Limitations on Scope of Section 552.108
Section 552.108(c) provides that basic information about an arrested person, an arrest, or a crime
may not be withheld under section 552.108. The kinds of basic information not excepted from
disclosure by section 552.108 are those that were deemed public in Houston Chronicle Publg Co.
v. City of Houston and catalogued in Open Records Decision No. 127 (1976).507 Basic information
is information that ordinarily appears on the first page of an offense report, such as:
(a)
the name, age, address, race, sex, occupation, alias, social security number, police
department identification number, and physical condition of the arrested person;
(b)
the date and time of the arrest;
505
506
507
Houston Chronicle Publg Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. Houston [14th Dist.] 1975),
writ refd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).

99
Appendix 23
(c)
the place of the arrest;
(d)
the offense charged and the court in which it is filed;
(e)
the details of the arrest;
(f)
booking information;
(g)
the notation of any release or transfer;
(h)
bonding information;
(i)
the location of the crime;
(j)
the identification and description of the complainant;
(k)
the premises involved;
(l)
the time of occurrence of the crime;
(m) the property involved, if any;

(n)
the vehicles involved, if any;
(o)
a description of the weather;
(p)
a detailed description of the offense; and
(q)
the names of the arresting and investigating officers.508
Generally, the identity of the complainant may not be withheld from disclosure under section
552.108. However, the identity of the complainant may be withheld in certain instances under other
provisions of the law. For example, where the complainant is also the victim of a serious sexual
offense, the identity of the complainant must be withheld from public disclosure pursuant to section
552.101 because such information is protected by common-law privacy.509 The attorney general has
also determined that, where the complainant is also an informer for purposes of the informers
privilege, the complainants identity may be withheld under the common-law informers privilege.510
Although basic information not excepted from disclosure by section 552.108 often is described by
its location (first-page offense report information), the location of the information or the label
placed on it is not determinative of its status under section 552.108. For example, radio dispatch
logs or radio cards maintained by a police department that contain the type of information deemed
508
509
See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982).
510
See Open Records Letter No. 2004-8297 (2004).

100
Appendix 23
public generally may not be withheld.511 Likewise, basic information appearing in other records of
law enforcement agencies, such as blotters, arrest sheets, and show-up sheets, is not excepted from
disclosure by section 552.108.512 Conversely, a video of a booking that conveys information
excepted from disclosure is not subject to disclosure when editing the tape is practically impossible
and the public information on the tape is available in written form.513
Section 552.108 generally does not apply to information made public by statute or to information
to which a statute grants certain individuals a right of access.514 For example, even if an accident
report completed pursuant to Chapter 550 of the Transportation Code relates to a pending criminal
investigation, a law enforcement entity must release the accident report under section 550.065(c)(4)
of the Transportation Code if an individual provides at least two of the following three pieces of
information:
(1)
the date of the accident,
(2)
the specific address or the highway or street where the accident occurred, or
(3)
the name of any person involved in the accident.515
Information contained in a public court record and subject to section 552.022(a)(17) also is not
excepted from disclosure under section 552.108.516
4. Application of Section 552.108 to Information Relating to Police Officers and Complaints
Against Police Officers
Because of their role in protecting the safety of the general public, law enforcement officers generally
can expect a lesser degree of personal privacy than other public employees.517 General information
about a police officer usually is not excepted from required public disclosure by section 552.108.
For example, a police officers age, law enforcement background, and previous experience and
employment usually are not excepted from disclosure by section 552.108.518
Similarly, information about complaints against police officers generally may not be withheld under
section 552.108. For example, the names of complainants, the names of the officers who are the
511
Open Records Decision No. 394 at 34 (1983); see City of Lubbock v. Cornyn, 993 S.W .2d 461 (Tex. App. Austin
1999, no pet.).
512
513
514
Open Records Decision Nos. 161 (1977), 146 at 2 (1976); see also Open Records Decision Nos. 613 at 4 (1993),
451 at 4 (1986).
515
Transp. Code 550.065(c)(4).
516
See Govt Code 552.022(a)(17).
517
See Tex. State Employees Union v. Tex. Dept of Mental Health & Mental Retardation, 746 S.W .2d 203, 206
(Tex. 1987); Open Records Decision No. 562 at 9 n.2 (1990).
518
City of Fort Worth v. Cornyn, 86 S.W .3d 320, 32628 (Tex. App. Austin 2002, no pet.); Open Records Decision
Nos. 562 at 10 (1990), 329 at 1 (1982).

101
Appendix 23
subjects of complaints, an officers written response to a complaint, and the final disposition of a
complaint generally are not excepted from disclosure by section 552.108.519 Information about
complaints against public officers may be withheld under section 552.108 if the police department
can demonstrate how release of the information will interfere with the detection, investigation, or
prosecution of crime. However, section 552.108 is inapplicable where a complaint against a law
enforcement officer does not result in a criminal investigation or prosecution.520
a. Personnel Files of Police Officers Serving in Civil Service Cities
The disclosure of information from the personnel files of police officers serving in cities that have
adopted chapter 143 of the Local Government Code (the fire fighters and police officers civil
service law) is governed by section 143.089 of the Local Government Code.521 Section 143.089
contemplates two different types of personnel files: (1) a police officers civil service file that the
civil service director is required to maintain pursuant to section 143.089(a) and (2) an internal file
that the police department may maintain for its own use pursuant to section 143.089(g).522 A police
officers civil service file must contain specified items, including commendations, documents
relating to misconduct that resulted in disciplinary action and periodic evaluations by the officers
supervisor.523 In cases in which a police department investigates a police officers misconduct and
takes disciplinary action524 against a police officer, it is required by section 143.089(a)(2) to place
all investigatory records relating to the investigation and disciplinary action, including background
documents such as complaints, witness statements, and documents of like nature from individuals
who were not in a supervisory capacity, in the police officers civil service file maintained under
section 143.089(a).525 Records maintained in the police officers civil service file are subject to
release under chapter 552 of the Government Code.526 Furthermore, pursuant to section 143.089(e),
the police officer has a right of access to the records maintained in his civil service file.527 However,
information maintained in a police departments internal file pursuant to section 143.089(g) is
confidential and must not be released.528
519
Open Records Decision Nos. 350 at 3 (1982), 342 at 2 (1982), 329 at 2 (1982).
520
Morales v. Ellen, 840 S.W .2d 519, 52526 (Tex. App. El Paso 1992, writ denied) (construing statutory
predecessor).
521
See City of San Antonio v. San Antonio Express-News, 47 S.W .3d 556 (Tex. App. San Antonio 2000, pet. denied);
City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946 (Tex. App. Austin 1993, writ denied).
522
Local Govt Code 143.089(a), (g).
523
Local Govt Code 143.089(a).
524
For the purpose of section 143.089 of the Local Government Code, the term disciplinary action includes removal,
suspension, demotion, and uncompensated duty. Local Govt Code 143.051.055. Disciplinary action does
not include a written reprimand. See Attorney General Opinion JC-0257 at 5 (2000).
525
Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 (Tex. App. Austin 2003, no pet.).
526
See Local Govt Code 143.089(f); Open Records Decision No. 562 at 6 (1990).
527
Local Govt Code 143.089(e).
528
See Local Govt Code 143.089(g); City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex.
App. Austin 1993, writ denied).

102
Appendix 23
Absent federal authority, a police department must not release to a federal law enforcement agency
information made confidential under section 143.089(g).529 A city police department should refer
a request for information in a police officers personnel file to the civil service director or the
directors designee.530
5. Other Related Law Enforcement Records
a. Criminal History Information
Where an individuals criminal history information has been compiled or summarized by a
governmental entity, the information takes on a character that implicates the individuals right of
privacy in a manner that the same individuals records in an uncompiled state do not.531 Thus, when
a requestor asks for all information concerning a certain named individual and that individual is a
suspect, arrestee, or criminal defendant in the information at issue, a law enforcement agency must
withhold this information under section 552.101 of the Government Code as that individuals
privacy right has been implicated.532
Federal law also imposes limitations on the dissemination of criminal history information obtained
from the federal National Crime Information Center (NCIC) and its Texas counterpart, the Texas
Crime Information Center (TCIC).533 In essence, federal law requires each state to observe its own
laws regarding dissemination of criminal history information it generates, but requires a state to
maintain as confidential any information from other states or the federal government that the state
obtains by access to the Interstate Identification Index, a component of the NCIC.534
Chapter 411, subchapter F, of the Government Code contains the Texas statutes that govern the
confidentiality and release of TCIC information obtained from the Texas Department of Public
Safety. However, subchapter F does not prohibit a criminal justice agency from disclosing to the
public criminal history record information that is related to the offense for which a person is involved
in the criminal justice system.535 Moreover, the protection in subchapter F does not extend to
driving record information maintained by the Department of Public Safety pursuant to subchapter
C of chapter 521 of the Transportation Code.536 Any person is entitled to obtain from the
529
530
Local Govt Code 143.089(g).
531
Cf. United States Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when
considering prong regarding individuals privacy interest, court recognized distinction between public records found
in courthouse files and local police stations and compiled summary of information and noted individual has
significant privacy interest in compilation of ones criminal history).
532
See United States Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989);
cf. Govt Code 411.083.
533
534
See 28 C.F.R. pt. 20; Open Records Decision No. 565 at 1012 (1990).
535
536
Govt Code 411.082.

103
Appendix 23
Department of Public Safety information regarding convictions and deferred adjudications and the
persons own criminal history information.537
b. Juvenile Law Enforcement Records
Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided
for the confidentiality of juvenile law enforcement records. Juvenile law enforcement records
pertaining to conduct occurring before January 1, 1996, are governed by the former section 51.14(d),
which was continued in effect for that purpose.538
The Seventy-fourth Legislature replaced section 51.14 with section 58.007 of the Family Code,
tracking the language of section 51.14 but omitting the portion of the statute that made juvenile law
enforcement records confidential in the possession of a law enforcement agency.539 The Seventyfifth Legislature, however, amended section 58.007 to again make juvenile law enforcement records
confidential effective September 1, 1997.540 However, it chose not to make this most recent
amendment retroactive in application. Consequently, law enforcement records pertaining to juvenile
conduct that occurred between January 1, 1996, and September 1, 1997, are not subject to the
confidentiality provisions of either the former section 51.14(d) or the current section 58.007 of the
Family Code.
The relevant language of Family Code section 58.007(c) provides as follows:
(c)
Except as provided by Subsection (d), law enforcement records and files concerning
a child and information stored, by electronic means or otherwise, concerning the
child from which a record or file could be generated may not be disclosed to the
public and shall be:
(1) if maintained on paper or microfilm, kept separate from adult files and records;
(2) if maintained electronically in the same computer system as records or files
relating to adults, be accessible under controls that are separate and distinct from
controls to access electronic data concerning adults; and
(3) maintained on a local basis only and not sent to a central state or federal
depository, except as provided by Subchapters B, D, and E.
537
Govt Code 411.083(b)(3), .135(a)(2).
538
Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591.
539
540
Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 20, 1997 Tex. Gen. Laws 4179, 4187.

104
Appendix 23
Former section 51.14(d) and section 58.007(c) apply only to the records of a child541 who is alleged
to have engaged in delinquent conduct or conduct indicating a need for supervision.542 Section
58.007(c) does not apply where the information in question involves a juvenile as only a
complainant, witness, or individual party and not a juvenile as a suspect or offender. Furthermore,
while former section 51.14 specifically excluded from protection records of a child certified for
prosecution as an adult, section 58.007 contains no similar provision;543 thus, under section
58.007(c), records of a child are protected regardless of whether the child is certified as an adult.
Section 58.007(c) applies to entire law enforcement records and files; therefore, a law enforcement
entity is generally prohibited from releasing even basic information from an investigation file when
section 58.007(c) applies.
However, section 58.007(e) provides:
(e)
Law enforcement records and files concerning a child may be inspected or copied by
a juvenile justice agency as that term is defined by Section 58.101, a criminal justice
agency as that term is defined by Section 411.082, Government Code, the child, and
the childs parent or guardian.
....
(j)
Before a child or a childs parent or guardian may inspect or copy a record or file
concerning the child under Subsection (e), the custodian of the record or file shall
redact:
(1) any personally identifiable information about a juvenile suspect, offender, victim,
or witness who is not the child; and
(2) any information that is excepted from required disclosure under Chapter 552,
Government Code, or other law.
Pursuant to section 58.007(e), a governmental body may not withhold a childs law enforcement
records from the childs parent, guardian, or the child under section 58.007(c). However, pursuant
to section 58.007(j)(2), a governmental body may raise other exceptions to disclosure. Also pursuant
to section 58.007(j)(1), personally identifiable information of a juvenile suspect, offender, witness,
or victim who is not the child must be withheld. For purposes of section 58.007(j)(1), a juvenile
victim or witness is a person under eighteen years of age.
541
Section 51.02 of the Family Code defines child as a person who is: (A) ten years of age or older and under 17
years of age; or (B) seventeen years of age or older and under 18 years of age who is alleged or found to have
engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before
becoming 17 years of age. Fam. Code 51.02(2).
542
Fam. Code 51.03 (defining delinquent conduct and conduct indicating a need for supervision); see Open
Records Decision No. 680 at 4 (2003).
543
Compare Act of May 22, 1993, 73rd Leg., R.S., ch. 461, 3, 1993 Tex. Gen. Laws 1850, 1852, repealed by Act
of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591, with Fam. Code 58.007.

105
Appendix 23
c. Child Abuse and Neglect Records

The relevant language of Family Code section 261.201(a) provides:
(a)
Except as provided by Section 261.203, the following information is confidential, is

not subject to public release under Chapter 552, Government Code, and may be
disclosed only for purposes consistent with this code and applicable federal or state
law or under rules adopted by an investigating agency:
(1) a report of alleged or suspected abuse or neglect made under this chapter and the
identity of the person making the report; and
(2) except as otherwise provided in this section, the files, reports, records,
communications, audiotapes, videotapes, and working papers used or developed
in an investigation under this chapter or in providing services as a result of an
investigation.
Section 261.201(a) applies to a report of and information used or developed in an investigation of

suspected abuse or neglect544 of a child545 and the identity of the individual who made the report of
abuse or neglect.546 Section 261.201(h), however, states section 261.201 does not apply to
investigations of abuse or neglect in a home or facility regulated under chapter 42 of the Human
Resources Code, such as a childcare facility.
Moreover, section 261.201(k) and 261.201(l) provide:
(k)
Notwithstanding Subsection (a), an investigating agency, other than the department

or the Texas Youth Commission, on request, shall provide to the parent, managing
conservator, or other legal representative of a child who is the subject of reported
abuse or neglect, or to the child if the child is at least 18 years of age, information
concerning the reported abuse or neglect that would otherwise be confidential under
this section. The investigating agency shall withhold information under this
subsection if the parent, managing conservator, or other legal representative of the
child requesting the information is alleged to have committed the abuse or neglect.
(l)
Before a child or a parent, managing conservator, or other legal representative of a

child may inspect or copy a record or file concerning the child under Subsection (k),
the custodian of the record or file must redact:
(1) any personally identifiable information about a victim or witness under 18 years
of age unless that victim or witness is:
(A) the child who is the subject of the report; or
544
See Fam. Code 261.001(1), (4) (defining abuse and neglect for section 261.201 purposes).
545
See Fam. Code 101.003(a) (defining child for section 261.201 purposes).
546
Open Records Decision No. 440 (1986) (construing statutory predecessors).

106
Appendix 23
(B) another child of the parent, managing conservator, or other legal

representative requesting the information;
(2) any information that is excepted from required disclosure under Chapter 552,
Government Code, or other law; and
(3) the identity of the person who made the report.
Pursuant to section 261.201(k), a governmental body may not withhold child abuse or neglect
records from the parent, managing conservator, or other legal representative of the child, if the
parent, managing conservator, or other legal representative is not accused of committing the abuse
or neglect, or from the child if the child is at least eighteen years of age. Pursuant to section
261.201(l)(2), a governmental body may raise other exceptions to disclosure for the child abuse or
neglect records. Further, pursuant to sections 261.201(l)(1) and 261.201(l)(3), personally identifiable
information of a victim or witness under eighteen years of age who is not the child or another child
of the parent, managing conservator, or other legal representative and the identity of the reporting
party must be withheld.
d. Sex Offender Registration Information
Under article 62.005 of the Code of Criminal Procedure, all information contained in either an adult
or juvenile sex offender registration form and subsequently entered into the Department of Public
Safety database is public information and must be released upon written request, except for the
registrants social security number, drivers license number, home, work, or cellular telephone
number, information described by article 62.051(c)(7) or required by the Department of Public Safety
under article 62.051(c)(8), and any information that would reveal the victims identity.547
Local law enforcement authorities are required under article 62.053 of the Code of Criminal
Procedure to provide school officials with any information the authority determines is necessary
to protect the public regarding sex offenders except the persons social security number, drivers
license number, home, work, or cellular telephone number, and any information that would identify
the victim of the offense.548
Neither a school district official nor the general public is authorized to receive from local law
enforcement authorities sex offender registration information pertaining to individuals whose
reportable convictions or adjudication occurred prior to September 1, 1970.549
e. Records of 9-1-1 Calls
Originating telephone numbers and addresses of 9-1-1 callers furnished on a call-by-call basis by a
telephone service supplier to a 9-1-1 emergency communication district established under subchapter
547
Crim. Proc. Code art. 62.005(b); Open Records Decision No. 645 at 3 (1996) (construing statutory predecessor).
548
Crim. Proc. Code art. 62.053(e), (f) (information must be released if restrictions under Crim. Proc. Code art. 62.054
are met).
549
See Crim. Proc. Code art. 62.002(a).

107
Appendix 23
B, C, or D of chapter 772 of the Health and Safety Code are confidential under sections 772.118,
772.218, and 772.318 of the Health and Safety Code, respectively.550 Chapter 772 does not except
from disclosure any other information contained on a computer aided dispatch report that was
obtained during a 9-1-1 call.551 Subchapter E, which applies to counties with populations over 1.5
million, does not contain a similar confidentiality provision. Other exceptions to disclosure in the
Public Information Act may apply to information not otherwise confidential under section 772.118,
section 772.218, or section 772.318 of the Health and Safety Code.552
f. Certain Information Related to Terrorism and Homeland Security
Sections 418.176 through 418.182 of the Government Code, part of the Texas Homeland Security
Act, make confidential certain information related to terrorism or related criminal activity. The fact
that information may relate to a governmental bodys security concerns does not make the
information per se confidential under the Texas Homeland Security Act. As with any exception to
disclosure, a governmental body asserting one of the confidentiality provisions of the Texas
Homeland Security Act must explain how the responsive records fall within the scope of the claimed
provision.553
In Tex. Dept of Pub. Safety v. Abbott, the Texas Department of Public Safety challenged the
conclusion of the attorney general and the trial court that videos recorded by security cameras in a
Texas Capitol hallway were not confidential under section 418.182 of the Government Code.554 In
reversing this conclusion, the Third Court of Appeals found the Texas Department of Public Safety
demonstrated the videos relate to the specifications of the capitol security system used to protect
public property from an act of terrorism or related criminal activity because the legislatures use of
relates to is a plain legislative choice to broadly protect information regarding security systems
designed to protect public property. Thus, the court concluded the recorded images necessarily relate
to the specifications of the security system that recorded them.
Release of certain information about aviation and maritime security is governed by federal law.555
The attorney general has determined in several informal letter rulings that the decision to withhold
or release such information rests with the head of the federal Transportation Security Administration
(the TSA) or the Coast Guard and that requests for such information should be referred to the TSA
or Coast Guard for their decision concerning disclosure of the information.556
550
551
552
553
See Govt Code 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).
554
Tex. Dept of Pub. Safety v. Abbott, 310 S.W .3d 670 (Tex. App. Austin 2010, no pet.)
555
49 U.S.C. 114(r); 49 C.F.R. pt. 1520.
556
Open Records Letter Nos. 2013-09028 (2013), 2009-11201 (2009), 2005-07525 (2005).

108
Appendix 23
I.
Section 552.1085: Confidentiality of Sensitive Crime Scene Image

(a)
In this section:
(1) Deceased persons next of kin means:
(A) the surviving spouse of the deceased person;
(B) if there is no surviving spouse of the deceased, an adult child of the deceased
person; or
(C) if there is no surviving spouse or adult child of the deceased, a parent of the
deceased person.
(2) Defendant means a person being prosecuted for the death of the deceased
person or a person convicted of an offense in relation to that death and appealing
that conviction.
(3) Expressive work means:
(A) a fictional or nonfictional entertainment, dramatic, literary, or musical work
that is a play, book, article, musical composition, audiovisual work, radio or
television program, work of art, or work of political, educational, or
newsworthy value;
(B) a work the primary function of which is the delivery of news, information,
current events, or other matters of public interest or concern; or
(C) an advertisement or commercial announcement of a work described by
Paragraph (A) or (B).
(4) Local governmental entity means a county, municipality, school district, charter
school, junior college district, or other political subdivision of this state.
(5) Public or private institution of higher education means:
(A) an institution of higher education, as defined by Section 61.003, Education
Code; or
(B) a private or independent institution of higher education, as defined by Section
61.003, Education Code.
(6) Sensitive crime scene image means a photograph or video recording taken at
a crime scene, contained in or part of a closed criminal case, that depicts a
deceased person in a state of dismemberment, decapitation, or similar mutilation
or that depicts the deceased persons genitalia.
109
Appendix 23
(7) State agency means a department, commission, board, office, or other agency
that is a part of state government and that is created by the constitution or a
statute of this state. The term includes an institution of higher education as
defined by Section 61.003, Education Code.
(b)
For purposes of this section, an Internet website, the primary function of which is not
the delivery of news, information, current events, or other matters of public interest
or concern, is not an expressive work.
(c)
A sensitive crime scene image in the custody of a governmental body is confidential

and excepted from the requirements of Section 552.021 and a governmental body may
not permit a person to view or copy the image except as provided by this section.
This section applies to any sensitive crime scene image regardless of the date that the
image was taken or recorded.
(d)
Notwithstanding Subsection (c) and subject to Subsection (e), the following persons
may view or copy information that constitutes a sensitive crime scene image from a
governmental body:
(1) the deceased persons next of kin;
(2) a person authorized in writing by the deceased persons next of kin;
(3) a defendant or the defendants attorney;
(4) a person who establishes to the governmental body an interest in a sensitive crime
scene image that is based on, connected with, or in support of the creation, in any
medium, of an expressive work;
(5) a person performing bona fide research sponsored by a public or private
institution of higher education with approval of a supervisor of the research or
a supervising faculty member;
(6) a state agency;
(7) an agency of the federal government; or
(8) a local governmental entity.
(e)
This section does not prohibit a governmental body from asserting an exception to
disclosure of a sensitive crime scene image to a person identified in Subsection (d) on
the grounds that the image is excepted from the requirements of Section 552.021
under another provision of this chapter or another law.
(f)
Not later than the 10th business day after the date a governmental body receives a
request for a sensitive crime scene image from a person described by Subsection
(d)(4) or (5), the governmental body shall notify the deceased persons next of kin of
110
Appendix 23
the request in writing. The notice must be sent to the next of kins last known
address.
(g)
A governmental body that receives a request for information that constitutes a

sensitive crime scene image shall allow a person described in Subsection (d) to view
or copy the image not later than the 10th business day after the date the
governmental body receives the request unless the governmental body files a request
for an attorney general decision under Subchapter G regarding whether an exception
to public disclosure applies to the information.557
There are no cases or formal opinions interpreting section 552.1085.
J.
Section 552.109: Confidentiality of Certain Private Communications of

an Elected Office Holder
Section 552.109 of the Government Code excepts from required public disclosure:
Private correspondence or communications of an elected office holder relating to matters
the disclosure of which would constitute an invasion of privacy . . . .
The test to be applied to information under section 552.109 is the same as the common-law privacy
standard under section 552.101 and decisions under section 552.109 and its statutory predecessor
rely on the same tests applicable under section 552.101.558 The common-law privacy standard is laid
out in Indus. Found. v. Tex. Indus. Accident Bd., and protects information if it (1) contains highly
intimate or embarrassing facts, the publication of which would be highly objectionably to a
reasonable person, and (2) is not of legitimate concern to the public.559 Both prongs of this test must
be established.560 Section 552.109 only protects the privacy interests of elected office holders.561
It does not protect the privacy interests of their correspondents.562 Certain records of
communications between citizens and members of the legislature or the lieutenant governor may not
be subject to the Act.563
In the following open records decisions, the attorney general determined that certain information was
not excepted from required public disclosure under the statutory predecessor to section 552.109:
Open Records Decision No. 506 (1988) cellular telephone numbers of county officials where
county paid for installation of service and for telephone bills, and which service was intended
557
Act of May 27, 2013, 83rd Leg., R.S., S.B. 1512, 1 (to be codified at Govt Code 552.1085).
558
Open Records Decision Nos. 506 at 3 (1988), 241 (1980), 212 (1978).
559
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
560
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W .2d 668, 681685 (Tex. 1976), cert. denied, 430 U.S. 931
(1977).
561
562
563
See Govt Code 306.003, .004; Open Records Decision No. 648 (1996); Open Records Letter Nos. 2012-14193
(2012), 2012-06238 (2012).

111
Appendix 23
to be used by officials in conducting official public business, because public has a legitimate
interest in the performance of official public duties;
Open Records Decision No. 473 (1987) performance evaluations of city council appointees,
because this section was intended to protect the privacy only of elected office holders; although
city council members prepared the evaluations, the evaluations did not implicate their privacy
interests;
Open Records Decision No. 332 (1982) letters concerning a teachers performance written
by parents to school trustees, because nothing in the letters constituted an invasion of privacy of
the trustees;
Open Records Decision No. 241 (1980) correspondence of the governor regarding potential
nominees for public office, because the material was not protected by a constitutional right of
privacy; furthermore, the material was not protected by common-law right of privacy because
it did not contain any highly embarrassing or intimate facts and there was a legitimate public
interest in the appointment process;564 and
Open Records Decision No. 40 (1974) itemized list of long distance calls made by legislators
and charged to their contingent expense accounts, because such a list is not a communication.
K. Section 552.110: Confidentiality of Trade Secrets and Confidentiality of

Certain Commercial or Financial Information
(a)
A trade secret obtained from a person and privileged or confidential by statute or

judicial decision is excepted from [required public disclosure].
(b)
Commercial or financial information for which it is demonstrated based on specific

factual evidence that disclosure would cause substantial competitive harm to the
person from whom the information was obtained is excepted from [required public
disclosure].
Section 552.110 refers to two types of information: (1) trade secrets and (2) confidential commercial
or financial information obtained from a person. The Act requires a governmental body to make a
good faith attempt to notify in writing a person whose proprietary information may be subject to
section 552.110 within ten business days after receiving the request for the information.565 A person
so notified bears the burden of establishing the applicability of section 552.110.566 A copy of the
form the Act requires the governmental body to send to a person whose information may be subject
to section 552.110, as well as section 552.101, section 552.113, or section 552.131, can be found in
Part Nine of this Handbook.
564
565
Govt Code 552.305.
566
Govt Code 552.305.

112
Appendix 23
1. Trade Secrets
The Texas Supreme Court has adopted the definition of the term trade secret from the Restatement
of Torts, section 757 (1939).567 The determination of whether any particular information is a trade
secret is a determination of fact.568 Noting that an exact definition of a trade secret is not possible,
the Restatement lists six factors to be considered in determining whether particular information
constitutes a trade secret:
(1)
the extent to which the information is known outside of [the companys] business;
(2)
the extent to which it is known by employees and others involved in [the companys
business];
(3)
the extent of measures taken by [the company] to guard the secrecy of the information;
(4)
the value of the information to [the company] and to [its] competitors;
(5)
the amount of effort or money expended by [the company] in developing the information;
[and]
(6)
the ease or difficulty with which the information could be properly acquired or duplicated
by others.569
A party asserting the trade secret prong of section 552.110 is not required to satisfy all six factors
listed in the Restatement in order to prevail on its claim.570 In addition, other circumstances may be
relevant in determining whether information qualifies as a trade secret.571 Open Records Decision
No. 552 (1990) noted that the attorney general is unable to resolve disputes of fact regarding the
status of information as trade secrets and must rely upon the facts alleged or upon those facts that
are discernible from the documents submitted for inspection. For this reason, the attorney general
will accept a claim for exception as a trade secret when a prima facie case is made that the
information in question constitutes a trade secret and no argument is made that rebuts that assertion
as a matter of law.572 In Open Records Decision No. 609 (1992), there was a factual dispute between
the governmental body and the proponent of the trade secret protection as to certain elements of a
prima facie case. Because the attorney general cannot resolve such factual disputes, the matter was
referred back to the governmental body for fact-finding.
567
Hyde Corp. v. Huffines, 314 S.W .2d 763, 776 (Tex.), cert. denied, 358 U.S. 898 (1958).
568
Open Records Decision N o. 552 at 2 (1990); see Envoy Med. Sys. v. State, 108 S.W.3d 333, 337 (Tex.
App. Austin 2003, no pet.).
569
R ESTATEM EN T O F T O RTS 757 cmt. b (1939); see Ctr. for Econ. Justice v. Am. Ins. Assn, 39 S.W .3d 337, 34445
(Tex. App. Austin 2001, no pet.); Birnbaum v. Alliance of Am. Insurers, 994 S.W .2d 766, 783 (Tex. App. Austin
1999, pet. denied).
570
See In re Bass, 113 S.W.3d 735, 740 (Tex. 2003).
571
See In re Bass, 113 S.W.3d 735, 740 (Tex. 2003).
572

113
Appendix 23
2. Commercial or Financial Information Privileged or Confidential by Law

Section 552.110 now expressly includes the standard for excepting from disclosure commercial and
financial information.573 An interested person must demonstrate based on specific factual evidence
that disclosure would cause substantial competitive harm to the person from whom the information
was obtained. This standard resembles part of the test for applying the correlative exemption in the
federal Freedom of Information Act, 5 U.S.C. 552(b)(4), as set out in Natl Parks & Conservation
Assn v. Morton.574 That part of the National Parks test states that commercial or financial
information is confidential if disclosure of the information is likely to cause substantial harm to the
competitive position of the person from whom the information was obtained.575 The current
commercial and financial information branch of section 552.110 does not incorporate the part of the
National Parks test for information that is likely to impair the governments ability to obtain
necessary information in the future. Like the federal standard, section 552.110(b) requires the
business enterprise whose information is at issue to make a specific factual or evidentiary showing,
not conclusory or generalized allegations, that substantial competitive injury would likely result from
disclosure.576
L. Section 552.111: Agency Memoranda

An interagency or intraagency memorandum or letter that would not be available by law
to a party in litigation with the agency . . . .
To be protected under section 552.111, information must consist of interagency or intraagency
communications. Although information protected by section 552.111 is most commonly generated
by agency personnel, information created for an agency by outside consultants acting on behalf of
the agency in an official capacity may be within section 552.111.577 An agencys communications
with other agencies and third parties, however, are not protected unless the agency demonstrates that
573
The former section 552.110 excepted commercial and financial information . . . privileged or confidential by statute
or judicial decision. It did not set out the standard for excepting commercial or financial information. In 1996,
the attorney general followed the test for applying section 552(b)(4) of the federal Freedom of Information Act as
set forth in Natl Parks & Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974). See Open Records
Decision No. 639 at 23 (1996). However, the Third Court of Appeals held that National Parks was not a judicial
decision within the meaning of the former section 552.110. Birnbaum v. Alliance of Am. Insurers, 994 S.W .2d 766
(Tex. App. Austin 1999, pet. denied). Consequently, after the Birnbaum decision, the attorney general no longer
used the National Parks standard for excepting commercial or financial information under former section 552.110.
574
Natl Parks & Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974).
575
See Natl Parks & Conservation Assn v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
576
577
Open Records Decision No. 462 (1987) (construing statutory predecessor).

114
Appendix 23
the parties to the communications share a privity of interest.578 For example, correspondence
between a licensing agency and a licensee is not excepted under section 552.111.579
Also, to be protected under section 552.111, an interagency or intraagency communication must be
privileged from discovery in civil litigation involving the agency.580 The attorney general has
interpreted section 552.111 to incorporate both the deliberative process privilege and the work
product privilege.581
1. Deliberative Process Privilege
Section 552.111 has been read to incorporate the deliberative process privilege into the Public
Information Act for intraagency and interagency communications.582 The deliberative process
privilege, as incorporated into the Public Information Act, protects from disclosure intraagency and
interagency communications consisting of advice, opinion or recommendations on policymaking
matters of the governmental body at issue.583 The purpose of withholding advice, opinion or
recommendations under section 552.111 is to encourage frank and open discussion within the
agency in connection with its decision-making processes pertaining to policy matters.584 An
agencys policymaking functions do not encompass routine internal administrative and personnel
matters; disclosure of information relating to such matters will not inhibit free discussion among
agency personnel as to policy issues.585 An agencys policymaking functions do include, however,
administrative and personnel matters of broad scope that affect the governmental bodys policy
mission.586 For example, because the information at issue in Open Records Decision No. 615 (1993)
concerned the evaluation of a university professors job performance, the statutory predecessor to
section 552.111 did not except this information from required public disclosure. On the other hand,
the information at issue in Open Records Decision No. 631 (1995) was a report addressing
allegations of systematic discrimination against African-American and Hispanic faculty members
578
See Open Records Decision No. 561 at 9 (1990) (correspondence from Federal Bureau of Investigation officer to
city was not protected by statutory predecessor to Govt Code 552.111, where no privity of interest or common
deliberative process existed between federal agency and city).
579
Open Records Decision No. 474 at 5 (1987) (construing statutory predecessor).
580
581
Open Records Decision Nos. 647 at 56 (1996), 615 at 5 (1993); see City of Garland v. Dallas Morning News, 22
S.W .3d 351, 360 (Tex. 2000).
582
City of Garland v. Dallas Morning News, 22 S.W .3d 351, 360 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917
S.W .2d 455, 456 (Tex. App. Houston [14th Dist.] 1996, writ denied); Tex. Dept of Pub. Safety v. Gilbreath, 842
S.W .2d 408, 41213 (Tex. App. Austin 1992, no writ); Open Records Decision No. 615 at 5 (1993).
583
City of Garland v. Dallas Morning News, 22 S.W .3d 351, 361, 364 (Tex. 2000); Arlington Indep. Sch. Dist. v. Tex.
Attorney Gen., 37 S.W .3d 152, 158 (Tex. App. Austin 2001, no pet.); Open Records Decision No. 615 at 5 (1993).
584
Austin v. City of San Antonio, 630 S.W .2d 391, 394 (Tex. App. San Antonio 1982, writ refd n.r.e.); see also City
of Garland v. Dallas Morning News, 22 S.W .3d 351, 361 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W .2d
455, 456, 457 (Tex. App. Houston [14th Dist.] 1996, writ denied); Tex. Dept of Pub. Safety v. Gilbreath, 842
S.W .2d 408, 412 (Tex. App. Austin 1992, no writ).
585
Open Records Decision No. 615 at 5 (1993); see City of Garland v. Dallas Morning News, 22 S.W.3d 364 (Tex.
2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 456 (Tex. App. Houston [14th Dist.] 1996, writ denied).
586
Open Records Decision No. 631 at 3 (1995); City of Garland v. Dallas Morning News, 969 S.W.2d 548, 557 (Tex.
App. Dallas 1998), affd, 22 S.W.3d 351 (Tex. 2000).

115
Appendix 23
in the retention, tenure, and promotion process at a university. Rather than pertaining solely to the
internal administration of the university, the scope of the report was much broader and involved the
universitys educational mission. Accordingly, section 552.111 excepted from required public
disclosure the portions of the report that constituted advice, recommendations or opinions.587
Even when an internal memorandum relates to a governmental bodys policy functions, the
deliberative process privilege excepts from disclosure only the advice, recommendations, and
opinions found in that memorandum. The deliberative process privilege does not except from
disclosure purely factual information that is severable from the opinion portions of the
memorandum.588
Before June 29, 1993, the attorney general did not confine the application of the statutory
predecessor to section 552.111 solely to communications relating to agencies policymaking
functions. Given the change in the interpretation of the scope of section 552.111, a governmental
body that receives a request for information should exercise caution in relying on attorney general
decisions regarding the applicability of this exception written before June 29, 1993. For example,
in Open Records Decision No. 559 (1990), the attorney general held that the predecessor statute to
section 552.111 also protects drafts of a document that has been or will be released in final form to
the public and any comments or other notations on the drafts because they necessarily represent
advice, opinion, and recommendations of the drafter as to the form and content of the final
document. However, the rationale and scope of this open records decision have been modified
implicitly to apply only to those records involving an agencys policy matters.
2. Work Product Privilege
The attorney general has also concluded that section 552.111 incorporates the privilege for work
product found in Texas Rule of Civil Procedure 192.5.589 Rule 192.5 defines work product as:
(1)
material prepared or mental impressions developed in anticipation of litigation or for

trial by or for a party or a partys representatives, including the partys attorneys,
consultants, sureties, indemnitors, insurers, employees, or agents; or
(2)
a communication made in anticipation of litigation or for trial between a party and

the partys representatives or among a partys representatives, including the partys
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.590
A governmental body raising the work product privilege under section 552.111 bears the burden of
providing the relevant facts in each case to demonstrate the elements of the privilege.591 One element
of the work product test is that the information must have been made or developed for trial or in
587
588
See Open Records Decision No. 615 at 45 (1993); City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex.
2000).
589
590
T EX . R. C IV . P. 192.5(a).
591

116
Appendix 23
anticipation of litigation.592 In order for the attorney general to conclude that information was
created for trial or in anticipation of litigation, the governmental body must demonstrate that at the
time the information was created or acquired:
a) a reasonable person would have concluded from the totality of the circumstances . . . that
there was a substantial chance that litigation would ensue; and b) the party resisting discovery
believed in good faith that there was a substantial chance that litigation would ensue and [created
or obtained the information] for the purpose of preparing for such litigation.593
A substantial chance of litigation does not mean a statistical probability, but rather that litigation
is more than merely an abstract possibility or unwarranted fear.594
Also, as part of the work product test, material or a mental impression must have been prepared or
developed by or for a party or a partys representatives.595 Similarly, in the case of a communication,
the communication must have been between a party and the partys representatives.596 Thus, a
governmental body claiming the work product privilege must identify the parties or potential parties
to the litigation, the person or entity that prepared the information, and any individual with whom
the information was shared.597
If a requestor seeks a governmental bodys entire litigation file, and the governmental body seeks
to withhold the entire file, the governmental body may assert the file is excepted from disclosure in
its entirety because such a request implicates the core work product aspect of the attorney work
product privilege.598 In such an instance, if the governmental body demonstrates the file was created
in anticipation of litigation or for trial, the attorney general will presume the entire file is within the
scope of the privilege.599
592
T EX . R. C IV . P. 192.5(a); Open Records Decision No. 677 at 6 (2002)
593
Natl Tank Co. v. Brotherton, 851 S.W .2d 193, 207 (Tex. 1993); In re Monsanto Co., 998 S.W .2d 917, 92324
(Tex. App. W aco 1999, orig. proceeding).
594
Natl Tank Co. v. Brotherton, 851 S.W .2d 193, 204, 207 (Tex. 1993); see Open Records Decision No. 677 at 7
(2002).
595
T EX . R. C IV . P. 192.5(a)(1); Open Records Decision No. 677 at 7 (2002).
596
T EX . R. C IV . P. 192.5(a)(2); Open Records Decision No. 677 at 78 (2002).
597
598
599
See Open Records Decision No. 647 at 5 (1996) (citing Natl Union Fire Ins. Co. v. Valdez, 863 S.W .2d 458, 461
(Tex. 1993)) (organization of attorneys litigation file necessarily reveals attorneys thought processes); see also
Curry v. Walker, 873 S.W .2d 379, 380 (Tex. 1994) (the decision as to what to include in [the file] necessarily
reveals the attorneys thought processes and concerning the prosecution or defense of the case).

117
Appendix 23
M. Section 552.112: Certain Information Relating to Regulation of Financial

Institutions or Securities
(a)

contained in or relating to examination, operating, or condition reports prepared by
or for an agency responsible for the regulation or supervision of financial institutions
or securities, or both.
(b)
In this section, securities has the meaning assigned by The Securities Act (Article
581-1 et seq., Vernons Texas Civil Statutes).
(c)

submitted by an individual or other entity to the Texas Legislative Council, or to any
state agency or department overseen by the Finance Commission of Texas and the
information has been or will be sent to the Texas Legislative Council, for the purpose
of performing a statistical or demographic analysis of information subject to Section
323.020. However, this subsection does not except from the requirements of Section
552.021 information that does not identify or tend to identify an individual or other
entity and that is subject to required public disclosure under Section 323.020(e).
This section protects specific examination, operating, or condition reports prepared or obtained by
agencies in regulating or supervising financial institutions or securities or information that indirectly
reveals the contents of such reports.600 Such reports typically disclose the financial status and
dealings of the institutions that file them. Section 552.112 does not protect general information
about the overall condition of an industry if the information does not identify particular institutions
under investigation or supervision.601 An entity must be a financial institution for its examination,
operating, or condition reports to be excepted by section 552.112; it is not sufficient that the entity
is regulated by an agency that regulates or supervises financial institutions.602 The attorney general
has stated that the term financial institution means any banking corporation or trust company,
building and loan association, governmental agency, insurance company, or related corporation,
partnership, foundation, or the other institutions engaged primarily in lending or investing funds.603
Notably, a Texas appeals court decision, Birnbaum v. Alliance of Am. Insurers,604 held that insurance
companies are not financial institutions under section 552.112, overruling the determination in
Open Records Decision No. 158 (1977) that insurance companies were financial institutions under
the statutory predecessor to the section. Section 552.112 is a permissive exception that a
600
See generally Open Records Decision Nos. 261 (1980), 29 (1974).
601
602
603
Open Records Decision No. 158 at 5 (1977); see also Open Records Decision No. 392 at 3 (1983).
604
Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App. Austin 1999, pet. denied).

118
Appendix 23
governmental body may waive at its discretion.605 Thus, section 552.112 only protects the interests
of a governmental body, rather than the interests of third parties.
The following open records decisions have considered whether information is excepted from
required public disclosure under section 552.112:
Open Records Decision No. 483 (1987) Texas Savings and Loan Department report
containing a general discussion of the condition of the industry that does not identify particular
institutions under investigation or supervision is not excepted from disclosure;
Open Records Decision No. 392 (1983) material collected by the Consumer Credit
Commissioner in an investigation of loan transactions was not protected by the statutory
predecessor to section 552.112 when the requested information did not consist of a detailed
description of the complete financial status of the company being investigated but rather
consisted of the records of the companys particular transactions with persons filing consumer
complaints;
Open Records Decision No. 261 (1980) form acknowledgment by bank board of directors that
Department of Banking examination report had been received is excepted from disclosure where
acknowledgment would reveal the conclusions reached by the department;
Open Records Decision No. 194 (1978) pawn shop license application that includes
information about applicants net assets to assess compliance with Texas Pawnshop Act is not
excepted from disclosure because such information does not qualify as an examination,
operating, or condition report;
Open Records Decision No. 187 (1978) property development plans submitted by a credit
union to the Credit Union Department were excepted from disclosure by the statutory
predecessor to section 552.112 because submission included detailed presentation of credit
unions conditions and operations and the particular proposed investment; and
Open Records Decision No. 130 (1976) investigative file of the enforcement division of the
State Securities Board is excepted from disclosure.
N. Section 552.113:
Information
Confidentiality of Geological or Geophysical
Section 552.113 makes confidential electric logs under Subchapter M, Chapter 91, of the Natural
Resources Code, and geological or geophysical information or data, including maps concerning
wells, except when filed in connection with an application or proceeding before an agency. This
exception also applies to geological, geophysical, and geochemical information, including electric
logs, filed with the General Land Office, and includes provisions for the expiration of confidentiality
of confidential material, as that term is defined, and the use of such material in administrative
proceedings before the General Land Office.
605
Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App. Austin 1999, pet. denied).

119
Appendix 23
The Eighty-third Legislature amended section 552.113 of the Government Code to provide as
follows:
(a)
Information is excepted from the requirements of Section 552.021 if it is:

(1) an electric log confidential under Subchapter M, Chapter 91, Natural Resources
Code;
(2) geological or geophysical information or data, including maps concerning wells,
except information filed in connection with an application or proceeding before
an agency; or
(3) confidential under Subsections (c) through (f).
(b)
Information that is shown to or examined by an employee of the General Land Office,

but not retained in the land office, is not considered to be filed with the land office.
(c)
In this section:
(1) Confidential material includes all well logs, geological, geophysical,
geochemical, and other similar data, including maps and other interpretations of
the material filed in the General Land Office:
(A) in connection with any administrative application or proceeding before the
land commissioner, the school land board, any board for lease, or the
commissioners or boards staff; or
(B) in compliance with the requirements of any law, rule, lease, or agreement.
(2) Electric logs has the same meaning as it has in Chapter 91, Natural Resources
Code.
(3) Administrative applications and administrative proceedings include
applications for pooling or unitization, review of shut-in royalty payments, review
of leases or other agreements to determine their validity, review of any plan of
operations, review of the obligation to drill offset wells, or an application to pay
compensatory royalty.
(d)
Confidential material, except electric logs, filed in the General Land Office on or
after September 1, 1985, is public information and is available to the public under
Section 552.021 on and after the later of:
(1) five years from the filing date of the confidential material; or
(2) one year from the expiration, termination, or forfeiture of the lease in connection
with which the confidential material was filed.

120
Appendix 23
(e)
Electric logs filed in the General Land Office on or after September 1, 1985, are
either public information or confidential material to the same extent and for the same
periods provided for the same logs by Chapter 91, Natural Resources Code. A person
may request that an electric log that has been filed in the General Land Office be
made confidential by filing with the land office a copy of the written request for
confidentiality made to the Railroad Commission of Texas for the same log.
(f)
The following are public information:

(1) electric logs filed in the General Land Office before September 1, 1985; and
(2) confidential material, except electric logs, filed in the General Land Office before
September 1, 1985, provided, that Subsection (d) governs the disclosure of that
confidential material filed in connection with a lease that is a valid and subsisting
lease on September 1, 1995.
606
(g)
Confidential material may be disclosed at any time if the person filing the material,
or the persons successor in interest in the lease in connection with which the
confidential material was filed, consents in writing to its release. A party consenting
to the disclosure of confidential material may restrict the manner of disclosure and
the person or persons to whom the disclosure may be made.
(h)
Notwithstanding the confidential nature of the material described in this section, the
material may be used by the General Land Office in the enforcement, by
administrative proceeding or litigation, of the laws governing the sale and lease of
public lands and minerals, the regulations of the land office, the school land board,
or of any board for lease, or the terms of any lease, pooling or unitization agreement,
or any other agreement or grant.
(i)
An administrative hearings officer may order that confidential material introduced

in an administrative proceeding remain confidential until the proceeding is finally
concluded, or for the period provided in Subsection (d), whichever is later.
(j)
Confidential material examined by an administrative hearings officer during the

course of an administrative proceeding for the purpose of determining its
admissibility as evidence shall not be considered to have been filed in the General
Land Office to the extent that the confidential material is not introduced into
evidence at the proceeding.
(k)
This section does not prevent a person from asserting that any confidential material
is exempt from disclosure as a trade secret or commercial information under
Section 552.110 or under any other basis permitted by law.606
Act of May 16, 2013, 83rd Leg., R.S., H.B. 878, 4, 5 (to be codified as an amendment to Govt Code 552.113).

121
Appendix 23
Open Records Decision No. 627 (1994) interpreted the predecessor to the current version of
section 552.113 as follows:
[S]ection 552.113 excepts from required public disclosure all geological or geophysical
information or data including maps concerning wells, unless the information is filed in
connection with an application or proceeding before an agency . . . . We interpret geological
or geophysical information as section 552.113(2) uses the term to refer only to geological and
geophysical information regarding the exploration or development of natural resources.
[Footnote omitted] Furthermore, we reaffirm our prior determination that section 552.113
protects only geological and geophysical information that is commercially valuable. See
Open Records Decision Nos. 504 (1988) at 2; 479 (1987) at 2. Thus, we conclude that
section 552.113(2) protects from public disclosure only (i) geological and geophysical
information regarding the exploration or development of natural resources that is (ii)
commercially valuable.607
The decision explained that the phrase information regarding the exploration or development of
natural resources signifies information indicating the presence or absence of natural resources in
a particular location, as well as information indicating the extent of a particular deposit or
accumulation.608
Open Records Decision No. 627 (1994) overruled Open Records Decision No. 504 (1988) to the
extent the two decisions are inconsistent. In Open Records Decision No. 504 (1988), the attorney
general had interpreted the statutory predecessor to section 552.113 of the Government Code to
require the application of a test similar to the test used at that time to determine whether the statutory
predecessor to section 552.110 protected commercial information (including trade secrets) from
required public disclosure. Under that test, commercial information was confidential for purposes
of the exemption if disclosure of the information was likely to have either of the following effects:
(1) to impair the governments ability to obtain necessary information in the future; or (2) to cause
substantial harm to the competitive position of the person from whom the information was
obtained.609
Following the issuance of Open Records Decision No. 504 (1988), the attorney general articulated
new tests for determining whether section 552.110 of the Government Code protects trade secret
information and commercial and financial information from required public disclosure.610 Thus,
Open Records Decision No. 627 (1994) re-examined the attorney generals reliance upon the former
tests for section 552.110 to determine the applicability of section 552.113. That decision noted that
section 552.113, as the legislature originally enacted it, differed from its federal counterpart611 in that
the statutory predecessor to section 552.113 excepted from its scope information filed in connection
with an application or proceeding before any agency.612 Thus, the state exception to required public
607
Open Records Decision No. 627 at 34 (1994) (footnote omitted).
608
Open Records Decision No. 627 at 4 n.4 (1994).
609
610
611
5 U.S.C. 552(b)(9).
612

122
Appendix 23
disclosure exempted a more limited class of information than did the federal exemption.613
Consequently, the decision determined that grafting the balancing test used to limit the scope of the
federal exemption to the plain language of section 552.113 was unnecessary.614 Since the current
version of section 552.113 took effect on September 1, 1995, there have been no published court
decisions interpreting the amended statute or the validity of Open Records Decision No. 627 (1994)
in light of the amendments to the statute.
The attorney general, however, has interpreted the term commercially valuable in a subsequent
decision. In Open Records Decision No. 669 (2000), the attorney general applied section 552.113
to digital mapping information supplied to the General Land Office by a third party. The specific
information at issue was information that the third party allowed to be disclosed to the public.615 The
attorney general held that the information was not protected under section 552.113 because the
information was publicly available and thus was not commercially valuable.616 Therefore, in order
to be commercially valuable for purposes of Open Records Decision No. 627 and section 552.113,
information must not be publicly available.617
When a governmental body believes requested information of a third party may be excepted
under this exception, the governmental body must notify the third party in accordance with
section 552.305. The notice the governmental body must send to the third party is found in Part Nine
of this Handbook.
O. Sections 552.026 and 552.114: Confidentiality of Student Records

The Public Information Act includes two provisions relating to student records, sections 552.026
and 552.114 of the Government Code.
1. Family Educational Rights and Privacy Act of 1974
Section 552.026 incorporates into the Texas Public Information Act the federal Family Educational
Rights and Privacy Act of 1974,618 also known as FERPA or the Buckley Amendment.619
FERPA governs the availability of student records held by educational institutions or agencies that
receive federal funds under programs administered by the federal government. It prohibits, in most
circumstances, the release of personally identifiable information contained in a students education
records without a parents written consent.620 It also gives parents a right to inspect the education
records of their children.621 If a student has reached age 18 or is attending an institution of
613
614
615
616
617
618
20 U.S.C. 1232g.
619
See Open Records Decision No. 72 (1975) (compliance with federal law was required before enactment of statutory
predecessor to Govt Code 552.026).
620
20 U.S.C. 1232g(b)(1).
621
20 U.S.C. 1232g(a)(1).

123
Appendix 23
post-secondary education, the rights established by FERPA attach to the student rather than to the
students parents.622 Education records for purposes of FERPA are records that contain
information directly related to a student and that are maintained by an educational institution or
agency.623
Information must be withheld from required public disclosure under FERPA only to the extent
reasonable and necessary to avoid personally identifying a particular student.624 Personally
identifying information is defined as including, but not limited to, the following information:
(a)
The students name;
(b)
The name of the students parent or other family members;
(c)
The address of the student or students family;
(d)
A personal identifier, such as the students social security number, student number, or
biometric record;
(e)
Other indirect identifiers, such as the students date of birth, place of birth, and mothers
maiden name;
(f)
Other information that, alone or in combination, is linked or linkable to a specific student

that would allow a reasonable person in the school community, who does not have
personal knowledge of the relevant circumstances to identify the student with reasonable
certainty; or
(g)
Information requested by a person who the educational agency or institution reasonably

believes knows the identity of the student to whom the education records relates.625
An educational institution or agency may, however, release directory information to the public if
the educational institution or agency complies with certain procedures.626 Directory information
includes, but is not limited to, the following information: the students name; address; telephone
listing; electronic mail address; photograph; date and place of birth; major field of study; grade level;
enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance;
participation in officially recognized activities and sports; weight and height of members of athletic
teams; degrees, honors, and awards received; and the most recent educational agency or institution
622
20 U.S.C. 1232g(d).
623
20 U.S.C. 1232g(a)(4)(A).
624
Open Records Decision Nos. 332 (1982), 206 (1978).
625
34 C.F.R. 99.3.
626
See 20 U.S.C. 1232g(a)(5)(B).

124
Appendix 23
attended.627 The attorney general has determined that marital status and expected date of graduation
also constitute directory information.628
University police department records concerning students previously were held to be education
records for the purposes of FERPA.629 However, FERPA was amended, effective July 23, 1992, to
provide that the term education records does not include records maintained by a law enforcement
unit of the educational agency or institution that were created by that law enforcement unit for the
purpose of law enforcement.630 On the basis of this provision, records created by a state university
campus police department are not excepted from required public disclosure by section 552.026 of
the Government Code.631
FERPA applies only to records at educational institutions or agencies receiving federal funds and
does not govern access to records in the custody of governmental bodies that are not educational
institutions or agencies.632 An educational agency or institution is any public or private agency
or institution that receives federal funds under an applicable program.633 Thus, an agency or
institution need not instruct students in order to qualify as an educational agency or institution under
FERPA. If education records are transferred by a school district or state institution of higher
education to a state administrative agency concerned with education, federal regulations provide that
the education records in the administrative agencys possession are subject to FERPA.634
If there is a conflict between the provisions of the state Public Information Act and FERPA, the
federal statute prevails.635 However, the attorney general has been informed by the Family Policy
Compliance Office of the United States Department of Education that parents rights to information
about their children under FERPA do not prevail over school districts rights to assert the attorneyclient and work product privileges.636 As a general rule, however, exceptions to disclosure under the
Public Information Act do not apply to a request by a student or parent for the students own
education records pursuant to FERPA.637
In Open Records Decision No. 634 (1995), the attorney general stated that an educational agency or
institution that seeks a ruling under the Public Information Act should, before submitting education
627
34 C.F.R. 99.3.
628
Open Records Decision No. 96 (1975); see also Open Records Decision Nos. 244 (1980) (student rosters public),
242 (1980) (student parking permit information public), 193 (1978) (report of accident insurance claims paid to
identifiable students not public).
629
630
20 U.S.C. 1232g(a)(4)(B)(ii).
631
Open Records Decision N o. 612 at 2 (1992) (campus police department records were not excepted by statutory
predecessor to Govt Code 552.101, incorporating FERPA, or statutory predecessor to Govt Code 552.114).
632
See Open Records Decision No. 390 at 3 (1983) (City of Fort W orth is not educational agency within FERPA).
633
20 U.S.C. 1232g(a)(3).
634
20 U.S.C. 1232g(b)(1)(E), (b)(4)(B); 34 C.F.R. 99.31, .33, .35.
635
636
Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dept of Educ., to Keith
B. Kyle (July 1999) (on file with the Open Records Division, Office of the Attorney General).
637

125
Appendix 23
records to the attorney general, either obtain parental consent to the disclosure of personally
identifiable nondirectory information in the records or edit the records to make sure that they contain
no personally identifiable nondirectory information. Subsequent correspondence from the United
States Department of Education advised that educational agencies and institutions may submit
personally identifiable information subject to FERPA to the attorney general for purposes of
obtaining rulings as to whether information contained therein must be withheld under FERPA or
state law.638 In 2006, however, the United States Department of Education Family Policy
Compliance Office informed the attorney general that FERPA does not permit state and local
educational authorities to disclose to the attorney general, without parental consent, unredacted,
personally identifiable information contained in education records for the purpose of our review in
the open records ruling process under the Public Information Act.639 Consequently, state and local
educational authorities that receive a request for education records from a member of the public
under the Public Information Act must not submit education records to the attorney general in
unredacted form, that is, in a form in which personally identifiable information is disclosed.640
Because the attorney general is prohibited from reviewing these education records to determine
whether appropriate redactions under FERPA have been made, the attorney general will not address
the applicability of FERPA to any records submitted as part of a request for decision. Such
determinations under FERPA must be made by the educational authority in possession of the
education records.641 Questions about FERPA should be directed to the following agency:
400 Maryland Ave., S.W.
Washington, D.C. 20202-5920
(202) 260-3887
P. Section 552.115: Confidentiality of Birth and Death Records

(a)
A birth or death record maintained by the bureau of vital statistics of the Texas
Department of Health642 or a local registration official is excepted from [required
public disclosure], except that:
638
See Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dept of Educ., to
David Anderson, Chief Counsel, Tex. Educ. Agency (April 29, 1998) (on file with the Open Records Division,
Office of the Attorney General).
639
This letter is available on the attorney generals website at: http://www.oag.state.tx.us/open/20060725usdoe.pdf
640
See 34 C.F.R. 99.3 (defining personally identifiable information).
641
In the future, if an educational authority does obtain parental consent to submit unredacted education records and
the educational authority seeks a ruling from the attorney general on the proper redaction of those education records
in compliance with FERPA, we will rule accordingly.
642
Act of Sept. 1, 2003, 78th Leg., R.S., ch. 198, 1.01, 2003 Tex. Gen. Laws 611 (Texas Department of Health is part
of Texas Department of State Health Services).

126
Appendix 23
(1) a birth record is public information and available to the public on and after the
75th anniversary of the date of birth as shown on the record filed with the bureau
of vital statistics or local registration official;
(2) a death record is public information and available to the public on and after the
25th anniversary of the date of death as shown on the record filed with the bureau
of vital statistics or local registration official;
(3) a general birth index or a general death index established or maintained by the
bureau of vital statistics or a local registration official is public information and
available to the public to the extent the index relates to a birth record or death
record that is public information and available to the public under Subdivision
(1) or (2);
(4) a summary birth index or a summary death index prepared or maintained by the
bureau of vital statistics or a local registration official is public information and
available to the public; and
(5) a birth or death record is available to the chief executive officer of a home-rule
municipality or the officers designee if:
(A) the record is used only to identify a property owner or other person to whom
the municipality is required to give notice when enforcing a state statute or
an ordinance;
(B) the municipality has exercised due diligence in the manner described by
Section 54.035(e), Local Government Code, to identify the person; and
(C) the officer or designee signs a confidentiality agreement that requires that:
(i)
the information not be disclosed outside the office of the officer or

designee, or within the office for a purpose other than the purpose
described by Paragraph (A);
(ii)
the information be labeled as confidential;
(iii) the information be kept securely; and

(iv) the number of copies made of the information or the notes taken from
the information that implicate the confidential nature of the information
be controlled, with all copies or notes that are not destroyed or returned
remaining confidential and subject to the confidentiality agreement.
(b)
Notwithstanding Subsection (a), a general birth index or a summary birth index is not
public information and is not available to the public if:

127
Appendix 23
(1) the fact of an adoption or paternity determination can be revealed by the index;
or
(2) the index contains specific identifying information relating to the parents of a
child who is the subject of an adoption placement.
(c)
Subsection (a)(1) does not apply to the microfilming agreement entered into by the
Genealogical Society of Utah, a nonprofit corporation organized under the laws of the
State of Utah, and the Archives and Information Services Division of the Texas State
Library and Archives Commission.
(d)
For the purposes of fulfilling the terms of the agreement in Subsection (c), the
Genealogical Society of Utah shall have access to birth records on and after the 50th
anniversary of the date of birth as shown on the record filed with the bureau of vital
statistics or local registration official, but such birth records shall not be made
available to the public until the 75th anniversary of the date of birth as shown on the
record.
Section 552.115 specifically applies to birth and death records of a local registration official as well
as to those of the Texas Department of State Health Services.643 This section does not apply to birth
or death records maintained by other governmental bodies.644 Until the time limits set out above
have passed, a birth or death record may be obtained from the Vital Statistics Unit (the Unit) of
the Texas Department of State Health Services only in accordance with chapter 192 of the Health
and Safety Code.645 While birth records over seventy-five years old and death records over
twenty-five years old are not excepted from disclosure under the Public Information Act, a local
registrar of the Unit646 is required by title 3 of the Health and Safety Code and rules promulgated
thereunder to deny physical access to these records and to provide copies of them for a certain fee.647
These specific provisions prevail over the more general provisions in the Act regarding inspection
and copying of public records.648
Section 552.115 specifically makes public a summary birth index and summary death index and also
makes public a general birth index or general death index to the extent that it relates to birth or death
records that would be public information under the section.649 However, a general or summary birth
index is not public information if it reveals the fact of an adoption or paternity determination or
contains identifying information relating to the parents of a child who is the subject of an adoption
placement.650 Although the Act contains no language that defines the categories of information that
comprise each type of index, the Texas Department of State Health Services has promulgated
643
644
645
See generally Open Records Decision No. 596 (1991) (regarding availability of adoption records).
646
See Health & Safety Code 191.022.
647
See Attorney General Opinion DM-146 at 2 (1992); see also Attorney General Opinion MW -163 (1980).
648
Attorney General Opinion DM-146 at 5 (1992).
649
Govt Code 552.115(a)(3), (4).
650

128
Appendix 23
administrative rules that define each type of index.651 In pertinent part, the current rule, which took
effect August 11, 2013, provides as follows:
(b)
Birth indexes.
(1) General birth indexes maintained or established by the Vital Statistics Unit or a
local registration official shall be prepared by event year, in alphabetical order
by surname of the registrant, followed by any given names or initials, the date of
the event, the county of occurrence, the state or local file number, the name of the
father, the maiden name of the mother, and sex of the registrant.
(2) A general birth index is public information and available to the public to the
extent the index relates to a birth record that is public on or after the 75th
anniversary of the date of birth as shown on the record unless the fact of an
adoption or paternity determination can be revealed or broken or if the index
contains specific identifying information relating to the parents of the child who
is the subject of an adoption placement. The Vital Statistics Unit and local
registration officials shall expunge or delete any state or local file numbers
included in any general birth index made available to the public because such file
numbers may be used to discover information concerning specific adoptions,
paternity determinations, or the identity of the parents of children who are the
subjects of adoption placements.
(3) A summary birth index maintained or established by the Vital Statistics Unit or
a local registration official shall be prepared by event year, in alphabetical order
the event, the county of occurrence, and sex of the registrant. A summary birth
index or any listings of birth records are not available to the public for searching
or inspection if the fact of adoption or paternity determination can be revealed
from specific identifying information.
(c)
Death indexes.
(1) A general death index maintained or established by the Vital Statistics Unit or a
local registration official shall be prepared by event year, in alphabetical order
by surname of the registrant, followed by any given names or initials; the date of
the event; the county of occurrence; the registrants social security number, sex,
and marital status; the name of the registrants spouse, if applicable; and the state
or local file number.
651
Absent specific authority, a governmental body may not generally promulgate a rule that makes information
confidential so as to except the information from required public disclosure pursuant to section 552.101 of the Act.
See Govt Code 552.101; see also Open Records Decision Nos. 484 (1987), 392 (1983), 216 (1978). In the instant
case, however, the attorney general has found the predecessor agency to the T exas Department of State Health
Services has been granted specific authority by the legislature to promulgate administrative rules that dictate the
public availability of information contained in and derived from vital records. See Open Records Decision
No. 596 (1991).

129
Appendix 23
(2) A general death index is public information and available to the public to the
extent the index relates to a death record that is public on or after the 25th
anniversary of the date of death as shown on the record.
(3) A summary death index maintained or established by the Vital Statistics Unit or
a local registration official shall be prepared by event year, in alphabetical order
the event, the county of occurrence, and sex of the registrant.652
Thus, the term summary birth index as used in section 552.115 refers to a list in alphabetical order
by surname of the child, and its contents are limited to the childs name, date of birth, county of
birth, and sex. Additionally, the term general birth index refers to a list containing only those
categories of information that comprise a summary birth index, with the additional categories of
the file number and the parents names. The term summary death index as used in section 552.115
refers to a list in alphabetical order by surname of the deceased, and its contents are limited to the
deceaseds name or initials, date of death, county of death, and sex. Furthermore, the term general
death index refers to the same categories of information that comprise a summary death index,
with the additional categories of marital status, name of the deceaseds spouse, if applicable, and file
number.
Section 552.115 also provides that a birth or death record may be made available in certain
circumstances to the chief executive officer of a home rule municipality to aid in the identification
of a property owner.653
Q. Section 552.116: Audit Working Papers

Section 552.116 provides as follows:
(a)
An audit working paper of an audit of the state auditor or the auditor of a state
agency, an institution of higher education as defined by Section 61.003, Education
Code, a county, a municipality, a school district, a hospital district, or a joint board
operating under Section 22.074, Transportation Code, including any audit relating
to the criminal history background check of a public school employee, is excepted
from the requirements of Section 552.021. If information in an audit working paper
is also maintained in another record, that other record is not excepted from the
requirements of Section 552.021 by this section.
(b)
In this section:
(1) Audit means an audit authorized or required by a statute of this state or the
United States, the charter or an ordinance of a municipality, an order of the
commissioners court of a county, the bylaws adopted by or other action of the
governing board of a hospital district, a resolution or other action of a board of
652
25 T.A.C. 181.23(b)(c).
653
Govt Code 552.115(a)(5).

130
Appendix 23
trustees of a school district, including an audit by the district relating to the

criminal history background check of a public school employee, or a resolution
or other action of a joint board described by Subsection (a) and includes an
investigation.
(2) Audit working paper includes all information, documentary or otherwise,
prepared or maintained in conducting an audit or preparing an audit report,
including:
(A) intra-agency and interagency communications; and
(B) drafts of the audit report or portions of those drafts.
Audit working paper is defined as including all information prepared or maintained in conducting
an audit or preparing an audit report including intra-agency or interagency communications and
drafts of audit reports.654 A governmental body that invokes section 552.116 must demonstrate the
audit working papers are from an audit authorized or required by an authority mentioned in
section 552.116(b)(1) and must identify that authority. To the extent that information in an
audit working paper is also maintained in another record, such other record is not excepted by
section 552.116, although such other record may be withheld from public disclosure under the Acts
other exceptions.655 There are no cases or formal opinions interpreting the current version of
section 552.116.
R. Section 552.117: Confidentiality of Certain Addresses, Telephone

Numbers, Social Security Numbers, and Personal Family Information
The Eighty-third Legislature amended section 552.117 of the Government Code to except from
required public disclosure:
(a)
[I]nformation that relates to the home address, home telephone number, emergency
contact information, or social security number of the following person or that reveals
whether the person has family members:
(1) a current or former official or employee of a governmental body, except as
otherwise provided by Section 552.024;
(2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a
security officer commissioned under Section 51.212, Education Code, regardless
of whether the officer complies with Section 552.024 or 552.1175, as applicable;
(3) a current or former employee of the Texas Department of Criminal Justice or of
the predecessor in function of the department or any division of the department,
654
655

131
Appendix 23
regardless of whether the current or former employee complies with Section

552.1175;
(4) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or other
law, a reserve law enforcement officer, a commissioned deputy game warden, or
a corrections officer in a municipal, county, or state penal institution in this state
who was killed in the line of duty, regardless of whether the deceased complied
with Section 552.024 or 552.1175;
(5) a commissioned security officer as defined by Section 1702.002, Occupations
Code, regardless of whether the officer complies with Section 552.024 or 552.1175,
as applicable;
(6) an officer or employee of a community supervision and corrections department
established under Chapter 76 who performs a duty described by Section
76.004(b), regardless of whether the officer or employee complies with Section
552.024 or 552.1175;
(7) a current or former employee of the office of the attorney general who is or was
assigned to a division of that office the duties of which involve law enforcement,
regardless of whether the current or former employee complies with Section
552.024 or 552.1175;
(8) a current or former employee of the Texas Juvenile Justice Department or of the
predecessors in function of the department, regardless of whether the current or
former employee complies with Section 552.1175;
(9) a juvenile probation or supervision officer certified by the Texas Juvenile Justice
Department, or the predecessors in function of the department, under Title 12,
Human Resources Code; or
(10) employees of a juvenile justice program or facility, as those terms are defined
by Section 261.405, Family Code.656
(b)
All documents filed with a county clerk and all documents filed with a district clerk
are exempt from this section.
Generally, a governmental body may not invoke section 552.117 as a basis for withholding an
officials or an employees home address and telephone number if another law, such as a state statute
expressly authorizing child support enforcement officials to obtain information to locate absent
parents, requires the release of such information.657 Because the subsections of section 552.117 deal
with different categories of officials and employees and differ in their application, they are discussed
separately below.
656
Act of May 26, 2013, 83rd Leg., R.S., H.B. 2733, 2 (to be codified at Govt Code 552.117(a)(8)(10)).
657

132
Appendix 23
1. Subsections (a)(1), (9), and (10): Public Officials and Employees, Juvenile Probation, or
Supervision Officers, Juvenile Justice Program or Facility Employees
Section 552.117, subsections (a)(1), (a)(9), and (a)(10) must be read together with section 552.024,
which was amended by the Eighty-third Legislature and provides as follows:
(a)
Except as provided by Subsection (a-1), each employee or official of a governmental

body and each former employee or official of a governmental body shall choose
whether to allow public access to the information in the custody of the governmental
body that relates to the persons home address, home telephone number, emergency
contact information, or social security number, or that reveals whether the person has
family members.658
(a-1) A school district may not require an employee or former employee of the district to
choose whether to allow public access to the employees or former employees social
security number.659
(b)
Each employee and official and each former employee and official shall state that
persons choice under Subsection (a) to the main personnel officer of the
governmental body in a signed writing not later than the 14th day after the date on
which:
(1) the employee begins employment with the governmental body;
(2) the official is elected or appointed; or
(3) the former employee or official ends service with the governmental body.
(c)
If the employee or official or former employee or official chooses not to allow public
access to the information:
(1) the information is protected under Subchapter C; and
(2) the governmental body may redact the information from any information the
governmental body discloses under Section 552.021 without the necessity of
requesting a decision from the attorney general under Subchapter G.
(c-1) If, under Subsection (c)(2), a governmental body redacts or withholds information
without requesting a decision from the attorney general about whether the
information may be redacted or withheld, the requestor is entitled to seek a decision
from the attorney general about the matter. The attorney general by rule shall
establish procedures and deadlines for receiving information necessary to decide the
matter and briefs from the requestor, the governmental body, and any other
658
Act of May 15, 2013, 83rd Leg., R.S., H.B. 2961, 1 (to be codified as an amendment to Govt Code 552.024).
659

133
Appendix 23
interested person. The attorney general shall promptly render a decision requested
under this subsection, determining whether the redacted or withheld information was
excepted from required disclosure to the requestor, not later than the 45th business
day after the date the attorney general received the request for a decision under this
subsection. The attorney general shall issue a written decision on the matter and
provide a copy of the decision to the requestor, the governmental body, and any
interested person who submitted necessary information or a brief to the attorney
general about the matter. The requestor or the governmental body may appeal a
decision of the attorney general under this subsection to a Travis County district
court.
(c-2) A governmental body that redacts or withholds information under Subsection (c)(2)
shall provide the following information to the requestor on a form prescribed by the
attorney general:
(1) a description of the redacted or withheld information;
(2) a citation to this section; and
(3) instructions regarding how the requestor may seek a decision from the attorney
general regarding whether the redacted or withheld information is excepted from
required disclosure.
(d)
If an employee or official or a former employee or official fails to state the persons

choice within the period established by this section, the information is subject to
public access.
(e)
An employee or official or former employee or official of a governmental body who

wishes to close or open public access to the information may request in writing that
the main personnel officer of the governmental body close or open access.
(f)
This section does not apply to a person to whom Section 552.1175 applies.
Subsection (a)(1) pertains to a current or former official or employee of a governmental body.

Subsection (a)(9) pertains to a juvenile probation or supervision officer certified by the Texas
Juvenile Justice Department under Title 12 of the Human Resources Code. Subsection (a)(10)
pertains to an employee of a juvenile justice program or facility as defined by section 261.405 of the
Family Code. To obtain the protection of section 552.117(a), public employees and officials,
certified juvenile probation or supervision officers, and employees of a juvenile justice program or
facility must comply with section 552.024(c). If these individuals elect to withhold their home
addresses, home telephone numbers, emergency contact information, social security numbers, and
information that reveals whether they have family members, the governmental body may redact such
information without the necessity of requesting an attorney general decision. If a governmental body
chooses to redact this information without requesting an attorney general decision, it must notify the
requestor as prescribed section 552.024(c-2) on the form created by the attorney general. The notice
must include instructions regarding how the requestor may seek an attorney generals review of the
governmental bodys redactions. The form for notifying the requestor is published on the attorney
134
Appendix 23
generals website. The legislation enacting these provisions authorized the attorney general to
promulgate rules establishing procedures for review under section 552.024(c-1). These rules were
promulgated in Subchapter B of chapter 63 of title 1 of the Texas Administrative Code.660 These
rules are available on the attorney generals website and in Part Four of this Handbook.
In conjunction with the addition of section 552.024(a-1), the Eighty-third Legislature amended
section 552.147 of the Government Code to make social security numbers of school district
employees confidential.661 Thus, the social security number of an employee of a school district is
confidential in the custody of the school district even if the employee does not elect confidentiality
under section 552.024.
Significant decisions of the attorney general regarding sections 552.024 and 552.117 prior to the
recent amendments include the following:
Open Records Decision No. 622 (1994) statutory predecessor to section 552.117(a)(1) excepts
employees former home addresses and telephone numbers from required public disclosure;
Open Records Decision No. 530 (1989) addressing the time at which an employee may
exercise the options under the statutory predecessor to section 552.024;
Open Records Decision No. 506 (1988) these provisions do not apply to telephone numbers
of mobile telephones that are provided to employees by a governmental body for work purposes;
and
Open Records Decision No. 455 (1987) statutory predecessor to section 552.117(a)(1)
continued to except an employees home address and telephone number from required public
disclosure after the employment relationship ends; it did not except, as a general rule, applicants
or other private citizens home addresses and telephone numbers.
In addition, the attorney general has determined in informal letter rulings that section 552.117 can
apply to personal cellular telephone numbers of government employees as well as telephone numbers
that provide access to personal home facsimile machines of government employees.662 The attorney
general has also determined that section 552.117 does not protect a post office box number.663
660
See 1 T.A.C. 63.11.16.
661
662
663
See Open Records Decision No. 622 at 6 (1994) (legislative history makes clear that purpose of section 552.117
is to protect public employees from being harassed at home) (citing House Comm. on State Affairs, Bill Analysis,
H.B. 1979, 69th Leg. (1985) (emphasis added)).

135
Appendix 23
2. Subsections (a)(2), (3), (4), (5), (6), (7), and (8): Peace Officers, Texas Department of
Criminal Justice Employees, Community Supervision and Corrections Department
Personnel, Certain Law Enforcement Personnel of the Office of the Attorney General, and
Texas Juvenile Justice Department Employees
Subsections (a)(2) and (a)(4) protect information pertaining to peace officers as defined by
article 2.12 of the Code of Criminal Procedure. Subsection (a)(2) also protects information relating
to campus security personnel employed and commissioned by the governing bodies of private
institutions of higher education pursuant to section 51.212 of the Education Code. Subsection (a)(3)
protects information relating to current or former employees of the Texas Department of Criminal
Justice. Subsection (a)(4) protects such information pertaining to peace officers and other
enumerated law enforcement personnel if they were killed in the line of duty. Subsection (a)(5)
protects information related to commissioned security officers. Subsection (a)(6) protects
information of officers and employees of community supervision and corrections departments
established under chapter 76 of the Government Code. Subsection (a)(7) protects information of
employees assigned to a law enforcement division of the Office of the Attorney General.
Subsection (a)(8) protects information of employees of the Texas Juvenile Justice Department or of
predecessors in function of the department.
As noted above, to obtain the protection of section 552.117, subsections (a)(1), (9), and (10), public
employees, officials, certified juvenile probation or suspension officers, and employees of a juvenile
justice program or facility must comply with the provisions of section 552.024. No action is
necessary, however, on the part of the personnel listed in subsections (a)(2), (3), (4), (5), (6), (7),
and (8). Additionally, while subsection (a)(1) does not protect the home addresses, telephone
numbers, emergency contact information, social security numbers, and family information of
applicants for public employment,664 subsection (a)(2) protects this information about peace officers
who apply for peace officer positions in their department.665
In Open Records Decision No. 670 (2001), the attorney general determined that all governmental
bodies may withhold the home address, home telephone number, personal cellular phone number,
personal pager number, social security number, and information that reveals whether the individual
has family members, of any individual who meets the definition of peace officer set forth in
article 2.12 of the Texas Code of Criminal Procedure or security officer in section 51.212 of the
Texas Education Code, without the necessity of requesting an attorney general decision as to whether
the exception under section 552.117(a)(2) applies. This decision may be relied on as a previous
determination for the listed information.
664
665

136
Appendix 23
S. Section 552.1175: Confidentiality of Certain Identifying Information of

Peace Officers, County Jailers, Security Officers, Employees of the Texas
Department of Criminal Justice or a Prosecutors Office, and Federal and
State Judges666
Section 552.1175: Confidentiality of Certain Personal Information of Peace
Officers, County Jailers, Security Officers, and Employees of Certain
Criminal or Juvenile Justice Agencies or Offices667
The Eighty-third Legislature passed two different bills, House Bills 1632 and 2733, amending
section 552.1175.
Section 552.1175 provides as follows:
(a)
This section applies only to:

(1) peace officers as defined by Article 2.12, Code of Criminal Procedure;
(2) county jailers as defined by Section 1701.001, Occupations Code;
(3) current or former employees of the Texas Department of Criminal Justice or of
the predecessor in function of the department or any division of the department;
(4) commissioned security officers as defined by Section 1702.002, Occupations Code;
(5) employees of a district attorney, criminal district attorney, or county or municipal
attorney whose jurisdiction includes any criminal law or child protective services
matters;
(6) officers and employees of a community supervision and corrections department
established under Chapter 76 who perform a duty described by Section 76.004(b);
(7) criminal investigators of the United States as described by Article 2.122(a), Code
of Criminal Procedure;
(8) police officers and inspectors of the United States Federal Protective Service;
(9) current and former employees of the office of the attorney general who are or
were assigned to a division of that office the duties of which involve law
enforcement;
666
667
Act of M ay 26, 2013, 83rd Leg., R.S., H.B. 2733, 3 (to be codified as an amendment to Govt Code 552.1175).

137
Appendix 23
(10) federal judges and state judges as defined by Section 13.0021, Election Code.668
(10) juvenile probation and detention officers certified by the Texas Juvenile Justice
Human Resources Code;
(11) employees of a juvenile justice program or facility, as those terms are defined
by Section 261.405, Family Code; and
(12) current or former employees of the Texas Juvenile Justice Department or the
predecessors in function of the department.669
(b)
Information that relates to the home address, home telephone number, emergency
contact information, date of birth, or social security number of an individual to whom
this section applies, or that reveals whether the individual has family members is
confidential and may not be disclosed to the public under this chapter if the
individual to whom the information relates:670
(1) chooses to restrict public access to the information; and
(2) notifies the governmental body of the individuals choice on a form provided by
the governmental body, accompanied by evidence of the individuals status.
(c)
A choice made under Subsection (b) remains valid until rescinded in writing by the
individual.
(d)
This section does not apply to information in the tax appraisal records of an appraisal
district to which Section 25.025, Tax Code, applies.
(e)
(f)
A governmental body may redact information that must be withheld under

Subsection (b) from any information the governmental body discloses under
Section 552.021 without the necessity of requesting a decision from the attorney
general under Subchapter G.
(g)
If, under Subsection (f), a governmental body redacts or withholds information

668
Act of May 26, 2013, 83rd Leg., R.S., H.B. 1632, 3 (to be codified as Govt Code 552.1175(a)(10)).
669
Act of May 26, 2013, 83rd Leg., R.S., H.B. 2733, 4 (to be codified as Govt Code 552.1175(a)(10) - (12)).
670
Act of May 26, 2013, 83rd Leg., R.S., H .B. 1632, 3 (to be codified as an amendment to Govt Code
552.1175(b)).

138
Appendix 23
court.
(h)
A governmental body that redacts or withholds information under Subsection (f)

attorney general:
Section 552.1175 excepts from public disclosure a listed persons home address, home telephone
number, emergency contact information, social security number, and family member information.
The Eighty-third Legislature amended section 552.1175(b) to add date of birth to the types of
information a listed person may elect to withhold from disclosure.
The attorney general has stated in numerous informal letter rulings that the protection of section
552.117 only applies to information a governmental body holds in its capacity as an employer.671
On the other hand, section 552.1175 affords the listed persons the opportunity to withhold personal
information contained in records maintained by any governmental body in any capacity.672 However,
these individuals may not elect to withhold personal information contained in records maintained
by county and district clerks or tax appraisal records of an appraisal district subject to section 25.025
of the Tax Code.673
In Open Records Decision No. 678 (2003), the attorney general determined that notification provided
to a governmental body under section 552.1175 imparts confidentiality to information only in the
possession of the notified governmental body.674 If the information is transferred to another
671
672
See, e.g., Open Records Letter No. 2002-6335 (2002).
673
Govt Code 552.1175(d)(e).
674

139
Appendix 23
governmental body, the individual must provide a separate notification to the receiving governmental
body in order for the information in its hands to remain confidential.675
Also, unlike the requirement under section 552.117(a)(1) that an election to keep information
confidential be made before a governmental body receives the request for information,676 an election
under section 552.1175 can be made after a governmental bodys receipt of the request for
information.
Subsection (f) allows a governmental body to redact without the necessity of requesting an attorney
general decision the home address, home telephone number, emergency contact information, date
of birth, social security number, and family member information of a person described in
section 552.1175(a). Subsection (h) states that if a governmental body redacts in accordance with
subsection (f), it must provide the requestor with certain information on the form prescribed by the
attorney general, including instructions regarding how the requestor may seek an attorney general
review of the governmental bodys redactions. The form for notifying the requestor is located on
the attorney generals website. The legislation enacting these provisions authorized the attorney
general to promulgate rules establishing procedures for its review under section 552.1175(g). These
rules are available on the attorney generals website and in Part Four of this Handbook.677 The
Eighty-third Legislature extended the protection of section 552.1175 to juvenile probation, detention
officers, and current or former employees of the Texas Juvenile Justice Department; employees of
a juvenile justice program or facility; and federal and state judges as defined by section 13.0021 of
the Election Code.
T. Section 552.1176: Confidentiality of Certain Information Maintained by

State Bar
Section 552.1176 to the Government Code provides as follows:
(a)
Information that relates to the home address, home telephone number, electronic mail
address, social security number, or date of birth of a person licensed to practice law
in this state that is maintained under Chapter 81 is confidential and may not be
disclosed to the public under this chapter if the person to whom the information
relates:
(2) notifies the State Bar of Texas of the persons choice, in writing or electronically,
on a form provided by the state bar.
(b)
A choice made under Subsection (a) remains valid until rescinded in writing or
electronically by the person.
675
676
677
See 1 T.A.C. 63.11.16.

140
Appendix 23
(c)
The protections of section 552.1176 only apply to records maintained by the State Bar.678 There are
no cases or formal opinions interpreting this exception.
U. Section 552.118:
Information
Confidentiality of Official Prescription Program
(1)
information on or derived from an official prescription form or electronic

prescription record filed with the director of the Department of Public Safety under
Section 481.075, Health and Safety Code; or
(2)
other information collected under Section 481.075 of that code.
Under the Official Prescription Program, health practitioners who prescribe certain controlled
substances must record certain information about the prescription on the official form, including the
name, address, and date of birth or age of the person for whom the controlled substance is
prescribed.679 The dispensing pharmacist is required to complete the form and provide a copy to the
Texas Department of Public Safety.680 Section 481.076 of the Health and Safety Code provides that
the department may release this information only to certain parties, including state investigators
charged with investigating health professionals or a law enforcement or prosecutorial official
charged with investigating or enforcing laws governing illicit drugs.681 Under section 552.118,
copies of the prescription forms filed with the department, any information derived from the forms,
and any other information collected under section 481.075 of the Health and Safety Code, are
excepted from public disclosure.
V. Section 552.119: Confidentiality of Certain Photographs of Peace Officers

(a)
A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal
Procedure, the release of which would endanger the life or physical safety of the
officer, is excepted from the requirements of Section 552.021 unless:
(1) the officer is under indictment or charged with an offense by information;
(2) the officer is a party in a civil service hearing or a case in arbitration; or
678
679
Health & Safety Code 481.075(a)(e).
680
Health & Safety Code 481.075(i)(3).
681
Health & Safety Code 481.076.

141
Appendix 23
(3) the photograph is introduced as evidence in a judicial proceeding.

(b)
A photograph excepted from disclosure under Subsection (a) may be made public
only if the peace officer gives written consent to the disclosure.
In Open Records Decision No. 502 (1988), the attorney general held that there need not be a
threshold determination that release of a photograph would endanger an officer before the statutory
predecessor to section 552.119(a) could be invoked.682 However, in 2003, the attorney general
re-evaluated its interpretation of this provision and determined that, in order to withhold a peace
officers or security officers photograph under section 552.119, a governmental body must
demonstrate that release of the photograph would endanger the life or physical safety of the officer.683
Under section 552.119, a photograph of a peace officer cannot be withheld if (1) the officer is under
indictment or charged with an offense by information; (2) the officer is a party in a civil service
hearing or a case in arbitration; (3) the photograph is introduced as evidence in a judicial proceeding;
or (4) the officer gives written consent to the disclosure. Furthermore, in Open Records Decision
No. 536 (1989), the attorney general concluded that the statutory predecessor to section 552.119 did
not apply to photographs of officers who are no longer living.684 This opinion reasoned that the
section was inapplicable after an officers death because its purpose was to protect peace officers
from life-threatening harassment and to ensure this protection would be effective by granting the
discretionary authority to release the photograph only to the subject of the photograph.685 Protecting
the photographs of deceased officers would not serve this purpose.686
W.
Section 552.120: Confidentiality of Certain Rare Books and Original

Manuscripts
A rare book or original manuscript that was not created or maintained in the conduct of
official business of a governmental body and that is held by a private or public archival
and manuscript repository for the purpose of historical research . . . .
The attorney general has not issued an open records decision on this provision. A similar provision
applicable to state institutions of higher education is found in the Education Code:
Rare books, original manuscripts, personal papers, unpublished letters, and audio and
video tapes held by an institution of higher education for the purposes of historical
research are confidential, and the institution may restrict access by the public to those
682
683
Open Records Letter Nos. 2003-8009 (2003), 2003-8002 (2003).
684
685
686

142
Appendix 23
materials to protect the actual or potential value of the materials and the privacy of the
donors.687
X. Section 552.121: Confidentiality of Certain Documents Held for

Historical Research
An oral history interview, personal paper, unpublished letter, or organizational record of
a nongovernmental entity that was not created or maintained in the conduct of official
business of a governmental body and that is held by a private or public archival and
manuscript repository for the purpose of historical research . . . to the extent that the
archival and manuscript repository and the donor of the interview, paper, letter, or record
agree to limit disclosure of the item.
The attorney general has not issued an open records decision on this provision. The Education Code
sets out a similar provision applicable to institutions of higher education. It states as follows:
An oral interview that is obtained for historical purposes by an agreement of
confidentiality between an interviewee and a state institution of higher education is not
public information. The interview becomes public information when the conditions of the
agreement of confidentiality have been met.688
An attorney general opinion requested by a committee of the legislature that enacted section
51.910(a) states that the Public Information Act prevents an institution of higher education from
agreeing to keep oral history information confidential unless the institution has specific authority
under law to make such agreements.689
Y. Section 552.122: Test Items

(a)
A test item developed by an educational institution that is funded wholly or in part

by state revenue . . . [; and]
(b)
A test item developed by a licensing agency or governmental body . . . .
The attorney general considered the scope of the phrase test items in Open Records Decision
No. 626 (1994). That decision considered whether employee evaluations and records used for
determining promotions were test items under section 552.122(b). Test item was defined as
any standard means by which an individuals or groups knowledge or ability in a particular area
687
Educ. Code 51.910(b).
688
Educ. Code 51.910(a).
689
Attorney General Opinion JM-37 at 2 (1983).

143
Appendix 23
is evaluated.690 The opinion held that in this instance the evaluations of the applicant for promotion
and the answers to questions asked of the applicant by the promotion board in evaluating the
applicant were not test items and that such a determination under section 552.122 had to be made
on a case-by-case basis.691
Z.
Section 552.123: Confidentiality of Name of Applicant for Chief

Executive Officer of Institution of Higher Education
The name of an applicant for the position of chief executive officer of an institution of
higher education, and other information that would tend to identify the applicant, . . . ,
except that the governing body of the institution must give public notice of the name or
names of the finalists being considered for the position at least 21 days before the date of
the meeting at which final action or vote is to be taken on the employment of the person.
Thus, section 552.123 expressly permits the withholding of any identifying information about
candidates, not just their names.692 Before the addition of the statutory predecessor to section
552.123, the names of all persons being considered for public positions were available under the
Public Information Act.693 The addition of this section changed the law only in respect to applicants
for the position of university president.694 The exception protects the identities of all applicants for
the position of university president, whether they apply on their own initiative or are nominated.695
Section 552.123 does not protect the names of finalists for the university president position.
AA.
Section 552.1235: Confidentiality of Identity of Private Donor to

Institution of Higher Education

(a)
The name or other information that would tend to disclose the identity of a person,
other than a governmental body, who makes a gift, grant, or donation of money or
property to an institution of higher education or to another person with the intent
that the money or property be transferred to an institution of higher education is
excepted from the requirements of Section 552.021.
690
691
692
Govt Code 552.123; see also Open Records Decision No. 540 at 34 (1990) (construing statutory predecessor
to Govt Code 552.123).
693
See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 551 (Tex. App. Austin 1983, writ refd n.r.e.);
694
See Open Records Decision No. 585 (1991) (availability of names of applicants for position of city manager).
695

144
Appendix 23
(b)
Subsection (a) does not except from required disclosure other information relating
to gifts, grants, and donations described by Subsection (a), including the amount or
value of an individual gift, grant, or donation.
(c)
In this section, institution of higher education has the meaning assigned by

Section 61.003, Education Code.
There are no cases or formal opinions interpreting this exception. However, in an informal letter
ruling, the attorney general interpreted the term person, as used in this exception, to include a
corporation, organization, government or governmental subdivision or agency, business trust, estate,
trust, partnership, association, and any other legal entity.696
BB.
Section 552.124: Confidentiality of Records of Library or Library

System

(a)
A record of a library or library system, supported in whole or in part by public

funds, that identifies or serves to identify a person who requested, obtained, or used
a library material or service is excepted from the requirements of Section 552.021
unless the record is disclosed:
(1) because the library or library system determines that disclosure is reasonably
necessary for the operation of the library or library system and the record is not
confidential under other state or federal law;
(2) under Section 552.023; or
(3) to a law enforcement agency or a prosecutor under a court order or subpoena
obtained after a showing to a district court that:
(1) disclosure of the record is necessary to protect the public safety; or
(2) the record is evidence of an offense or constitutes evidence that a particular
person committed an offense.
(b)
A record of a library or library system that is excepted from required disclosure

under this section is confidential.
The legislative history suggests that the purpose of this section is to codify, clarify, and extend a
prior decision of the attorney general.697 This section protects the identity of the individual library
696
Open Records Letter No. 2003-8748 (2003) (citing to Govt Code 311.005(2)).
697
See Senate Comm. on State Affairs, Bill Analysis, S.B. 360, 73rd Leg., R.S. (1993); Open Records Decision No.
100 (1975) (identity of library user in connection with library materials he or she has reviewed was protected from
public disclosure under statutory predecessor to Govt Code 552.101).

145
Appendix 23
user while allowing law enforcement officials access to such information by court order or subpoena.
An individual has a special right of access under section 552.023 to library records that relate to that
individual. There are no cases or formal opinions interpreting this exception. However, in an
informal ruling, the attorney general interpreted section 552.124 to except from disclosure any
information that specifically identifies library patrons.698 In a separate letter ruling, the attorney
general determined that section 552.124 does not except from disclosure information identifying
library employees or other persons not requesting, obtaining, or using a library material or service.699
CC.
Section 552.125: Certain Audits

Any documents or information privileged under the Texas Environmental, Health, and
Safety Audit Privilege Act are excepted from the requirements of Section 552.021.
Information considered privileged under the Texas Environmental, Health, and Safety Audit
Privilege Act includes audit reports.700 Section 4(a) of article 4447cc of the Revised Civil Statutes
describes an audit report as a report that includes each document and communication . . . produced
from an environmental or health and safety audit.701 An environmental or health and safety audit
is defined under section 3(a)(4) of article 4447cc as:
a systematic voluntary evaluation, review, or assessment of compliance with environmental
or health and safety laws or with any permit issued under an environmental or health and
safety law conducted by an owner or operator, an employee of the owner or operator, a
person, including an employee or independent contractor of the person, that is considering
the acquisition of a regulated facility or operation, or an independent contractor of:
(A) a . . . facility or operation [regulated under an environmental or health and safety
law]; or
(B) an activity at a . . . facility or operation [regulated under an environmental or health
and safety law].702
There are no cases or formal opinions interpreting section 552.125.
698
699
700
Tex. Rev. Civ. Stat. art. 4447cc, 5.
701
Tex. Rev. Civ. Stat. art. 4447cc, 4(a).
702
Tex. Rev. Civ. Stat. art. 4447cc, 3(a)(4).

146
Appendix 23
DD.
Section 552.126:
Confidentiality of Name of Applicant for
Superintendent of Public School District

The name of an applicant for the position of superintendent of a public school district is
excepted from the requirements of Section 552.021, except that the board of trustees must
give public notice of the name or names of the finalists being considered for the position
at least 21 days before the date of the meeting at which a final action or vote is to be taken
on the employment of the person.
There are no cases or formal opinions interpreting this exception. However, in an informal ruling,
the attorney general determined section 552.126 protects all identifying information about
superintendent applicants, not just their names.703 Section 552.126 does not protect the names of the
finalists for a superintendent position.
EE.
Section 552.127: Confidentiality of Personal Information Relating to

Participants in Neighborhood Crime Watch Organization

(a)
Information is excepted from [required public disclosure] if the information identifies

a person as a participant in a neighborhood crime watch organization and relates to
the name, home address, business address, home telephone number, or business
telephone number of the person.
(b)
In this section, neighborhood crime watch organization means a group of residents

of a neighborhood or part of a neighborhood that is formed in affiliation or
association with a law enforcement agency in this state to observe activities within the
neighborhood or part of a neighborhood and to take other actions intended to reduce
crime in that area.
There are no cases or formal opinions interpreting this exception. In an informal ruling, the attorney
general found section 552.127 excepts from disclosure the name, home address, business address,
home telephone number, or business telephone number of a participant in a neighborhood crime
watch program.704 However, the attorney general also found the name, address, or contact
information of an organization participating in the neighborhood crime watch program is not
protected under section 552.127 unless the information relates to or identifies an individual
participants name, home or business address, or home or business telephone number.705
703
704
705

147
Appendix 23
FF.
Section 552.128: Confidentiality of Certain Information Submitted by

Potential Vendor or Contractor

(a)
Information submitted by a potential vendor or contractor to a governmental body

in connection with an application for certification as a historically underutilized or
disadvantaged business under a local, state, or federal certification program is
excepted from [required public disclosure], except as provided by this section.
(b)
Notwithstanding Section 552.007 and except as provided by Subsection (c), the

information may be disclosed only:
(1) to a state or local governmental entity in this state, and the state or local
governmental entity may use the information only:
(A) for purposes related to verifying an applicants status as a historically
underutilized or disadvantaged business; or
(B) for the purpose of conducting a study of a public purchasing program
established under state law for historically underutilized or disadvantaged
businesses; or
(2) with the express written permission of the applicant or the applicants agent.
(c)
Information submitted by a vendor or contractor or a potential vendor or contractor

to a governmental body in connection with a specific proposed contractual
relationship, a specific contract, or an application to be placed on a bidders list,
including information that may also have been submitted in connection with an
application for certification as a historically underutilized or disadvantaged business,
is subject to required disclosure, excepted from required disclosure, or confidential
in accordance with other law.
There are no cases or formal opinions interpreting this exception. However, in informal rulings, the
attorney general has determined that the exception does not apply to documents created by the
governmental body rather than submitted by the potential vendor or contractor.706 Additionally, the
exception may cover information submitted orally by an applicant.707 Subsection (c) of the exception
does not make confidential a potential contractors bid proposals, but states that bidding information
is subject to public disclosure unless made confidential by law.708
706
707
708

148
Appendix 23
GG.
Section 552.129: Confidentiality of Certain Motor Vehicle Inspection

Information

A record created during a motor vehicle emissions inspection under Subchapter F,
Chapter 548, Transportation Code, that relates to an individual vehicle or owner of an
individual vehicle is excepted from [required public disclosure].
There are no cases or formal opinions interpreting this exception.
HH.
Section 552.130: Confidentiality of Certain Motor Vehicle Records

(a)
Information is excepted from [required public disclosure] if the information relates

to:
(1) a motor vehicle operators or drivers license or permit issued by an agency of this
state or another state or country;
(2) a motor vehicle title or registration issued by an agency of this state or another
state or country; or
(3) a personal identification document issued by an agency of this state or another
state or country or a local agency authorized to issue an identification document.
709
(b)
Information described by Subsection (a) may be released only if, and in the manner,
authorized by Chapter 730, Transportation Code.
(c)
Subject to Chapter 730, Transportation Code, a governmental body may redact

information described by Subsection (a) from any information the governmental
body discloses under Section 552.021 without the necessity of requesting a decision
from the attorney general under Subchapter G.709
(d)
If, under Subsection (c), a governmental body redacts or withholds information

under this subsection, determining whether the redacted or withheld information
was excepted from required disclosure to the requestor, not later than the 45th
Act of May 6, 2013, 83rd Leg., R.S., S.B. 458, 1 (to be codified as an amendment to Govt Code 552.130(c)).

149
Appendix 23
business day after the date the attorney general received the request for a decision
under this subsection. The attorney general shall issue a written decision on the
matter and provide a copy of the decision to the requestor, the governmental body,
and any interested person who submitted necessary information or a brief to the
attorney general about the matter. The requestor or the governmental body may
appeal a decision of the attorney general under this subsection to a Travis County
district court.
(e)
A governmental body that redacts or withholds information under Subsection (c)

attorney general:
(3) instructions regarding how the requestor may seek a decision from the
attorney general regarding whether the redacted or withheld information
is excepted from required disclosure.
Examples of information excepted from required public disclosure under section 552.130(a)(1)
include the license number, class, restrictions, and expiration date of a drivers license issued by an
agency of the State of Texas.710 Examples of information excepted from disclosure under
section 552.130(a)(2) include a vehicle identification number and license plate number relating to
a title or registration issued by an agency of the State of Texas.711 Section 552.130 protects
information relating to a license, title, or registration issued by this state, a state other than Texas,
or another country. However, section 552.130 does not apply to motor vehicle record information
found in a CR-3 accident report form. Access to a CR-3 accident report is specifically governed by
section 550.065 of the Transportation Code, not section 552.130.712
Because, section 552.130 was enacted to protect privacy interests, an individual or his authorized
representative has a special right of access to his motor vehicle record information, and such
information may not be withheld from that individual under section 552.130.713 Furthermore,
information otherwise protected under section 552.130 may be released if the governmental body
is authorized to release the information under chapter 730 of the Transportation Code. Section
552.222(c) of the Government Code permits the officer for public information or the officers agent
to require the requestor to provide additional identifying information sufficient for the officer or the
officers agent to determine whether the requestor is eligible to receive the information under
chapter 730 of the Transportation Code. It should be noted that a deceased persons interest under
710
711
712
See discussion of section 550.065 of the Transportation Code in Part Two, Section II, Subsection H of this
Handbook.
713
See Govt Code 552.023; Open Records Decision Nos. 684 at 12-13 (2009), 481 at 4 (1987) (privacy theories not
implicated when individual requests information concerning himself).

150
Appendix 23
section 552.130 lapses upon the persons death, but section 552.130 would protect the interest of a
living person who has a co-ownership in the vehicle.714
The Eighty-third Legislature amended section 552.130(c) which now provides that subject to
chapter 730 of the Transportation Code, a governmental body may redact without the necessity of
requesting an attorney general decision information that is subject to subsection (a) of section
552.130. If a governmental body chooses to redact this information without requesting an attorney
general decision, it must notify the requestor as prescribed by section 552.130(e) on the form created
by the attorney general. The notice must include instructions regarding how the requestor may seek
an attorney generals review of the governmental bodys redactions. The form for notifying the
requestor is located on the attorney generals website. Pursuant to section 552.130(d), the attorney
general promulgated rules establishing procedures for review of a governmental bodys redactions.715
These rules are available on the attorney generals website and in Part Four of this Handbook.
If a governmental body lacks the technological capability to redact the motor vehicle record
information from a requested video, it must seek a ruling from the attorney general if it wishes to
withhold the information from disclosure.
II. Section 552.131:

Information
Confidentiality of Certain Economic Development
Section 552.131 of the Government Code reads as follows:

(a)
Information is excepted from the requirements of Section 552.021 if the information

relates to economic development negotiations involving a governmental body and a
business prospect that the governmental body seeks to have locate, stay, or expand
in or near the territory of the governmental body and the information relates to:
(1) a trade secret of the business prospect; or
(2) commercial or financial information for which it is demonstrated based on
specific factual evidence that disclosure would cause substantial competitive harm
to the person from whom the information was obtained.
(b)
Unless and until an agreement is made with the business prospect, information about
a financial or other incentive being offered to the business prospect by the
governmental body or by another person is excepted from the requirements of
Section 552.021.
714
Open Records Decision No. 684 at 13 (2009); see generally Moore v. Charles B. Pierce Film Enters., Inc., 589
S.W .2d 489, 491 (Tex. Civ. App. Texarkana 1979, writ refd n.r.e.); Justice v. Belo Broadcasting Corp., 472 F.
Supp. 145, 146-47 (N.D. Tex. 1979); Attorney General Opinions JM-229 at 3 (1984), H-917 at 2-3(1976); Open
Records Decision No. 272 at 1 (1981) (privacy rights lapse upon death).
715
See 1 T.A.C. 63.11.16.

151
Appendix 23
(c)
After an agreement is made with the business prospect, this section does not except
from the requirements of Section 552.021 information about a financial or other
incentive being offered to the business prospect:
(1) by the governmental body; or
(2) by another person, if the financial or other incentive may directly or indirectly
result in the expenditure of public funds by a governmental body or a reduction
in revenue received by a governmental body from any source.
Section 552.131(a) applies to the same two types of information excepted from disclosure under
section 552.110: (1) trade secrets; and (2) commercial or financial information for which it is
demonstrated based on specific factual evidence that disclosure would cause substantial competitive
harm to the person from whom the information was obtained. However, unlike section 552.110,
section 552.131(a) applies only to information that relates to economic development negotiations
between a governmental body and a business prospect. Section 552.131(b) excepts from public
disclosure any information relating to a financial or other incentive that a governmental body or
another person offers to a business prospect that seeks to have locate, stay, or expand in or near the
territory of the governmental body. After the governmental body reaches an agreement with the
business prospect, information about a financial or other incentive offered the business prospect is
no longer excepted under section 552.131. There are no formal cases or opinions interpreting this
exception.
When a governmental body believes requested information of a third party may be excepted under
this exception, the governmental body must notify the third party in accordance with section
552.305. The notice the governmental body must send to the third party is found in Part Nine of this
Handbook.
JJ.
Section 552.132:
Information
Confidentiality of Crime Victim or Claimant

(a)
Except as provided by Subsection (d), in this section, crime victim or claimant

means a victim or claimant under Subchapter B, Chapter 56, Code of Criminal
Procedure, who has filed an application for compensation under that subchapter.
(b)
The following information held by the crime victims compensation division of the
attorney generals office is confidential:
(1) the name, social security number, address, or telephone number of a crime victim
or claimant; or
(2) any other information the disclosure of which would identify or tend to identify
the crime victim or claimant.

152
Appendix 23
(c)
If the crime victim or claimant is awarded compensation under Section 56.34, Code
of Criminal Procedure, as of the date of the award of compensation, the name of the
crime victim or claimant and the amount of compensation awarded to that crime
victim or claimant are public information and are not excepted from the
requirements of Section 552.021.
(d)
An employee of a governmental body who is also a victim under Subchapter B,

Chapter 56, Code of Criminal Procedure, regardless of whether the employee has
filed an application for compensation under that subchapter, may elect whether to
allow public access to information held by the attorney generals office or other
governmental body that would identify or tend to identify the victim, including a
photograph or other visual representation of the victim. An election under this
subsection must be made in writing on a form developed by the governmental body,
be signed by the employee, and be filed with the governmental body before the third
anniversary of the latest to occur of one of the following:
(1) the date the crime was committed;
(2) the date employment begins; or
(3) the date the governmental body develops the form and provides it to
employees.
(e)
If the employee fails to make an election under Subsection (d), the identifying
information is excepted from disclosure until the third anniversary of the date the
crime was committed. In case of disability, impairment, or other incapacity of the
employee, the election may be made by the guardian of the employee or former
employee.
Section 552.132 makes both the victims and claimants identifying information confidential without
either party having to submit an election for non-disclosure to the Crime Victims Compensation
Division of the Office of the Attorney General. The attorney general has found that crime victims
have a special right of access to their own information under section 552.023 of the Government
Code.716 There are no cases or formal opinions interpreting this exception.
KK.
Section 552.1325:
Crime Victim Impact Statement: Certain
Information Confidential

(a)
In this section:
(1) Crime victim means a person who is a victim as defined by Article 56.32, Code
of Criminal Procedure.
716

153
Appendix 23
(2) Victim impact statement means a victim impact statement under Article 56.03,
Code of Criminal Procedure.
(b)
The following information that is held by a governmental body or filed with a court
and that is contained in a victim impact statement or was submitted for purposes of
preparing a victim impact statement is confidential:
(1) the name, social security number, address, and telephone number of a crime
victim; and
(2) any other information the disclosure of which would identify or tend to identify
the crime victim.
LL.
Section 552.133: Confidentiality of Public Power Utility Competitive

Matters

(a)
In this section, public power utility means an entity providing electric or gas utility
services that is subject to the provisions of this chapter.
(a-1) For purposes of this section, competitive matter means a utility-related matter that is
related to the public power utilitys competitive activity, including commercial
information, and would, if disclosed, give advantage to competitors or prospective
competitors. The term:
(1)
means a matter that is reasonably related to the following categories of information:
(A)
generation unit specific and portfolio fixed and variable costs, including forecasts
of those costs, capital improvement plans for generation units, and generation
unit operating characteristics and outage scheduling;
(B)
bidding and pricing information for purchased power, generation and fuel, and
Electric Reliability Council of Texas bids, prices, offers, and related services and
strategies;
(C)
effective fuel and purchased power agreements and fuel transportation

arrangements and contracts;
(D)
risk management information, contracts, and strategies, including fuel hedging

and storage;
(E)
plans, studies, proposals, and analyses for system improvements, additions, or

sales, other than transmission and distribution system improvements inside the
154
Appendix 23
service area for which the public power utility is the sole certificated retail
provider; and
(F)
(2)
customer billing, contract, and usage information, electric power pricing

information, system load characteristics, and electric power marketing analyses
and strategies; and
does not include the following categories of information:
(A)
information relating to the provision of distribution access service, including the

terms and conditions of the service and the rates charged for the service but not
including information concerning utility-related services or products that are
competitive;
(B)
information relating to the provision of transmission service that is required to be

filed with the Public Utility Commission of Texas, subject to any confidentiality
provided for under the rules of the commission;
(C)
information for the distribution system pertaining to reliability and continuity of

service, to the extent not security-sensitive, that relates to emergency management,
identification of critical loads such as hospitals and police, records of interruption,
and distribution feeder standards;
(D)
any substantive rule or tariff of general applicability regarding rates, service

offerings, service regulation, customer protections, or customer service adopted by
the public power utility as authorized by law;
(E)
aggregate information reflecting receipts or expenditures of funds of the public

power utility, of the type that would be included in audited financial statements;
(F)
information relating to equal employment opportunities for minority groups, as

filed with local, state, or federal agencies;
(G)
information relating to the public power utilitys performance in contracting with

minority business entities;
(H)
information relating to nuclear decommissioning trust agreements, of the type

required to be included in audited financial statements;
(I)
information relating to the amount and timing of any transfer to an owning citys
general fund;
(J)
information relating to environmental compliance as required to be filed with any

local, state, or national environmental authority, subject to any confidentiality
provided under the rules of those authorities;

155
Appendix 23
(K)
names of public officers of the public power utility and the voting records of those
officers for all matters other than those within the scope of a competitive resolution
provided for by this section;
(L)
a description of the public power utilitys central and field organization, including
the established places at which the public may obtain information, submit
information and requests, or obtain decisions and the identification of employees
from whom the public may obtain information, submit information or requests,
or obtain decisions;
(M)
information identifying the general course and method by which the public power
utilitys functions are channeled and determined, including the nature and
requirements of all formal and informal policies and procedures;
(N)
salaries and total compensation of all employees of a public power utility; or
(O)
information publicly released by the Electric Reliability Council of Texas in

accordance with a law, rule, or protocol generally applicable to similarly situated
market participants.
(b)
Information or records are excepted from the requirements of Section 552.021 if the
information or records are reasonably related to a competitive matter, as defined in this
section. Information or records of a municipally owned utility that are reasonably
related to a competitive matter are not subject to disclosure under this chapter, whether
or not, under the Utilities Code, the municipally owned utility has adopted customer
choice or serves in a multiply certificated service area. This section does not limit the
right of a public power utility governing body to withhold from disclosure information
deemed to be within the scope of any other exception provided for in this chapter, subject
to the provisions of this chapter.
(c)
The requirement of Section 552.022 that a category of information listed under Section
552.022(a) is public information and not excepted from required disclosure under this
chapter unless expressly confidential under law does not apply to information that is
excepted from required disclosure under this section.
Section 552.133 excepts from disclosure a public power utilitys information related to a competitive
matter. The exception defines competitive matter as a utility-related matter that is related to the
public power utilitys competitive activity. In order to be utility-related, the matter must relate to
the six enumerated categories of information. Section 552.133 lists fifteen categories of information
that may not be deemed competitive matters. In Open Records Decision No. 666 (2000), the
attorney general determined that a municipality may disclose information pertaining to a
municipally-owned power utility to a municipally-appointed citizen advisory board without waiving
its right thereafter to assert an exception under the Act in response to a future public request for
information.717
717

156
Appendix 23
MM.
Section 552.134: Confidentiality of Certain Information Relating to

Inmate of Department of Criminal Justice

(a)
Except as provided by Subsection (b) or by Section 552.029, information obtained or

maintained by the Texas Department of Criminal Justice is excepted from the
requirements of Section 552.021 if it is information about an inmate who is confined
in a facility operated by or under a contract with the department.
(b)
Subsection (a) does not apply to:

(1) statistical or other aggregated information relating to inmates confined in one or
more facilities operated by or under a contract with the department; or
(2) information about an inmate sentenced to death.
(c)
This section does not affect whether information is considered confidential or

privileged under Section 508.313.
(d)
A release of information described by Subsection (a) to an eligible entity, as defined

by Section 508.313(d), for a purpose related to law enforcement, prosecution,
corrections, clemency, or treatment is not considered a release of information to the
public for purposes of Section 552.007 and does not waive the right to assert in the
future that the information is excepted from required disclosure under this section
or other law.
This section should be read with two other provisions concerning the required public disclosure of
Texas Department of Criminal Justice information, sections 552.029 and 508.313 of the Government
Code. Section 508.313 of the Government Code generally makes confidential all information the
Texas Department of Criminal Justice obtains and maintains about certain classes of inmates,
including an inmate of the institutional division subject to release on parole, release to mandatory
supervision, or executive clemency. Section 508.313 also applies to information about a releasee
and a person directly identified in any proposed plan of release for an inmate. Section 508.313
requires the release of the information it covers to the governor, a member of the Board of Pardons
and Paroles, the Criminal Justice Policy Council, or an eligible entity requesting information for a
law enforcement, prosecutorial, correctional, clemency, or treatment purpose.718 Thus, both
sections 552.134 and 508.313 make certain information confidential.
On the other hand, section 552.029 of the Government Code provides that certain specified
information cannot be withheld under sections 552.134 and 508.313.
718

157
Appendix 23
Notwithstanding Section 508.313 or 552.134, the following information about an inmate who
is confined in a facility operated by or under a contract with the Texas Department of
Criminal Justice is subject to required disclosure under Section 552.021:
(1)
the inmates name, identification number, age, birthplace, department photograph,

physical description, or general state of health or the nature of an injury to or critical
illness suffered by the inmate;
(2)
the inmates assigned unit or the date on which the unit received the inmate, unless
disclosure of the information would violate federal law relating to the confidentiality
of substance abuse treatment;
(3)
the offense for which the inmate was convicted or the judgment and sentence for that
offense;
(4)
the county and court in which the inmate was convicted;
(5)
the inmates earliest or latest possible release dates;
(6)
the inmates parole date or earliest possible parole date;
(7)
any prior confinement of the inmate by the Texas Department of Criminal Justice or
its predecessor; or
(8)
basic information regarding the death of an inmate in custody, an incident involving

the use of force, or an alleged crime involving the inmate.
The Texas Department of Criminal Justice has the discretion to release information otherwise
protected under section 552.134 to voter registrars for the purpose of maintaining accurate voter
registration lists.719
NN.
Section 552.135: Confidentiality of Certain Information Held by

School District
719
(a)
Informer means a student or a former student or an employee or former employee

of a school district who has furnished a report of another persons possible violation
of criminal, civil, or regulatory law to the school district or the proper regulatory
enforcement authority.
(b)
An informers name or information that would substantially reveal the identity of an

informer is excepted from the requirements of Section 552.021.

158
Appendix 23
(c)
Subsection (b) does not apply:

(1) if the informer is a student or former student, and the student or former student,
or the legal guardian, or spouse of the student or former student consents to
disclosure of the students or former students name; or
(2) if the informer is an employee or former employee who consents to disclosure of
the employees or former employees name; or
(3) if the informer planned, initiated, or participated in the possible violation.
(d)
Information excepted under Subsection (b) may be made available to a law

enforcement agency or prosecutor for official purposes of the agency or prosecutor
upon proper request made in compliance with applicable law and procedure.
(e)
This section does not infringe on or impair the confidentiality of information

considered to be confidential by law, whether it be constitutional, statutory, or by
judicial decision, including information excepted from the requirements of
Section 552.021.
A school district that seeks to withhold information under this exception must clearly identify to the
attorney generals office the specific civil, criminal, or regulatory law that is alleged to have been
violated. The school district must also identify the individual who reported the alleged violation of
the law. There are no cases or formal opinions interpreting this exception.
OO.
Section 552.136: Confidentiality of Credit Card, Debit Card, Charge

Card, and Access Device Numbers

(a)
In this section, access device means a card, plate, code, account number, personal
identification number, electronic serial number, mobile identification number, or
other telecommunications service, equipment, or instrument identifier or means of
account access that alone or in conjunction with another access device may be used
to:
(1) obtain money, goods, services, or another thing of value; or
(2) initiate a transfer of funds other than a transfer originated solely by paper
instrument.
(b)
Notwithstanding any other provision of this chapter, a credit card, debit card, charge
card, or access device number that is collected, assembled, or maintained by or for
a governmental body is confidential.

159
Appendix 23
(c)
A governmental body may redact information that must be withheld under

Subsection (b) from any information the governmental body discloses under
Section 552.021 without the necessity of requesting a decision from the attorney
general under Subchapter G.
(d)

court.
(e)

attorney general:
A governmental body that raises section 552.136 must demonstrate how the access device number
it seeks to withhold is used alone or in combination to obtain money, goods, services, or another
thing of value or initiate a transfer of funds. The attorney general has interpreted this exception to
include bank account and routing numbers, full and partial credit card numbers and their expiration
dates, and insurance policy numbers.720 Because section 552.136 protects privacy interests, a
governmental body may not invoke this exception to withhold an access device from the person to
whom the device belongs or that persons authorized representative.721
720
721
Open Records Decision No. 684 at 12 (2009); see Govt Code 552.023.

160
Appendix 23
Pursuant to section 552.136(c), a governmental body may redact without the necessity of requesting
an attorney general decision information that is subject to section 552.136. If a governmental body
chooses to redact this information without requesting an attorney general decision, it must notify the
requestor as prescribed by section 552.136(e) on the form created by the attorney general. The notice
must include instructions regarding how the requestor may seek an attorney generals review of the
governmental bodys redactions. The form for notifying the requestor is located on the attorney
generals website. The legislation enacting this provision authorized the attorney general to
promulgate rules establishing procedures for review under section 552.136(d). These rules were
promulgated in subchapter B of chapter 63 of title 1 of the Texas Administrative Code.722 These
rules are available on the attorney generals website and in Part Four of this Handbook.
PP.
Section 552.137: Confidentiality of Certain E-mail Addresses

(a)
Except as otherwise provided by this section, an e-mail address of a member of the

public that is provided for the purpose of communicating electronically with a
governmental body is confidential and not subject to disclosure under this chapter.
(b)
Confidential information described by this section that relates to a member of the

public may be disclosed if the member of the public affirmatively consents to its
release.
(c)
Subsection (a) does not apply to an e-mail address:

(1) provided to a governmental body by a person who has a contractual relationship
with the governmental body or by the contractors agent;
(2) provided to a governmental body by a vendor who seeks to contract with the
governmental body or by the vendors agent;
(3) contained in a response to a request for bids or proposals, contained in a response
to similar invitations soliciting offers or information relating to a potential
contract, or provided to a governmental body in the course of negotiating the
terms of a contract or potential contract;
(4) provided to a governmental body on a letterhead, cover sheet, printed document,
or other document made available to the public; or
(5) provided to a governmental body for the purpose of providing public comment
on or receiving notices related to an application for a license as defined by
Section 2001.003(2) of this code, or receiving orders or decisions from a
governmental body.
722
See 1 T.A.C. 63.11.16

161
Appendix 23
(d)
Subsection (a) does not prevent a governmental body from disclosing an e-mail
address for any reason to another governmental body or to a federal agency.
In addition to the exceptions found in amended section 552.137(c), the attorney general has
determined that section 552.137 does not protect a government employees work e-mail address or
an institutional e-mail address or website address.723 Because a person may consent to the disclosure
of his or her e-mail address under the statute, the person has a right to his or her own e-mail
address.724 The attorney general issued Open Records Decision No. 684 (2009), a previous
determination to all governmental bodies authorizing them to withhold an e-mail address of a
member of the public without the necessity of requesting an attorney general decision.725
QQ.
Section 552.138: Confidentiality of Family Violence Shelter Center,

Victims of Trafficking Shelter Center, and Sexual Assault Program
Information
Section 552.138 of the Government Code was amended by the Eighty-third Legislature to provide
as follows:
(a)
In this section:
(1) Family violence shelter center has the meaning assigned by Section 51.002,
Human Resources Code.
(2) Sexual assault program has the meaning assigned by Section 420.003.
(3) Victims of trafficking shelter center means:
(A) a program that:
(i)
is operated by a public or private nonprofit organization; and
(ii)
provides comprehensive residential and nonresidential services to

persons who are victims of trafficking under Section 20A.02, Penal
Code; or
(B) a child-placing agency, as defined by Section 42.002, Human Resources Code,

that provides services to persons who are victims of trafficking under
Section 20A.02, Penal Code.
723
724
725

162
Appendix 23
(b)
Information maintained by a family violence shelter center, victims of trafficking

shelter center, or sexual assault program is excepted from the requirements of
Section 552.021 if it is information that relates to:
(1) the home address, home telephone number, or social security number of an
employee or a volunteer worker of a family violence shelter center, victims of
trafficking shelter center, or sexual assault program, regardless of whether the
employee or worker complies with Section 552.024;
(2) the location or physical layout of a family violence shelter center or victims of
trafficking shelter center;
(3) the name, home address, home telephone number, or numeric identifier of a
current or former client of a family violence shelter center, victims of trafficking
shelter center, or sexual assault program;
(4) the provision of services, including counseling and sheltering, to a current or
former client of a family violence shelter center, victims of trafficking shelter
center, or sexual assault program;
(5) the name, home address, or home telephone number of a private donor to a family
violence shelter center, victims of trafficking shelter center, or sexual assault
program; or
(6) the home address or home telephone number of a member of the board of
directors or the board of trustees of a family violence shelter center, victims of
trafficking shelter center, or sexual assault program, regardless of whether the
board member complies with Section 552.024.
726
(c)
A governmental body may redact information maintained by a family violence shelter

center, victims of trafficking shelter center, or sexual assault program that may be
withheld under Subsection (b)(1) or (6) from any information the governmental body
discloses under Section 552.021 without the necessity of requesting a decision from
the attorney general under Subchapter G.726
(d)

Act of May 21, 2013, 83rd Leg., R.S., H.B. 2725, 13 (to be codified as amendments to Govt Code 552.138).

163
Appendix 23
court.
(e)

attorney general:
Thus, section 552.138 allows a governmental body to redact the following information maintained
by a family violence shelter center, victims of trafficking shelter center, or sexual assault program
without the necessity of requesting an attorney general decision: the home address, home telephone
number, or social security number of an employee or volunteer worker. Section 552.138 also allows
the redaction of the home address or telephone number of a member of the board of directors or the
board of trustees without the necessity of requesting an attorney general decision. If a governmental
body chooses to redact this information without requesting an attorney general decision, it must
notify the requestor as prescribed section 552.138(e) on the form created by the attorney general.
The notice must include instructions regarding how the requestor may seek an attorney generals
review of the governmental bodys redactions. The form for notifying the requestor is published on
the attorney generals website. The legislation enacting these provisions authorized the attorney
general to promulgate rules establishing procedures for review under section 552.138(d). These rules
are available on the attorney generals website and in Part Four of this Handbook.727
RR.
Section 552.139: Confidentiality of Government Information Related

to Security or Infrastructure Issues for Computers

(a)
727

that relates to computer network security, to restricted information under Section
2059.055, or to the design, operation, or defense of a computer network.
See 1 T.A.C. 63.11.16.

164
Appendix 23
(b)
The following information is confidential:

(1) a computer network vulnerability report;
(2) any other assessment of the extent to which data processing operations, a
computer, a computer program, network, system, or system interface, or software
of a governmental body or of a contractor of a governmental body is vulnerable
to unauthorized access or harm, including an assessment of the extent to which
the governmental bodys or contractors electronically stored information
containing sensitive or critical information is vulnerable to alteration, damage,
erasure, or inappropriate use; and
(3) a photocopy or other copy of an identification badge issued to an official or
employee of a governmental body.
(c)
Notwithstanding the confidential nature of the information described in this section,

the information may be disclosed to a bidder if the governmental body determines
that providing the information is necessary for the bidder to provide an accurate bid.
A disclosure under this subsection is not a voluntary disclosure for purposes of
Section 552.007.
SS.
Section 552.140: Confidentiality of Military Discharge Records

(a)
This section applies only to a military veterans Department of Defense Form DD-214
or other military discharge record that is first recorded with or that otherwise first
comes into the possession of a governmental body on or after September 1, 2003.
(b)
The record is confidential for the 75 years following the date it is recorded with or
otherwise first comes into the possession of a governmental body. During that period
the governmental body may permit inspection or copying of the record or disclose
information contained in the record only in accordance with this section or in
accordance with a court order.
(c)
On request and the presentation of proper identification, the following persons may
inspect the military discharge record or obtain from the governmental body free of
charge a copy or certified copy of the record:
(1) the veteran who is the subject of the record;
(2) the legal guardian of the veteran;

165
Appendix 23
(3) the spouse or a child or parent of the veteran or, if there is no living spouse, child,
or parent, the nearest living relative of the veteran;
(4) the personal representative of the estate of the veteran;
(5) the person named by the veteran, or by a person described by Subdivision (2), (3),
or (4), in an appropriate power of attorney executed in accordance with Section
490, Chapter XII, Texas Probate Code;
(6) another governmental body; or
(7) an authorized representative of the funeral home that assists with the burial of the
veteran.
(d)
A court that orders the release of information under this section shall limit the
further disclosure of the information and the purposes for which the information may
be used.
(e)
A governmental body that obtains information from the record shall limit the
governmental bodys use and disclosure of the information to the purpose for which
the information was obtained.
In Open Records Decision No. 684 (2009), the attorney general issued a previous determination to
all governmental bodies authorizing them to withhold, a Form DD-214 or other military discharge
record that is first recorded with or that otherwise first comes into the possession of the
governmental body on or after September 1, 2003, under section 552.140 of the Government Code,
without the necessity of requesting an attorney general decision.728
TT.
Section 552.141: Confidentiality of Information in Application for

Marriage License

(a)
728
Information that relates to the social security number of an individual that is

maintained by a county clerk and that is on an application for a marriage license,
including information in an application on behalf of an absent applicant and the
affidavit of an absent applicant, or is on a document submitted with an application
for a marriage license is confidential and may not be disclosed by the county clerk to
the public under this chapter.

166
Appendix 23
(b)
If the county clerk receives a request to make information in a marriage license

application available under this chapter, the county clerk shall redact the portion of
the application that contains an individuals social security number and release the
remainder of the information in the application.
This exception applies only to an application for a marriage license that is filed on or after
September 1, 2003.729 There are no cases or formal opinions interpreting this exception.
UU.
Section 552.142:
Adjudications
Confidentiality of Records of Certain Deferred

(a)
Information is excepted from the requirements of Section 552.021 if an order of

nondisclosure with respect to the information has been issued under Section
411.081(d).
(b)
A person who is the subject of information that is excepted from the requirements of
Section 552.021 under this section may deny the occurrence of the arrest and
prosecution to which the information relates and the exception of the information
under this section, unless the information is being used against the person in a
subsequent criminal proceeding.
VV.
Section 552.1425: Civil Penalty: Dissemination of Certain Criminal

History Information

(a)
A private entity that compiles and disseminates for compensation criminal history
record information may not compile or disseminate information with respect to which
the entity has received notice that:
(1) an order of expunction has been issued under Article 55.02, Code of Criminal
Procedure; or
(2) an order of nondisclosure has been issued under Section 411.081(d).
(b)
729
A district court may issue a warning to a private entity for a first violation of
Subsection (a). After receiving a warning for the first violation, the private entity is
liable to the state for a civil penalty not to exceed $1,000 for each subsequent
violation.
See Act of May 21, 2003, 78th Leg., R.S., ch. 804, 2, 2003 Tex. Gen. Laws 2356.

167
Appendix 23
(c)
The attorney general or an appropriate prosecuting attorney may sue to collect a civil
penalty under this section.
(d)
A civil penalty collected under this section shall be deposited in the state treasury to
the credit of the general revenue fund.
There are no cases or formal opinions interpreting this section.
WW. Section 552.143: Confidentiality of Certain Investment Information

(a)
All information prepared or provided by a private investment fund and held by a

governmental body that is not listed in Section 552.0225(b) is confidential and
(b)
Unless the information has been publicly released, pre-investment and postinvestment diligence information, including reviews and analyses, prepared or
maintained by a governmental body or a private investment fund is confidential and
excepted from the requirements of Section 552.021, except to the extent it is subject
to disclosure under Subsection (c).
(c)
All information regarding a governmental bodys direct purchase, holding, or

disposal of restricted securities that is not listed in Section 552.0225(b)(2)(9), (11),
or (13)(16) is confidential and excepted from the requirements of Section 552.021.
This subsection does not apply to a governmental bodys purchase, holding, or
disposal of restricted securities for the purpose of reinvestment nor does it apply to
a private investment funds investment in restricted securities. This subsection
applies to information regarding a direct purchase, holding, or disposal of restricted
securities by the Texas growth fund, created under Section 70, Article XVI, Texas
Constitution, that is not listed in Section 552.0225(b).
(d)
For the purposes of this chapter:

(1) Private investment fund means an entity, other than a governmental body, that
issues restricted securities to a governmental body to evidence the investment of
public funds for the purpose of reinvestment.
(2) Reinvestment means investment in a person that makes or will make other
investments.
(3) Restricted securities has the meaning assigned by 17 C.F.R. Section
230.144(a)(3).
(e)
Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 4 (S.B. 1), 17.05(1)
168
Appendix 23
(f)
This section does not apply to the Texas Mutual Insurance Company or a successor
to the company.
There are no cases or formal opinions interpreting this exception. Section 552.0225 makes public
certain investment information. The attorney general has determined in an informal letter ruling that
section 552.143 is subject to the public disclosure requirements of section 552.0225.730
XX. Section 552.144: Working Papers and Electronic Communications of

Administrative Law Judges at State Office of Administrative Hearings
The following working papers and electronic communications of an administrative law
judge at the State Office of Administrative Hearings are excepted from the requirements
of Section 552.021:
(1) notes and electronic communications recording the observations, thoughts, questions,
deliberations, or impressions of an administrative law judge;
(2) drafts of a proposal for decision;
(3) drafts of orders made in connection with conducting contested case hearings; and
(4) drafts of orders made in connection with conducting alternative dispute resolution
procedures.
YY.
Section 552.145: Confidentiality of Texas No-Call List

The Texas no-call list created under Subchapter B, Chapter 304, Business & Commerce
Code, and any information provided to or received from the administrator of the national
do-not-call registry maintained by the United States government, as provided by
Sections 304.051 and 304.56, Business & Commerce Code, are excepted from the
Section 552.145 applies specifically to the no-call list and information provided to or removed from
the administrator of the do-not-call registry.731
730
731

169
Appendix 23
ZZ.
Section 552.146: Certain Communications with Assistant or Employee

of Legislative Budget Board

(a)
All written or otherwise recorded communications, including conversations,

correspondence, and electronic communications, between a member of the legislature
or the lieutenant governor and an assistant or employee of the Legislative Budget
Board are excepted from the requirements of Section 552.021.
(b)
Memoranda of a communication between a member of the legislature or the

lieutenant governor and an assistant or employee of the Legislative Budget Board are
excepted from the requirements of Section 552.021 without regard to the method used
to store or maintain the memoranda.
(c)
This section does not except from required disclosure a record or memoranda of a
communication that occurs in public during an open meeting or public hearing
conducted by the Legislative Budget Board.
AAA. Section 552.147: Social Security Numbers

Section 552.147 of the Government Code was amended by the Eighty-third Legislature and provides
as follows:
(a)
Except as provided by Subsection (a-1), the social security number of a living person
is excepted from the requirements of Section 552.021, but is not confidential under
this section and this section does not make the social security number of a living
person confidential under another provision of this chapter or other law.
(a-1) The social security number of an employee of a school district in the custody of the
district is confidential.732
732
(b)
A governmental body may redact the social security number of a living person from
any information the governmental body discloses under Section 552.021 without the
necessity of requesting a decision from the attorney general under Subchapter G.
(c)
Notwithstanding any other law, a county or district clerk may disclose in the ordinary
course of business a social security number that is contained in information held by
the clerks office, and that disclosure is not official misconduct and does not subject
the clerk to civil or criminal liability of any kind under the law of this state, including
any claim for damages in a lawsuit or the criminal penalty imposed by Section
552.352.

170
Appendix 23
(d)
Unless another law requires a social security number to be maintained in a

government document, on written request from an individual or the individuals
representative the clerk shall redact within a reasonable amount of time all but the
last four digits of the individuals social security number from information
maintained in the clerks official public records, including electronically stored
information maintained by or under the control of the clerk. The individual or the
individuals representative must identify, using a form provided by the clerk, the
specific document or documents from which the partial social security number shall
be redacted.
BBB. Section 552.148: Confidentiality of Certain Personal Information

Maintained by Municipality Pertaining to a Minor
(a)
In this section, minor means a person younger than 18 years of age.
(b)
The following information maintained by a municipality for purposes related to the

participation by a minor in a recreational program or activity is excepted from the
requirements of Section 552.021:
(1) the name, age, home address, home telephone number, or social security number
of the minor;
(2) a photograph of the minor; and
(3) the name of the minors parent or legal guardian.
CCC. Section 552.149: Confidentiality of Records of Comptroller or

Appraisal District Received from Private Entity
(a)
Information relating to real property sales prices, descriptions, characteristics, and

other related information received from a private entity by the comptroller or the
chief appraiser of an appraisal district under Chapter 6, Tax Code, is excepted from
the requirements of Section 552.021.
(b)
Notwithstanding Subsection (a), the property owner or the owners agent may, on
request, obtain from the chief appraiser of the applicable appraisal district a copy of
each item of information described by Section 41.461(a)(2), Tax Code, and a copy of
each item of information that the chief appraiser took into consideration but does not
171
Appendix 23
plan to introduce at the hearing on the protest. In addition, the property owner or
agent may, on request, obtain from the chief appraiser comparable sales data from
a reasonable number of sales that is relevant to any matter to be determined by the
appraisal review board at the hearing on the property owners protest. Information
obtained under this subsection:
(1) remains confidential in the possession of the property owner or agent; and
(2) may not be disclosed or used for any purpose except as evidence or argument at
the hearing on the protest.
(c)
Notwithstanding Subsection (a) or Section 403.304, so as to assist a property owner

or an appraisal district in a protest filed under Section 403.303, the property owner,
the district, or an agent of the property owner or district may, on request, obtain
from the comptroller any information, including confidential information, obtained
by the comptroller in connection with the comptrollers finding that is being
protested. Confidential information obtained by a property owner, an appraisal
district, or an agent of the property owner or district under this subsection:
(1) remains confidential in the possession of the property owner, district, or
agent; and
(2) may not be disclosed to a person who is not authorized to receive or inspect the
information.
(d)
Notwithstanding Subsection (a) or Section 403.304, so as to assist a school district in

the preparation of a protest filed or to be filed under Section 403.303, the school
district or an agent of the school district may, on request, obtain from the comptroller
or the appraisal district any information, including confidential information,
obtained by the comptroller or the appraisal district that relates to the appraisal of
property involved in the comptrollers finding that is being protested. Confidential
information obtained by a school district or an agent of the school district under this
subsection:
(1) remains confidential in the possession of the school district or agent; and
(2) may not be disclosed to a person who is not authorized to receive or inspect the
information.
(e)
This section applies to information described by Subsections (a), (c), and (d) and to
an item of information or comparable sales data described by Subsection (b) only if
the information, item of information, or comparable sales data relates to real
property that is located in a county having a population of more than 50,000.

172
Appendix 23
DDD. Section 552.150:

Confidentiality of Information That Could
Compromise Safety of Officer or Employee of Hospital District
(a) Information in the custody of a hospital district that relates to an employee or officer
of the hospital district is excepted from the requirements of Section 552.021 if:
(1) it is information that, if disclosed under the specific circumstances pertaining to
the individual, could reasonably be expected to compromise the safety of the
individual, such as information that describes or depicts the likeness of the
individual, information stating the times that the individual arrives at or departs
from work, a description of the individuals automobile, or the location where the
individual works or parks; and
(2) the employee or officer applies in writing to the hospital districts officer for
public information to have the information withheld from public disclosure under
this section and includes in the application:
(A) a description of the information; and
(B) the specific circumstances pertaining to the individual that demonstrate why
disclosure of the information could reasonably be expected to compromise
the safety of the individual.
(b) On receiving a written request for information described in an application submitted
under Subsection (a)(2), the officer for public information shall:
(1) request a decision from the attorney general in accordance with Section 552.301
regarding withholding the information; and
(2) include a copy of the application submitted under Subsection (a)(2) with the
request for the decision.
(c) Repealed by Acts 2011, 82nd Leg., ch. 609 (S.B. 470), 1.
EEE. Section 552.151:

Confidentiality of Information Concerning
Information Regarding Select Agents
(a)
The following information that pertains to a biological agent or toxin identified or

listed as a select agent under federal law, including under the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. No. 107-188)
173
Appendix 23
and regulations adopted under that Act, is excepted from the requirements of
Section 552.021:
(1) the specific location of a select agent within an approved facility;
(2) personal identifying information of an individual whose name appears in
documentation relating to the chain of custody of select agents, including a
materials transfer agreement; and
(3) the identity of an individual authorized to possess, use, or access a select agent.
(b)
This section does not except from disclosure the identity of the select agents present
at a facility.
(c)
This section does not except from disclosure the identity of an individual faculty
member or employee whose name appears or will appear on published research.
(d)
This section does not except from disclosure otherwise public information relating to
contracts of a governmental body.
(e)
If a resident of another state is present in Texas and is authorized to possess, use, or

access a select agent in conducting research or other work at a Texas facility,
information relating to the identity of that individual is subject to disclosure under
this chapter only to the extent the information would be subject to disclosure under
the laws of the state of which the person is a resident.
FFF.
Section 552.152: Confidentiality of Information Concerning Public

Employee or Officer Personal Safety

Information in the custody of a governmental body that relates to an employee or officer
of the governmental body is excepted from the requirements of Section 552.021 if, under
the specific circumstances pertaining to the employee or officer, disclosure of the
information would subject the employee or officer to a substantial threat of physical harm.

174
Appendix 23
GGG. 552.153. Proprietary Records and Trade Secrets Involved in Certain

Partnerships
Section 552.153 of the Government Code was amended by the Eighty-third Legislature and provides
as follows:
(a)
In this section, affected jurisdiction, comprehensive agreement, contracting

person, interim agreement, qualifying project, and responsible governmental
entity have the meanings assigned those terms by Section 2267.001.
(b)
Information in the custody of a responsible governmental entity that relates to a

proposal for a qualifying project authorized under Chapter 2267 is excepted from the
requirements of Section 552.021 if:
(1)
(2)
(c)
the information consists of memoranda, staff evaluations, or other records

prepared by the responsible governmental entity, its staff, outside advisors, or
consultants exclusively for the evaluation and negotiation of proposals filed
under Chapter 2267 for which:
(A)
disclosure to the public before or after the execution of an interim or

comprehensive agreement would adversely affect the financial interest
or bargaining position of the responsible governmental entity; and
(B)
the basis for the determination under Paragraph (A) is documented in

writing by the responsible governmental entity; or
the records are provided by a proposer to a responsible governmental entity or

affected jurisdiction under Chapter 2267 and contain:
(A)
trade secrets of the proposer;
(B)
financial records of the proposer, including balance sheets and financial

statements, that are not generally available to the public through
regulatory disclosure or other means; or
(C)
work product related to a competitive bid or proposal submitted by the

proposer that, if made public before the execution of an interim or
comprehensive agreement, would provide a competing proposer an
unjust advantage or adversely affect the financial interest or bargaining
position of the responsible governmental entity or the proposer.
Except as specifically provided by Subsection (b), this section does not authorize the
withholding of information concerning:
(1) the terms of any interim or comprehensive agreement, service contract, lease,
partnership, or agreement of any kind entered into by the responsible
175
Appendix 23
governmental entity and the contracting person or the terms of any financing
arrangement that involves the use of any public money; or
(2) the performance of any person developing or operating a qualifying project under
Chapter 2267.
(d)
In this section, proposer has the meaning assigned by Section 2267.001.733
HHH. 552.154: Name of Applicant for Executive Director, Chief Investment

Officer, or Chief Audit Executive of Teacher Retirement System of
Texas734
Section 552.154 of the Government Code was renumbered by the Eighty-third Legislature and
provides as follows:
The name of an applicant for the position of executive director, chief investment officer,
or chief audit executive of the Teacher Retirement System of Texas is excepted from the
requirements of Section 552.021, except that the board of trustees of the Teacher
Retirement System of Texas must give public notice of the names of three finalists being
considered for one of those positions at least 21 days before the date of the meeting at
which the final action or vote is to be taken on choosing a finalist for employment.
733
Act of May 27, 2013, 83rd Leg., R.S., S.B. 211, 4 (to be codified as an amendment to Govt Code 552.153).
734
Act of May 13, 2013, 83rd Leg., R.S., S.B. 1093, 22.001(22) (to be codified as Govt Code 552.154).

176
Appendix 23
Text of the Texas Public Information Act
PART THREE: TEXT OF THE TEXAS PUBLIC INFORMATION ACT

GOVERNMENT CODE CHAPTER 552. PUBLIC INFORMATION
SUBCHAPTER A. GENERAL PROVISIONS
552.001.
Policy; Construction
(a) 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.
(b) This chapter shall be liberally construed in favor of granting a request for information.
552.002.
Definition of Public Information; Media Containing Public Information
(a) In this chapter, public information means information that is written, produced, collected,
assembled, or maintained under a law or ordinance or in connection with the transaction of
official business:
(1)
(2)

(C) spends or contributes public money for the purpose of writing, producing, collecting,
assembling, or maintaining the information; or
(3)
by an individual officer or employee of a governmental body in the officers or employees

official capacity and the information pertains to official business of the governmental body.
(a-1) Information is in connection with the transaction of official business if the information is
created by, transmitted to, received by, or maintained by an officer or employee of the
governmental body in the officers or employees official capacity, or a person or entity
performing official business or a governmental function on behalf of a governmental body, and
pertains to official business of the governmental body.

177
Appendix 23
(a-2) The definition of public information provided by Subsection (a) applies to and includes any
electronic communication created, transmitted, received, or maintained on any device if the
communication is in connection with the transaction of official business.
(b) The media on which public information is recorded include:
(1)
paper;
(2)
film;
(3)
a magnetic, optical, solid state, or other device that can store an electronic signal;
(4)
tape;
(5)
Mylar; and
(6)
any physical material on which information may be recorded, including linen, silk,
and vellum.
(c) The general forms in which the media containing public information exist include a book, paper,
letter, document, e-mail, Internet posting, text message, instant message, other electronic
communication, printout, photograph, film, tape, microfiche, microfilm, photostat, sound
recording, map, and drawing and a voice, data, or video representation held in computer memory.
552.003.
Definitions
In this chapter:
(1)
Governmental body:
(A)
means:
(i)
a board, commission, department, committee, institution, agency, or office that

is within or is created by the executive or legislative branch of state government
and that is directed by one or more elected or appointed members;
(ii)
(iii) a municipal governing body in the state;

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

178
Appendix 23
(vii) a county board of education;

(viii) the governing board of a special district;
(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water
(x)
(xi) a nonprofit corporation that is eligible to receive funds under the federal
community services block grant program and that is authorized by this state to
serve a geographic area of the state; and
(xii) the part, section, or portion of an organization, corporation, commission,
committee, institution, or agency that spends or that is supported in whole or in
part by public funds; and
(B)
(2)
does not include the judiciary.
Manipulation means the process of modifying, reordering, or decoding of information with

human intervention.
(2-a) Official business means any matter over which a governmental body has any authority,
administrative duties, or advisory duties.
(3)
Processing means the execution of a sequence of coded instructions by a computer producing

a result.
(4)
Programming means the process of producing a sequence of coded instructions that can be
executed by a computer.
(5)
Public funds means funds of the state or of a governmental subdivision of the state.
(6)
Requestor means a person who submits a request to a governmental body for inspection or
copies of public information.
552.0035. Access to Information of Judiciary

(a)
Access to information collected, assembled, or maintained by or for the judiciary is governed

by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.
(b)
This section does not address whether information is considered to be information collected,
assembled, or maintained by or for the judiciary.

179
Appendix 23
552.0036. Certain Property Owners Associations Subject to Law

A property owners association is subject to this chapter in the same manner as a governmental body:
(1)
(2)
if:
(A)
membership in the property owners association is mandatory for owners or for a

defined class of owners of private real property in a defined geographic area in a county
with a population of 2.8 million or more or in a county adjacent to a county with a
population of 2.8 million or more;
(B)
the property owners association has the power to make mandatory special assessments
for capital improvements or mandatory regular assessments; and
(C)
the amount of the mandatory special or regular assessments is or has ever been based
in whole or in part on the value at which the state or a local governmental body
assesses the property for purposes of ad valorem taxation under Section 20, Article
VIII, Texas Constitution; or
if the property owners association:

(A)
provides maintenance, preservation, and architectural control of residential and

commercial property within a defined geographic area in a county with a population
of 2.8 million or more or in a county adjacent to a county with a population of 2.8
million or more; and
(B)
is a corporation that:
(i)
is governed by a board of trustees who may employ a general manager to execute

the associations bylaws and administer the business of the corporation;
(ii)
does not require membership in the corporation by the owners of the property
within the defined area; and
(iii) was incorporated before January 1, 2006.

552.0038. Public Retirement Systems Subject to Law
(a)
In this section, governing body of a public retirement system and public retirement system
have the meanings assigned those terms by Section 802.001.
(b)
Except as provided by Subsections (c) through (i), the governing body of a public retirement
system is subject to this chapter in the same manner as a governmental body.
(c)
Records of individual members, annuitants, retirees, beneficiaries, alternate payees, program

participants, or persons eligible for benefits from a retirement system under a retirement plan
or program administered by the retirement system that are in the custody of the system or in
180
Appendix 23
the custody of an administering firm, a carrier, or another governmental agency, including the
comptroller, acting in cooperation with or on behalf of the retirement system are confidential
and not subject to public disclosure. The retirement system, administering firm, carrier, or
governmental agency is not required to accept or comply with a request for a record or
information about a record or to seek an opinion from the attorney general because the records
are exempt from the provisions of this chapter, except as otherwise provided by this section.
(d)
Records may be released to a member, annuitant, retiree, beneficiary, alternate payee, program
participant, or person eligible for benefits from the retirement system or to an authorized
attorney, family member, or representative acting on behalf of the member, annuitant, retiree,
beneficiary, alternate payee, program participant, or person eligible for benefits. The
retirement system may release the records to:
(1)
an administering firm, carrier, or agent or attorney acting on behalf of the retirement

system;
(2)
another governmental entity having a legitimate need for the information to perform
the purposes of the retirement system; or
(3)
a party in response to a subpoena issued under applicable law.
(e)
A record released or received by the retirement system under this section may be transmitted
electronically, including through the use of an electronic signature or certification in a form
acceptable to the retirement system. An unintentional disclosure to, or unauthorized access by,
a third party related to the transmission or receipt of information under this section is not a
violation by the retirement system of any law, including a law or rule relating to the protection
of confidential information.
(f)
The records of an individual member, annuitant, retiree, beneficiary, alternate payee, program
participant, or person eligible for benefits from the retirement system remain confidential after
release to a person as authorized by this section. The records may become part of the public
record of an administrative or judicial proceeding related to a contested case, and the member,
annuitant, retiree, beneficiary, alternate payee, program participant, or person eligible for
benefits waives the confidentiality of the records, including medical records, unless the records
are closed to public access by a protective order issued under applicable law.
(g)
The retirement system may require a person to provide the persons social security number as
the system considers necessary to ensure the proper administration of all services, benefits,
plans, and programs under the retirement systems administration, oversight, or participation
or as otherwise required by state or federal law.
(h)
The retirement system has sole discretion in determining whether a record is subject to this
section. For purposes of this section, a record includes any identifying information about a
person, living or deceased, who is or was a member, annuitant, retiree, beneficiary, alternate
payee, program participant, or person eligible for benefits from the retirement system under
any retirement plan or program administered by the retirement system.

181
Appendix 23
(i)
To the extent of a conflict between this section and any other law with respect to the
confidential information held by a public retirement system or other entity described by
Subsection (c) concerning an individual member, annuitant, retiree, beneficiary, alternate
payee, program participant, or person eligible for benefits from the retirement system, the
prevailing provision is the provision that provides the greater substantive and procedural
protection for the privacy of information concerning that individual member, annuitant, retiree,
beneficiary, alternate payee, program participant, or person eligible for benefits.
552.004.
Preservation of Information
A governmental body or, for information of an elective county office, the elected county officer, may
determine a time for which information that is not currently in use will be preserved, subject to any
applicable rule or law governing the destruction and other disposition of state and local government
records or public information.
552.005.
Effect of Chapter on Scope of Civil Discovery
(a)
This chapter does not affect the scope of civil discovery under the Texas Rules of Civil
Procedure.
(b)
Exceptions from disclosure under this chapter do not create new privileges from discovery.
552.0055. Subpoena Duces Tecum or Discovery Request

A subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a
rule of civil or criminal procedure is not considered to be a request for information under this
chapter.
552.006.
Effect of Chapter on Withholding Public Information
This chapter does not authorize the withholding of public information or limit the availability of
public information to the public, except as expressly provided by this chapter.
552.007.
Voluntary Disclosure of Certain Information When Disclosure Not Required
(a)
This chapter does not prohibit a governmental body or its officer for public information from
voluntarily making part or all of its information available to the public, unless the disclosure
is expressly prohibited by law or the information is confidential under law.
(b)
Public information made available under Subsection (a) must be made available to any person.
552.008.
(a)
Information for Legislative Purposes
This chapter does not grant authority to withhold information from individual members,
agencies, or committees of the legislature to use for legislative purposes.

182
Appendix 23
(b)
A governmental body on request by an individual member, agency, or committee of the

legislature shall provide public information, including confidential information, to the
requesting member, agency, or committee for inspection or duplication in accordance with this
chapter if the requesting member, agency, or committee states that the public information is
requested under this chapter for legislative purposes. A governmental body, by providing
public information under this section that is confidential or otherwise excepted from required
disclosure under law, does not waive or affect the confidentiality of the information for
purposes of state or federal law or waive the right to assert exceptions to required disclosure
of the information in the future. The governmental body may require the requesting individual
member of the legislature, the requesting legislative agency or committee, or the members or
employees of the requesting entity who will view or handle information that is received under
this section and that is confidential under law to sign a confidentiality agreement that covers
the information and requires that:
(1)
the information not be disclosed outside the requesting entity, or within the requesting
entity for purposes other than the purpose for which it was received;
(2)
(3)
the information be kept securely; or
(4)
the number of copies made of the information or the notes taken from the information
that implicate the confidential nature of the information be controlled, with all copies
or notes that are not destroyed or returned to the governmental body remaining
confidential and subject to the confidentiality agreement.
(b-1) A member, committee, or agency of the legislature required by a governmental body to sign
a confidentiality agreement under Subsection (b) may seek a decision as provided by
Subsection (b-2) about whether the information covered by the confidentiality agreement is
confidential under law. A confidentiality agreement signed under Subsection (b) is void to the
extent that the agreement covers information that is finally determined under Subsection (b-2)
to not be confidential under law.
(b-2) The member, committee, or agency of the legislature may seek a decision from the attorney
general about the matter. The attorney general by rule shall establish procedures and deadlines
for receiving information necessary to decide the matter and briefs from the requestor, the
governmental body, and any other interested person. The attorney general shall promptly
render a decision requested under this subsection, determining whether the information
covered by the confidentiality agreement is confidential under law, not later than the 45th
business day after the date the attorney general received the request for a decision under this
subsection. The attorney general shall issue a written decision on the matter and provide a
copy of the decision to the requestor, the governmental body, and any interested person who
submitted necessary information or a brief to the attorney general about the matter. The
requestor or the governmental body may appeal a decision of the attorney general under this
subsection to a Travis County district court. A person may appeal a decision of the attorney
general under this subsection to a Travis County district court if the person claims a proprietary

183
Appendix 23
interest in the information affected by the decision or a privacy interest in the information that
a confidentiality law or judicial decision is designed to protect.
(c)
This section does not affect:

(1)
the right of an individual member, agency, or committee of the legislature to obtain

information from a governmental body under other law, including under the rules of
either house of the legislature;
(2)
the procedures under which the information is obtained under other law; or
(3)
the use that may be made of the information obtained under other law.
552.009.
(a)
Open Records Steering Committee: Advice to Attorney General; Electronic

Availability of Public Information
The open records steering committee is composed of two representatives of the attorney
generals office and:
(1)
a representative of each of the following, appointed by its governing entity:

(A) the comptrollers office;
(B) the Department of Public Safety;
(C) the Department of Information Resources; and
(D) the Texas State Library and Archives Commission;
(2)
five public members, appointed by the attorney general; and
(3)
a representative of each of the following types of local governments, appointed by the

attorney general:
(A) a municipality;
(B) a county; and
(C) a school district.
(b)
The representative of the attorney general designated by the attorney general is the presiding
officer of the committee. The committee shall meet as prescribed by committee procedures
or at the call of the presiding officer.
(c)
The committee shall advise the attorney general regarding the office of the attorney generals
performance of its duties under Sections 552.010, 552.205, 552.262, 552.269, and 552.274.

184
Appendix 23
(d)
The members of the committee who represent state governmental bodies and the public
members of the committee shall periodically study and determine the types of public
information for which it would be useful to the public or cost-effective for the government if
the type of information were made available by state governmental bodies by means of the
Internet or another electronic format. The committee shall report its findings and
recommendations to the governor, the presiding officer of each house of the legislature, and
the budget committee and state affairs committee of each house of the legislature.
(e)
Chapter 2110 does not apply to the size, composition, or duration of the committee. Chapter
2110 applies to the reimbursement of a public members expenses related to service on the
committee. Any reimbursement of the expenses of a member who represents a state or local
governmental body may be paid only from funds available to the state or local governmental
body the member represents.
552.010.
(a)
State Governmental Bodies: Fiscal and Other Information Relating to Making

Information Accessible
Each state governmental body shall report to the attorney general the information the attorney
general requires regarding:
(1)
the number and nature of requests for information the state governmental body
processes under this chapter in the period covered by the report; and
(2)
the cost to the state governmental body in that period in terms of capital expenditures
and personnel time of:
(A) responding to requests for information under this chapter; and
(B) making information available to the public by means of the Internet or another
electronic format.
(b)
(c)
The attorney general shall design and phase in the reporting requirements in a way that:
(1)
minimizes the reporting burden on state governmental bodies; and
(2)
allows the legislature and state governmental bodies to estimate the extent to which it
is cost-effective for state government, and if possible the extent to which it is costeffective or useful for members of the public, to make information available to the
public by means of the Internet or another electronic format as a supplement or
alternative to publicizing the information only in other ways or making the information
available only in response to requests made under this chapter.
The attorney general shall share the information reported under this section with the open
records steering committee.

185
Appendix 23
552.011.
Uniformity
The attorney general shall maintain uniformity in the application, operation, and interpretation of this
chapter. To perform this duty, the attorney general may prepare, distribute, and publish any
materials, including detailed and comprehensive written decisions and opinions, that relate to or are
based on this chapter.
552.012.
(a)
(b)
Open Records Training
This section applies to an elected or appointed public official who is:

(1)
a member of a multimember governmental body;
(2)
the governing officer of a governmental body that is headed by a single officer rather
than by a multimember governing body; or
(3)
the officer for public information of a governmental body, without regard to whether
the officer is elected or appointed to a specific term.
Each public official shall complete a course of training of not less than one and not more than
two hours regarding the responsibilities of the governmental body with which the official
serves and its officers and employees under this chapter not later than the 90th day after the
date the public official:
(1)
takes the oath of office, if the person is required to take an oath of office to assume the
persons duties as a public official; or
(2)
otherwise assumes the persons duties as a public official, if the person is not required to
take an oath of office to assume the persons duties.
(c) A public official may designate a public information coordinator to satisfy the training
requirements of this section for the public official if the public information coordinator is
primarily responsible for administering the responsibilities of the public official or governmental
body under this chapter. Designation of a public information coordinator under this subsection
does not relieve a public official from the duty to comply with any other requirement of this
chapter that applies to the public official. The designated public information coordinator shall
complete the training course regarding the responsibilities of the governmental body with which
the coordinator serves and of its officers and employees under this chapter not later than the 90th
day after the date the coordinator assumes the persons duties as coordinator.
(d) The attorney general shall ensure that the training is made available. The office of the attorney
general may provide the training and may also approve any acceptable course of training offered
by a governmental body or other entity. The attorney general shall ensure that at least one course
of training approved or provided by the attorney general is available on videotape or a
functionally similar and widely available medium at no cost. The training must include
instruction in:

186
Appendix 23
(1)
the general background of the legal requirements for open records and public information;
(2)
the applicability of this chapter to governmental bodies;
(3)
procedures and requirements regarding complying with a request for information under this
chapter;
(4)
the role of the attorney general under this chapter; and
(5)
penalties and other consequences for failure to comply with this chapter.
(e) The office of the attorney general or other entity providing the training shall provide a certificate
of course completion to persons who complete the training required by this section. A
governmental body shall maintain and make available for public inspection the record of its
public officials or, if applicable, the public information coordinators completion of the training.
(f) Completing the required training as a public official of the governmental body satisfies the
requirements of this section with regard to the public officials service on a committee or
subcommittee of the governmental body and the public officials ex officio service on any other
governmental body.
(g) The training required by this section may be used to satisfy any corresponding training
requirements concerning this chapter or open records required by law for a public official or
public information coordinator. The attorney general shall attempt to coordinate the training
required by this section with training required by other law to the extent practicable.
(h) A certificate of course completion is admissible as evidence in a criminal prosecution under this
chapter. However, evidence that a defendant completed a course of training offered under this
section is not prima facie evidence that the defendant knowingly violated this chapter.
SUBCHAPTER B. RIGHT OF ACCESS TO PUBLIC INFORMATION
552.021.
Availability of Public Information
Public information is available to the public at a minimum during the normal business hours of the
governmental body.
552.0215. Right of Access to Certain Information After 75 Years
(a) Except as provided by Section 552.147, the confidentiality provisions of this chapter, or other
law, information that is not confidential but is excepted from required disclosure under
Subchapter C is public information and is available to the public on or after the 75th anniversary
of the date the information was originally created or received by the governmental body.
(b) This section does not limit the authority of a governmental body to establish retention periods
for records under applicable law.

187
Appendix 23
552.022.
Categories of Public Information; Examples
(a) Without limiting the amount or kind of information that is public information under this chapter,
the following categories of information are public information and not excepted from required
disclosure unless made confidential under this chapter or other law:
(1)
a completed report, audit, evaluation, or investigation made of, for, or by a governmental

body, except as provided by Section 552.108;
(2)
the name, sex, ethnicity, salary, title, and dates of employment of each employee and
officer of a governmental body;
(3)
information in an account, voucher, or contract relating to the receipt or expenditure of

public or other funds by a governmental body;
(4)
the name of each official and the final record of voting on all proceedings in a
governmental body;
(5)
all working papers, research material, and information used to estimate the need for or
expenditure of public funds or taxes by a governmental body, on completion of the
estimate;
(6)
the name, place of business, and the name of the municipality to which local sales and use
taxes are credited, if any, for the named person, of a person reporting or paying sales and
use taxes under Chapter 151, Tax Code;
(7)
a description of an agencys central and field organizations, including:

(A) the established places at which the public may obtain information, submit
information or requests, or obtain decisions;
(B) the employees from whom the public may obtain information, submit information or
requests, or obtain decisions;
(C) in the case of a uniformed service, the members from whom the public may obtain
information, submit information or requests, or obtain decisions; and
(D) the methods by which the public may obtain information, submit information or
requests, or obtain decisions;
(8)
a statement of the general course and method by which an agencys functions are channeled
and determined, including the nature and requirements of all formal and informal policies
and procedures;
(9)
a rule of procedure, a description of forms available or the places at which forms may be
obtained, and instructions relating to the scope and content of all papers, reports, or
examinations;
188
Appendix 23
(10) a substantive rule of general applicability adopted or issued by an agency as authorized by

law, and a statement of general policy or interpretation of general applicability formulated
and adopted by an agency;
(11) each amendment, revision, or repeal of information described by Subdivisions (7)(10);
(12) final opinions, including concurring and dissenting opinions, and orders issued in the
adjudication of cases;
(13) a policy statement or interpretation that has been adopted or issued by an agency;
(14) administrative staff manuals and instructions to staff that affect a member of the public;
(15) information regarded as open to the public under an agencys policies;
(16) information that is in a bill for attorneys fees and that is not privileged under the
attorney-client privilege;
(17) information that is also contained in a public court record; and
(18) a settlement agreement to which a governmental body is a party.
(b) A court in this state may not order a governmental body or an officer for public information to
withhold from public inspection any category of public information described by Subsection (a)
or to not produce the category of public information for inspection or duplication, unless the
category of information is confidential under this chapter or other law.
552.0221. Employee or Trustee of Public Employee Pension System
(a) Information concerning the employment of an employee of a public employee pension system
is public information under the terms of this chapter, including information concerning the
income, salary, benefits, and bonuses received from the pension system by the employee in the
persons capacity as an employee of the system, and is not removed from the application of this
chapter, made confidential, or otherwise excepted from the requirements of Section 552.021 by
any statute intended to protect the records of persons as members, beneficiaries, or retirees of a
public employee pension system in their capacity as such.
(b) Information concerning the service of a trustee of a public employee pension system is public
information under the terms of this chapter, including information concerning the income, salary,
benefits, and bonuses received from the pension system by the trustee in the persons capacity
as a trustee of the system, and is not removed from the application of this chapter, made
confidential, or otherwise excepted from the requirements of Section 552.021 by any statute
intended to protect the records of persons as members, beneficiaries, or retirees of a public
employee pension system in their capacity as such.
(c) Information subject to Subsections (a) and (b) must be released only to the extent the information
is not excepted from required disclosure under this subchapter or Subchapter C.
189
Appendix 23
(d) For purposes of this section, benefits does not include pension benefits provided to an
individual by a pension system under the statutory plan covering the individual as a member,
beneficiary, or retiree of the pension system.
552.0225. Right of Access to Investment Information
(a) Under the fundamental philosophy of American government described by Section 552.001, it is
the policy of this state that investments of government are investments of and for the people and
the people are entitled to information regarding those investments. The provisions of this section
shall be liberally construed to implement this policy.
(b) The following categories of information held by a governmental body relating to its investments
are public information and not excepted from disclosure under this chapter:
(1)
the name of any fund or investment entity the governmental body is or has invested in;
(2)
the date that a fund or investment entity described by Subdivision (1) was established;
(3)
each date the governmental body invested in a fund or investment entity described by
Subdivision (1);
(4)
the amount of money, expressed in dollars, the governmental body has committed to a fund
or investment entity;
(5)
the amount of money, expressed in dollars, the governmental body is investing or has
invested in any fund or investment entity;
(6)
the total amount of money, expressed in dollars, the governmental body received from any
fund or investment entity in connection with an investment;
(7)
the internal rate of return or other standard used by a governmental body in connection with
each fund or investment entity it is or has invested in and the date on which the return or
other standard was calculated;
(8)
the remaining value of any fund or investment entity the governmental body is or has
invested in;
(9)
the total amount of fees, including expenses, charges, and other compensation, assessed
against the governmental body by, or paid by the governmental body to, any fund or
investment entity or principal of any fund or investment entity in which the governmental
body is or has invested;
(10) the names of the principals responsible for managing any fund or investment entity in
which the governmental body is or has invested;
(11) each recusal filed by a member of the governing board in connection with a deliberation
or action of the governmental body relating to an investment;
190
Appendix 23
(12) a description of all of the types of businesses a governmental body is or has invested in
through a fund or investment entity;
(13) the minutes and audio or video recordings of each open portion of a meeting of the
governmental body at which an item described by this subsection was discussed;
(14) the governmental bodys percentage ownership interest in a fund or investment entity the
governmental body is or has invested in;
(15) any annual ethics disclosure report submitted to the governmental body by a fund or
investment entity the governmental body is or has invested in; and
(16) the cash-on-cash return realized by the governmental body for a fund or investment entity
the governmental body is or has invested in.
(c) This section does not apply to the Texas Mutual Insurance Company or a successor to the
company.
(d) This section does not apply to a private investment funds investment in restricted securities, as
defined in Section 552.143.
552.023.
Special Right of Access to Confidential Information
(a) A person or a persons authorized representative has a special right of access, beyond the right
of the general public, to information held by a governmental body that relates to the person and
that is protected from public disclosure by laws intended to protect that persons privacy
interests.
(b) A governmental body may not deny access to information to the person, or the persons
representative, to whom the information relates on the grounds that the information is considered
confidential by privacy principles under this chapter but may assert as grounds for denial of
access other provisions of this chapter or other law that are not intended to protect the persons
privacy interests.
(c) A release of information under Subsections (a) and (b) is not an offense under Section 552.352.
(d) A person who receives information under this section may disclose the information to others only
to the extent consistent with the authorized purposes for which consent to release the information
was obtained.
(e) Access to information under this section shall be provided in the manner prescribed by Sections
552.229 and 552.307.
552.024.
Electing to Disclose Address and Telephone Number
(a) Except as provided by Subsection (a-1), each employee or official of a governmental body and
each former employee or official of a governmental body shall choose whether to allow public
191
Appendix 23
access to the information in the custody of the governmental body that relates to the persons
home address, home telephone number, emergency contact information, or social security
number, or that reveals whether the person has family members.
(a-1) A school district may not require an employee or former employee of the district to choose
whether to allow public access to the employees or former employees social security number.
(b) Each employee and official and each former employee and official shall state that persons
choice under Subsection (a) to the main personnel officer of the governmental body in a signed
writing not later than the 14th day after the date on which:
(1)
the employee begins employment with the governmental body;
(2)
the official is elected or appointed; or
(3)
the former employee or official ends service with the governmental body.
(c) If the employee or official or former employee or official chooses not to allow public access to
the information:
(1)
the information is protected under Subchapter C; and
(2)
the governmental body may redact the information from any information the governmental
body discloses under Section 552.021 without the necessity of requesting a decision from
the attorney general under Subchapter G.
(c-1) If, under Subsection (c)(2), a governmental body redacts or withholds information without
requesting a decision from the attorney general about whether the information may be redacted
or withheld, the requestor is entitled to seek a decision from the attorney general about the
matter. The attorney general by rule shall establish procedures and deadlines for receiving
information necessary to decide the matter and briefs from the requestor, the governmental
body, and any other interested person. The attorney general shall promptly render a decision
requested under this subsection, determining whether the redacted or withheld information was
excepted from required disclosure to the requestor, not later than the 45th business day after
the date the attorney general received the request for a decision under this subsection. The
attorney general shall issue a written decision on the matter and provide a copy of the decision
to the requestor, the governmental body, and any interested person who submitted necessary
information or a brief to the attorney general about the matter. The requestor or the
governmental body may appeal a decision of the attorney general under this subsection to a
Travis County district court.
(c-2) A governmental body that redacts or withholds information under Subsection (c)(2) shall
provide the following information to the requestor on a form prescribed by the attorney
general:
(1)
a description of the redacted or withheld information;

192
Appendix 23
(2)
a citation to this section; and
(3)
instructions regarding how the requestor may seek a decision from the attorney general
regarding whether the redacted or withheld information is excepted from required
disclosure.
(d) If an employee or official or a former employee or official fails to state the persons choice
within the period established by this section, the information is subject to public access.
(e) An employee or official or former employee or official of a governmental body who wishes to
close or open public access to the information may request in writing that the main personnel
officer of the governmental body close or open access.
(f) This section does not apply to a person to whom Section 552.1175 applies.
552.025.
Tax Rulings and Opinions
(a) A governmental body with taxing authority that issues a written determination letter, technical
advice memorandum, or ruling that concerns a tax matter shall index the letter, memorandum,
or ruling by subject matter.
(b) On request, the governmental body shall make the index prepared under Subsection (a) and the
document itself available to the public, subject to the provisions of this chapter.
(c) Subchapter C does not authorize withholding from the public or limiting the availability to the
public of a written determination letter, technical advice memorandum, or ruling that concerns
a tax matter and that is issued by a governmental body with taxing authority.
552.026.
Education Records
This chapter does not require the release of information contained in education records of an
educational agency or institution, except in conformity with the Family Educational Rights and
Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g.
552.027.
Exception: Information Available Commercially; Resource Material
(a) A governmental body is not required under this chapter to allow the inspection of or to provide
a copy of information in a commercial book or publication purchased or acquired by the
governmental body for research purposes if the book or publication is commercially available
to the public.
(b) Although information in a book or publication may be made available to the public as a resource
material, such as a library book, a governmental body is not required to make a copy of the
information in response to a request for public information.
(c) A governmental body shall allow the inspection of information in a book or publication that is
made part of, incorporated into, or referred to in a rule or policy of a governmental body.
193
Appendix 23
552.028.
Request for Information from Incarcerated Individual
(a) 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 individuals attorney when the attorney is
requesting information that is subject to disclosure under this chapter.
(b) This section does not prohibit a governmental body from disclosing to an individual described
by Subsection (a)(1), or that individuals agent, information held by the governmental body
pertaining to that individual.
(c) In this section, correctional facility means:
(1)
a secure correctional facility, as defined by Section 1.07, Penal Code;
(2)
a secure correctional facility and a secure detention facility, as defined by Section 51.02,
Family Code; and
(3)
a place designated by the law of this state, another state, or the federal government for the
confinement of a person arrested for, charged with, or convicted of a criminal offense.
552.029.
Right of Access to Certain Information Relating to Inmate of Department of

Criminal Justice
Notwithstanding Section 508.313 or 552.134, the following information about an inmate who is
confined in a facility operated by or under a contract with the Texas Department of Criminal Justice
is subject to required disclosure under Section 552.021:
(1)
the inmates name, identification number, age, birthplace, department photograph, physical
description, or general state of health or the nature of an injury to or critical illness suffered
by the inmate;
(2)
the inmates assigned unit or the date on which the unit received the inmate, unless
disclosure of the information would violate federal law relating to the confidentiality of
substance abuse treatment;
(3)
the offense for which the inmate was convicted or the judgment and sentence for that
offense;
(4)
the county and court in which the inmate was convicted;
(5)
the inmates earliest or latest possible release dates;
(6)
the inmates parole date or earliest possible parole date;

194
Appendix 23
(7)
any prior confinement of the inmate by the Texas Department of Criminal Justice or its
predecessor; or
(8)
basic information regarding the death of an inmate in custody, an incident involving the
use of force, or an alleged crime involving the inmate.
SUBCHAPTER C. INFORMATION EXCEPTED FROM REQUIRED DISCLOSURE

552.101.
Exception: Confidential Information
Information is excepted from the requirements of Section 552.021 if it is information considered to

be confidential by law, either constitutional, statutory, or by judicial decision.
552.102.
Exception: Confidentiality of Certain Personnel Information
(a) Information is excepted from the requirements of Section 552.021 if it is information in a

personnel file, the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy, except that all information in the personnel file of an employee of a
governmental body is to be made available to that employee or the employees designated
representative as public information is made available under this chapter. The exception to
public disclosure created by this subsection is in addition to any exception created by Section
552.024. Public access to personnel information covered by Section 552.024 is denied to the
extent provided by that section.
(b) Information is excepted from the requirements of Section 552.021 if it is a transcript from an
institution of higher education maintained in the personnel file of a professional public school
employee, except that this section does not exempt from disclosure the degree obtained or the
curriculum on a transcript in the personnel file of the employee.
552.103.
Exception: Litigation or Settlement Negotiations Involving the State or a Political

Subdivision
(a) Information is excepted from the requirements of Section 552.021 if it is information relating
to litigation of a civil or criminal nature to which the state or a political subdivision is or may be
a party or to which an officer or employee of the state or a political subdivision, as a consequence
of the persons office or employment, is or may be a party.
(b) For purposes of this section, the state or a political subdivision is considered to be a party to
litigation of a criminal nature until the applicable statute of limitations has expired or until the
defendant has exhausted all appellate and postconviction remedies in state and federal court.
(c) Information relating to litigation involving a governmental body or an officer or employee of a
governmental body is excepted from disclosure under Subsection (a) only if the litigation is
pending or reasonably anticipated on the date that the requestor applies to the officer for public
information for access to or duplication of the information.

195
Appendix 23
552.104.
Exception: Information Related to Competition or Bidding
(a) Information is excepted from the requirements of Section 552.021 if it is information that, if
released, would give advantage to a competitor or bidder.
(b) The requirement of Section 552.022 that a category of information listed under Section
552.022(a) is public information and not excepted from required disclosure under this chapter
unless expressly confidential under law does not apply to information that is excepted from
required disclosure under this section.
552.105.
Exception: Information Related to Location or Price of Property
Information is excepted from the requirements of Section 552.021 if it is information relating to:
(1)
the location of real or personal property for a public purpose prior to public announcement
of the project; or
(2)
appraisals or purchase price of real or personal property for a public purpose prior to the
formal award of contracts for the property.
552.106.
Exception: Certain Legislative Documents
(a) A draft or working paper involved in the preparation of proposed legislation is excepted from
the requirements of Section 552.021.
(b) An internal bill analysis or working paper prepared by the governors office for the purpose of
evaluating proposed legislation is excepted from the requirements of Section 552.021.
552.107.
Exception: Certain Legal Matters
Information is excepted from the requirements of Section 552.021 if:

(1)
it is information that the attorney general or an 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; or
(2)
a court by order has prohibited disclosure of the information.
552.108.
Exception:
Information
Certain Law Enforcement, Corrections, and Prosecutorial
(a) Information held by a law enforcement agency or prosecutor that deals with the detection,
investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:
(1)
release of the information would interfere with the detection, investigation, or prosecution
of crime;

196
Appendix 23
(2)
it is information that deals with the detection, investigation, or prosecution of crime only
in relation to an investigation that did not result in conviction or deferred adjudication;
(3)
it is information relating to a threat against a peace officer or detention officer collected or

disseminated under Section 411.048; or
(4)
it is information that:
(A) is prepared by an attorney representing the state in anticipation of or in the course of
preparing for criminal litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney representing the
state.
(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for
internal use in matters relating to law enforcement or prosecution is excepted from the
requirements of Section 552.021 if:
(1)
release of the internal record or notation would interfere with law enforcement or
prosecution;
(2)
the internal record or notation relates to law enforcement only in relation to an

investigation that did not result in conviction or deferred adjudication; or
(3)
the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of
preparing for criminal litigation; or
(B) reflects the mental impressions or legal reasoning of an attorney representing the
state.
(c) This section does not except from the requirements of Section 552.021 information that is basic
information about an arrested person, an arrest, or a crime.
552.1085. Confidentiality of Sensitive Crime Scene Image
(a) In this section:
(1)
Deceased persons next of kin means:

(A) the surviving spouse of the deceased person;
(B) if there is no surviving spouse of the deceased, an adult child of the deceased person;
or

197
Appendix 23
(C) if there is no surviving spouse or adult child of the deceased, a parent of the deceased
person.
(2)
Defendant means a person being prosecuted for the death of the deceased person or a
person convicted of an offense in relation to that death and appealing that conviction.
(3)
Expressive work means:

(A) a fictional or nonfictional entertainment, dramatic, literary, or musical work that is
a play, book, article, musical composition, audiovisual work, radio or television
program, work of art, or work of political, educational, or newsworthy value;
(B) a work the primary function of which is the delivery of news, information, current
events, or other matters of public interest or concern; or
(C) an advertisement or commercial announcement of a work described by Paragraph (A)
or (B).
(4)
Local governmental entity means a county, municipality, school district, charter school,
junior college district, or other political subdivision of this state.
(5)
Public or private institution of higher education means:

(A) an institution of higher education, as defined by Section 61.003, Education Code; or
(B) a private or independent institution of higher education, as defined by Section 61.003,
Education Code.
(6)
Sensitive crime scene image means a photograph or video recording taken at a crime
scene, contained in or part of a closed criminal case, that depicts a deceased person in a
state of dismemberment, decapitation, or similar mutilation or that depicts the deceased
persons genitalia.
(7)
State agency means a department, commission, board, office, or other agency that is a
part of state government and that is created by the constitution or a statute of this state.
The term includes an institution of higher education as defined by Section 61.003,
Education Code.
(b) For purposes of this section, an Internet website, the primary function of which is not the
delivery of news, information, current events, or other matters of public interest or concern, is
not an expressive work.
(c) A sensitive crime scene image in the custody of a governmental body is confidential and
excepted from the requirements of Section 552.021 and a governmental body may not permit a
person to view or copy the image except as provided by this section. This section applies to any
sensitive crime scene image regardless of the date that the image was taken or recorded.

198
Appendix 23
(d) Notwithstanding Subsection (c) and subject to Subsection (e), the following persons may view
or copy information that constitutes a sensitive crime scene image from a governmental body:
(1)
the deceased persons next of kin;
(2)
a person authorized in writing by the deceased persons next of kin;
(3)
a defendant or the defendants attorney;
(4)
a person who establishes to the governmental body an interest in a sensitive crime scene
image that is based on, connected with, or in support of the creation, in any medium, of an
expressive work;
(5)
a person performing bona fide research sponsored by a public or private institution of

higher education with approval of a supervisor of the research or a supervising faculty
member;
(6)
a state agency;
(7)
an agency of the federal government; or
(8)
a local governmental entity.
(e) This section does not prohibit a governmental body from asserting an exception to disclosure of
a sensitive crime scene image to a person identified in Subsection (d) on the grounds that the
image is excepted from the requirements of Section 552.021 under another provision of this
chapter or another law.
(f) Not later than the 10th business day after the date a governmental body receives a request for a
sensitive crime scene image from a person described by Subsection (d)(4) or (5), the
governmental body shall notify the deceased persons next of kin of the request in writing. The
notice must be sent to the next of kins last known address.
(g) A governmental body that receives a request for information that constitutes a sensitive crime
scene image shall allow a person described in Subsection (d) to view or copy the image not later
than the 10th business day after the date the governmental body receives the request unless the
governmental body files a request for an attorney general decision under Subchapter G regarding
whether an exception to public disclosure applies to the information.
552.109.
Exception: Confidentiality of Certain Private Communications of an Elected

Office Holder
Private correspondence or communications of an elected office holder relating to matters the

disclosure of which would constitute an invasion of privacy are excepted from the requirements of
Section 552.021.

199
Appendix 23
552.110.
Exception: Confidentiality of Trade Secrets; Confidentiality of Certain

Commercial or Financial Information
(a) A trade secret obtained from a person and privileged or confidential by statute or judicial
decision is excepted from the requirements of Section 552.021.
(b) Commercial or financial information for which it is demonstrated based on specific factual
evidence that disclosure would cause substantial competitive harm to the person from whom the
information was obtained is excepted from the requirements of Section 552.021.
552.111.
Exception: Agency Memoranda
An interagency or intraagency memorandum or letter that would not be available by law to a party
in litigation with the agency is excepted from the requirements of Section 552.021.
552.112.
Exception: Certain Information Relating to Regulation of Financial Institutions

or Securities
(a) Information is excepted from the requirements of Section 552.021 if it is information contained
in or relating to examination, operating, or condition reports prepared by or for an agency
responsible for the regulation or supervision of financial institutions or securities, or both.
(b) In this section, securities has the meaning assigned by The Securities Act (Article 581-1 et
seq., Vernons Texas Civil Statutes).
(c) Information is excepted from the requirements of Section 552.021 if it is information submitted
by an individual or other entity to the Texas Legislative Council, or to any state agency or
department overseen by the Finance Commission of Texas and the information has been or will
be sent to the Texas Legislative Council, for the purpose of performing a statistical or
demographic analysis of information subject to Section 323.020. However, this subsection does
not except from the requirements of Section 552.021 information that does not identify or tend
to identify an individual or other entity and that is subject to required public disclosure under
Section 323.020(e).
552.113.
Exception: Confidentiality of Geological or Geophysical Information
(a) Information is excepted from the requirements of Section 552.021 if it is:

(1)
an electric log confidential under Subchapter M, Chapter 91, Natural Resources Code;
(2)
geological or geophysical information or data, including maps concerning wells, except

information filed in connection with an application or proceeding before an agency; or
(3)
confidential under Subsections (c) through (f).

200
Appendix 23
(b) Information that is shown to or examined by an employee of the General Land Office, but not
retained in the land office, is not considered to be filed with the land office.
(c) In this section:
(1)
Confidential material includes all well logs, geological, geophysical, geochemical, and
other similar data, including maps and other interpretations of the material filed in the
General Land Office:
(A) in connection with any administrative application or proceeding before the land
commissioner, the school land board, any board for lease, or the commissioners or
boards staff; or
(B) in compliance with the requirements of any law, rule, lease, or agreement.
(2)
Electric logs has the same meaning as it has in Chapter 91, Natural Resources Code.
(3)
Administrative applications and administrative proceedings include applications for

pooling or unitization, review of shut-in royalty payments, review of leases or other
agreements to determine their validity, review of any plan of operations, review of the
obligation to drill offset wells, or an application to pay compensatory royalty.
(d) Confidential material, except electric logs, filed in the General Land Office on or after
September 1, 1985, is public information and is available to the public under Section 552.021
on and after the later of:
(1)
five years from the filing date of the confidential material; or
(2)
one year from the expiration, termination, or forfeiture of the lease in connection with
which the confidential material was filed.
(e) Electric logs filed in the General Land Office on or after September 1, 1985, are either public
information or confidential material to the same extent and for the same periods provided for the
same logs by Chapter 91, Natural Resources Code. A person may request that an electric log that
has been filed in the General Land Office be made confidential by filing with the land office a
copy of the written request for confidentiality made to the Railroad Commission of Texas for the
same log.
(f) The following are public information:
(1)
electric logs filed in the General Land Office before September 1, 1985; and
(2)
confidential material, except electric logs, filed in the General Land Office before
September 1, 1985, provided, that Subsection (d) governs the disclosure of that
confidential material filed in connection with a lease that is a valid and subsisting lease on
September 1, 1995.

201
Appendix 23
(g) Confidential material may be disclosed at any time if the person filing the material, or the
persons successor in interest in the lease in connection with which the confidential material was
filed, consents in writing to its release. A party consenting to the disclosure of confidential
material may restrict the manner of disclosure and the person or persons to whom the disclosure
may be made.
(h) Notwithstanding the confidential nature of the material described in this section, the material
may be used by the General Land Office in the enforcement, by administrative proceeding or
litigation, of the laws governing the sale and lease of public lands and minerals, the regulations
of the land office, the school land board, or of any board for lease, or the terms of any lease,
pooling or unitization agreement, or any other agreement or grant.
(i) An administrative hearings officer may order that confidential material introduced in an
administrative proceeding remain confidential until the proceeding is finally concluded, or for
the period provided in Subsection (d), whichever is later.
(j) Confidential material examined by an administrative hearings officer during the course of an
administrative proceeding for the purpose of determining its admissibility as evidence shall not
be considered to have been filed in the General Land Office to the extent that the confidential
material is not introduced into evidence at the proceeding.
(k) This section does not prevent a person from asserting that any confidential material is exempt
from disclosure as a trade secret or commercial information under Section 552.110 or under any
other basis permitted by law.
552.114.
Exception: Confidentiality of Student Records
(a) Information is excepted from the requirements of Section 552.021 if it is information in a student
record at an educational institution funded wholly or partly by state revenue.
(b) A record under Subsection (a) shall be made available on the request of:
(1)
educational institution personnel;
(2)
the student involved or the students parent, legal guardian, or spouse; or
(3)
a person conducting a child abuse investigation required by Subchapter D, Chapter 261,

Family Code.
552.115.
Exception: Confidentiality of Birth and Death Records
(a) A birth or death record maintained by the bureau of vital statistics of the Texas Department of
Health or a local registration official is excepted from the requirements of Section 552.021,
except that:

202
Appendix 23
(1)
a birth record is public information and available to the public on and after the 75th
anniversary of the date of birth as shown on the record filed with the bureau of vital
statistics or local registration official;
(2)
a death record is public information and available to the public on and after the 25th
anniversary of the date of death as shown on the record filed with the bureau of vital
statistics or local registration official;
(3)
a general birth index or a general death index established or maintained by the bureau of
vital statistics or a local registration official is public information and available to the
public to the extent the index relates to a birth record or death record that is public
information and available to the public under Subdivision (1) or (2);
(4)
a summary birth index or a summary death index prepared or maintained by the bureau of
vital statistics or a local registration official is public information and available to the
public; and
(5)
a birth or death record is available to the chief executive officer of a home-rule

municipality or the officers designee if:
(A) the record is used only to identify a property owner or other person to whom the
municipality is required to give notice when enforcing a state statute or an ordinance;
(B) the municipality has exercised due diligence in the manner described by Section
54.035(e), Local Government Code, to identify the person; and
(C) the officer or designee signs a confidentiality agreement that requires that:
(i)
the information not be disclosed outside the office of the officer or designee, or
within the office for a purpose other than the purpose described by Paragraph
(A);
(ii)
(iii) the information be kept securely; and

(iv) the number of copies made of the information or the notes taken from the
information that implicate the confidential nature of the information be
controlled, with all copies or notes that are not destroyed or returned remaining
confidential and subject to the confidentiality agreement.
(b) Notwithstanding Subsection (a), a general birth index or a summary birth index is not public
information and is not available to the public if:
(1)
the fact of an adoption or paternity determination can be revealed by the index; or

203
Appendix 23
(2)
the index contains specific identifying information relating to the parents of a child who
is the subject of an adoption placement.
(c) Subsection (a)(1) does not apply to the microfilming agreement entered into by the Genealogical
Society of Utah, a nonprofit corporation organized under the laws of the State of Utah, and the
Archives and Information Services Division of the Texas State Library and Archives
Commission.
(d) For the purposes of fulfilling the terms of the agreement in Subsection (c), the Genealogical
Society of Utah shall have access to birth records on and after the 50th anniversary of the date
of birth as shown on the record filed with the bureau of vital statistics or local registration
official, but such birth records shall not be made available to the public until the 75th anniversary
of the date of birth as shown on the record.
552.116.
Exception: Audit Working Papers
(a) An audit working paper of an audit of the state auditor or the auditor of a state agency, an
institution of higher education as defined by Section 61.003, Education Code, a county, a
municipality, a school district, a hospital district, or a joint board operating under Section 22.074,
Transportation Code, including any audit relating to the criminal history background check of
a public school employee, is excepted from the requirements of Section 552.021. If information
in an audit working paper is also maintained in another record, that other record is not excepted
from the requirements of Section 552.021 by this section.
(b) In this section:
(1)
Audit means an audit authorized or required by a statute of this state or the United States,
the charter or an ordinance of a municipality, an order of the commissioners court of a
county, the bylaws adopted by or other action of the governing board of a hospital district,
a resolution or other action of a board of trustees of a school district, including an audit by
the district relating to the criminal history background check of a public school employee,
or a resolution or other action of a joint board described by Subsection (a) and includes an
investigation.
(2)
Audit working paper includes all information, documentary or otherwise, prepared or

maintained in conducting an audit or preparing an audit report, including:
(A) intra-agency and interagency communications; and
(B) drafts of the audit report or portions of those drafts.
552.117.
Exception: Confidentiality of Certain Addresses, Telephone Numbers, Social

Security Numbers, and Personal Family Information
(a) Information is excepted from the requirements of Section 552.021 if it is information that relates
to the home address, home telephone number, emergency contact information, or social security
number of the following person or that reveals whether the person has family members:
204
Appendix 23
(1)
a current or former official or employee of a governmental body, except as otherwise

provided by Section 552.024;
(2)
a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer
commissioned under Section 51.212, Education Code, regardless of whether the officer
complies with Section 552.024 or 552.1175, as applicable;
(3)
a current or former employee of the Texas Department of Criminal Justice or of the

predecessor in function of the department or any division of the department, regardless of
whether the current or former employee complies with Section 552.1175;
(4)
a peace officer as defined by Article 2.12, Code of Criminal Procedure, or other law, a
reserve law enforcement officer, a commissioned deputy game warden, or a corrections
officer in a municipal, county, or state penal institution in this state who was killed in the
line of duty, regardless of whether the deceased complied with Section 552.024 or
552.1175;
(5)
a commissioned security officer as defined by Section 1702.002, Occupations Code,

regardless of whether the officer complies with Section 552.024 or 552.1175, as applicable;
(6)
an officer or employee of a community supervision and corrections department established

under Chapter 76 who performs a duty described by Section 76.004(b), regardless of
whether the officer or employee complies with Section 552.024 or 552.1175;
(7)
a current or former employee of the office of the attorney general who is or was assigned
to a division of that office the duties of which involve law enforcement, regardless of
whether the current or former employee complies with Section 552.024 or 552.1175;
(8)
a current or former employee of the Texas Juvenile Justice Department or of the

predecessors in function of the department, regardless of whether the current or former
employee complies with Section 552.1175;
(9)
a juvenile probation or supervision officer certified by the Texas Juvenile Justice

Department, or the predecessors in function of the department, under Title 12, Human
Resources Code; or
(10) employees of a juvenile justice program or facility, as those terms are defined by
Section 261.405, Family Code.

205
Appendix 23
552.1175. Confidentiality of Certain Identifying Information of Peace Officers, County

Jailers, Security Officers, Employees of the Texas Department of Criminal Justice
or a Prosecutors Office, and Federal and State Judges.
552.1175. Confidentiality of Certain Personal Information of Peace Officers, County Jailers,
Security Officers, and Employees of Certain Criminal or Juvenile Justice
Agencies or Offices
NOTE: The Eighty-third Legislature passed two different bills, House Bills 1632 and 2733,
amending section 552.1175.
(a)
This section applies only to:

(1) peace officers as defined by Article 2.12, Code of Criminal Procedure;
(2) county jailers as defined by Section 1701.001, Occupations Code;
(3) current or former employees of the Texas Department of Criminal Justice or of the
predecessor in function of the department or any division of the department;
(4) commissioned security officers as defined by Section 1702.002, Occupations Code;
(5) employees of a district attorney, criminal district attorney, or county or municipal
attorney whose jurisdiction includes any criminal law or child protective services
matters;
(6) officers and employees of a community supervision and corrections department
established under Chapter 76 who perform a duty described by Section 76.004(b);
(7) criminal investigators of the United States as described by Article 2.122(a), Code of
Criminal Procedure;
(8) police officers and inspectors of the United States Federal Protective Service;
(9) current and former employees of the office of the attorney general who are or were
assigned to a division of that office the duties of which involve law enforcement;
(10) federal judges and state judges as defined by Section 13.0021, Election Code.
(10) juvenile probation and detention officers certified by the Texas Juvenile Justice
Human Resources Code;
(11) employees of a juvenile justice program or facility, as those terms are defined by
Section 261.405, Family Code; and

206
Appendix 23
(12) current or former employees of the Texas Juvenile Justice Department or the
predecessors in function of the department.
(b)
Information that relates to the home address, home telephone number, emergency contact
information, date of birth, or social security number of an individual to whom this section
applies, or that reveals whether the individual has family members is confidential and may
not be disclosed to the public under this chapter if the individual to whom the information
relates:
(2) notifies the governmental body of the individuals choice on a form provided by the
governmental body, accompanied by evidence of the individuals status.
(c)
A choice made under Subsection (b) remains valid until rescinded in writing by the
individual.
(d)
This section does not apply to information in the tax appraisal records of an appraisal
district to which Section 25.025, Tax Code, applies.
(e)
All documents filed with a county clerk and all documents filed with a district clerk are
exempt from this section.
(f)
A governmental body may redact information that must be withheld under Subsection (b)
from any information the governmental body discloses under Section 552.021 without the
necessity of requesting a decision from the attorney general under Subchapter G.
(g)
If, under Subsection (f), a governmental body redacts or withholds information without
requesting a decision from the attorney general about whether the information may be
redacted or withheld, the requestor is entitled to seek a decision from the attorney general
about the matter. The attorney general by rule shall establish procedures and deadlines for
receiving information necessary to decide the matter and briefs from the requestor, the
governmental body, and any other interested person. The attorney general shall promptly
render a decision requested under this subsection, determining whether the redacted or
withheld information was excepted from required disclosure to the requestor, not later than
the 45th business day after the date the attorney general received the request for a decision
under this subsection. The attorney general shall issue a written decision on the matter and
provide a copy of the decision to the requestor, the governmental body, and any interested
person who submitted necessary information or a brief to the attorney general about the
matter. The requestor or the governmental body may appeal a decision of the attorney
general under this subsection to a Travis County district court.
(h)
A governmental body that redacts or withholds information under Subsection (f) shall
provide the following information to the requestor on a form prescribed by the attorney
general:
207
Appendix 23

(3) instructions regarding how the requestor may seek a decision from the attorney general
disclosure.
552.1176. Confidentiality of Certain Information Maintained by State Bar
(a) Information that relates to the home address, home telephone number, electronic mail address,
social security number, or date of birth of a person licensed to practice law in this state that is
maintained under Chapter 81 is confidential and may not be disclosed to the public under this
chapter if the person to whom the information relates:
(1)
chooses to restrict public access to the information; and
(2)
notifies the State Bar of Texas of the persons choice, in writing or electronically, on a
form provided by the state bar.
(b) A choice made under Subsection (a) remains valid until rescinded in writing or electronically by
the person.
(c) All documents filed with a county clerk and all documents filed with a district clerk are exempt
from this section.
552.118.
Exception: Confidentiality of Official Prescription Program Information
Information is excepted from the requirements of Section 552.021 if it is:

(1)
information on or derived from an official prescription form or electronic prescription

record filed with the director of the Department of Public Safety under Section 481.075,
Health and Safety Code; or
(2)
other information collected under Section 481.075 of that code.
552.119.
Exception: Confidentiality of Certain Photographs of Peace Officers
(a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal
Procedure, the release of which would endanger the life or physical safety of the officer, is
excepted from the requirements of Section 552.021 unless:
(1)
the officer is under indictment or charged with an offense by information;
(2)
the officer is a party in a civil service hearing or a case in arbitration; or
(3)
the photograph is introduced as evidence in a judicial proceeding.

208
Appendix 23
(b) A photograph excepted from disclosure under Subsection (a) may be made public only if the
peace officer gives written consent to the disclosure.
552.120.
Exception: Confidentiality of Certain Rare Books and Original Manuscripts
A rare book or original manuscript that was not created or maintained in the conduct of official
business of a governmental body and that is held by a private or public archival and manuscript
repository for the purpose of historical research is excepted from the requirements of Section
552.021.
552.121.
Exception: Confidentiality of Certain Documents Held for Historical Research
An oral history interview, personal paper, unpublished letter, or organizational record of a

nongovernmental entity that was not created or maintained in the conduct of official business of a
governmental body and that is held by a private or public archival and manuscript repository for the
purpose of historical research is excepted from the requirements of Section 552.021 to the extent that
the archival and manuscript repository and the donor of the interview, paper, letter, or record agree
to limit disclosure of the item.
552.122.
Exception: Test Items
(a) A test item developed by an educational institution that is funded wholly or in part by state
revenue is excepted from the requirements of Section 552.021.
(b) A test item developed by a licensing agency or governmental body is excepted from the
552.123.
Exception: Confidentiality of Name of Applicant for Chief Executive Officer of

Institution of Higher Education
The name of an applicant for the position of chief executive officer of an institution of higher
education, and other information that would tend to identify the applicant, is excepted from the
requirements of Section 552.021, except that the governing body of the institution must give public
notice of the name or names of the finalists being considered for the position at least 21 days before
the date of the meeting at which final action or vote is to be taken on the employment of the person.
552.1235. Exception: Confidentiality of Identity of Private Donor to Institution of Higher
Education
(a) The name or other information that would tend to disclose the identity of a person, other than a
governmental body, who makes a gift, grant, or donation of money or property to an institution
of higher education or to another person with the intent that the money or property be transferred
to an institution of higher education is excepted from the requirements of Section 552.021.
(b) Subsection (a) does not except from required disclosure other information relating to gifts,
grants, and donations described by Subsection (a), including the amount or value of an individual
gift, grant, or donation.
209
Appendix 23
(c) In this section, institution of higher education has the meaning assigned by Section 61.003,
Education Code.
552.124.
Exception: Confidentiality of Records of Library or Library System
(a) A record of a library or library system, supported in whole or in part by public funds, that
identifies or serves to identify a person who requested, obtained, or used a library material or
service is excepted from the requirements of Section 552.021 unless the record is disclosed:
(1)
because the library or library system determines that disclosure is reasonably necessary for
the operation of the library or library system and the record is not confidential under other
state or federal law;
(2)
under Section 552.023; or
(3)
to a law enforcement agency or a prosecutor under a court order or subpoena obtained after
a showing to a district court that:
(A) disclosure of the record is necessary to protect the public safety; or
(B) the record is evidence of an offense or constitutes evidence that a particular person
committed an offense.
(b) A record of a library or library system that is excepted from required disclosure under this section
is confidential.
552.125.
Exception: Certain Audits
Any documents or information privileged under the Texas Environmental, Health, and Safety Audit
Privilege Act are excepted from the requirements of Section 552.021.
552.126.
Exception: Confidentiality of Name of Applicant for Superintendent of Public

School District
The name of an applicant for the position of superintendent of a public school district is excepted
from the requirements of Section 552.021, except that the board of trustees must give public notice
of the name or names of the finalists being considered for the position at least 21 days before the date
of the meeting at which a final action or vote is to be taken on the employment of the person.
552.127.
Exception: Confidentiality of Personal Information Relating to Participants in

Neighborhood Crime Watch Organization
(a) Information is excepted from the requirements of Section 552.021 if the information identifies
a person as a participant in a neighborhood crime watch organization and relates to the name,
home address, business address, home telephone number, or business telephone number of the
person.
210
Appendix 23
(b) In this section, neighborhood crime watch organization means a group of residents of a
neighborhood or part of a neighborhood that is formed in affiliation or association with a law
enforcement agency in this state to observe activities within the neighborhood or part of a
neighborhood and to take other actions intended to reduce crime in that area.
552.128.
Exception: Confidentiality of Certain Information Submitted by Potential

Vendor or Contractor
(a) Information submitted by a potential vendor or contractor to a governmental body in connection

with an application for certification as a historically underutilized or disadvantaged business
under a local, state, or federal certification program is excepted from the requirements of Section
552.021, except as provided by this section.
(b) Notwithstanding Section 552.007 and except as provided by Subsection (c), the information may
be disclosed only:
(1)
to a state or local governmental entity in this state, and the state or local governmental
entity may use the information only:
(A) for purposes related to verifying an applicants status as a historically underutilized
or disadvantaged business; or
(B) for the purpose of conducting a study of a public purchasing program established
under state law for historically underutilized or disadvantaged businesses; or
(2)
with the express written permission of the applicant or the applicants agent.
(c) Information submitted by a vendor or contractor or a potential vendor or contractor to a

governmental body in connection with a specific proposed contractual relationship, a specific
contract, or an application to be placed on a bidders list, including information that may also
have been submitted in connection with an application for certification as a historically
underutilized or disadvantaged business, is subject to required disclosure, excepted from required
disclosure, or confidential in accordance with other law.
552.129.
Confidentiality of Certain Motor Vehicle Inspection Information
A record created during a motor vehicle emissions inspection under Subchapter F, Chapter 548,
Transportation Code, that relates to an individual vehicle or owner of an individual vehicle is
552.130.
Exception: Confidentiality of Certain Motor Vehicle Records
(a) Information is excepted from the requirements of Section 552.021 if the information relates to:
(1)
a motor vehicle operators or drivers license or permit issued by an agency of this state or
another state or country;
211
Appendix 23
(2)
a motor vehicle title or registration issued by an agency of this state or another state or
country; or
(3)
a personal identification document issued by an agency of this state or another state or

country or a local agency authorized to issue an identification document.
(b) Information described by Subsection (a) may be released only if, and in the manner, authorized
by Chapter 730, Transportation Code.
(c) Subject to Chapter 730, Transportation Code, a governmental body may redact information
described by Subsection (a) from any information the governmental body discloses under
Section 552.021 without the necessity of requesting a decision from the attorney general under
Subchapter G.
(d) If, under Subsection (c), a governmental body redacts or withholds information without
information necessary to decide the matter and briefs from the requestor, the governmental body,
and any other interested person. The attorney general shall promptly render a decision requested
under this subsection, determining whether the redacted or withheld information was excepted
from required disclosure to the requestor, not later than the 45th business day after the date the
attorney general received the request for a decision under this subsection. The attorney general
shall issue a written decision on the matter and provide a copy of the decision to the requestor,
the governmental body, and any interested person who submitted necessary information or a brief
to the attorney general about the matter. The requestor or the governmental body may appeal a
decision of the attorney general under this subsection to a Travis County district court.
(e) A governmental body that redacts or withholds information under Subsection (c) shall provide
the following information to the requestor on a form prescribed by the attorney general:
(3) instructions regarding how the requestor may seek a decision from the attorney general
disclosure.
552.131.
Exception: Confidentiality of Certain Economic Development Information
(a) Information is excepted from the requirements of Section 552.021 if the information relates to
economic development negotiations involving a governmental body and a business prospect that
the governmental body seeks to have locate, stay, or expand in or near the territory of the
governmental body and the information relates to:
(1)
a trade secret of the business prospect; or

212
Appendix 23
(2)
commercial or financial information for which it is demonstrated based on specific factual

evidence that disclosure would cause substantial competitive harm to the person from
whom the information was obtained.
(b) Unless and until an agreement is made with the business prospect, information about a financial
or other incentive being offered to the business prospect by the governmental body or by another
person is excepted from the requirements of Section 552.021.
(c) After an agreement is made with the business prospect, this section does not except from the
requirements of Section 552.021 information about a financial or other incentive being offered
to the business prospect:
(1)
by the governmental body; or
(2)
by another person, if the financial or other incentive may directly or indirectly result in the
expenditure of public funds by a governmental body or a reduction in revenue received by
a governmental body from any source.
552.132.
Confidentiality of Crime Victim or Claimant Information
(a) Except as provided by Subsection (d), in this section, crime victim or claimant means a victim
or claimant under Subchapter B, Chapter 56, Code of Criminal Procedure, who has filed an
application for compensation under that subchapter.
(b) The following information held by the crime victims compensation division of the attorney
generals office is confidential:
(1)
the name, social security number, address, or telephone number of a crime victim or
claimant; or
(2)
any other information the disclosure of which would identify or tend to identify the crime
victim or claimant.
(c) If the crime victim or claimant is awarded compensation under Section 56.34, Code of Criminal
Procedure, as of the date of the award of compensation, the name of the crime victim or claimant
and the amount of compensation awarded to that crime victim or claimant are public information
and are not excepted from the requirements of Section 552.021.
(d) An employee of a governmental body who is also a victim under Subchapter B, Chapter 56,
Code of Criminal Procedure, regardless of whether the employee has filed an application for
compensation under that subchapter, may elect whether to allow public access to information
held by the attorney generals office or other governmental body that would identify or tend to
identify the victim, including a photograph or other visual representation of the victim. An
election under this subsection must be made in writing on a form developed by the governmental
body, be signed by the employee, and be filed with the governmental body before the third
anniversary of the latest to occur of one of the following:

213
Appendix 23
(1)
the date the crime was committed;
(2)
the date employment begins; or
(3)
the date the governmental body develops the form and provides it to employees.
(e) If the employee fails to make an election under Subsection (d), the identifying information is
excepted from disclosure until the third anniversary of the date the crime was committed. In case
of disability, impairment, or other incapacity of the employee, the election may be made by the
guardian of the employee or former employee.
552.1325. Crime Victim Impact Statement: Certain Information Confidential
(1)
Crime victim means a person who is a victim as defined by Article 56.32, Code of
Criminal Procedure.
(2)
Victim impact statement means a victim impact statement under Article 56.03, Code of
Criminal Procedure.
(b) The following information that is held by a governmental body or filed with a court and that is
contained in a victim impact statement or was submitted for purposes of preparing a victim
impact statement is confidential:
(1)
the name, social security number, address, and telephone number of a crime victim; and
(2)
any other information the disclosure of which would identify or tend to identify the crime
victim.
552.133.
Exception: Confidentiality of Public Power Utility Competitive Matters
(a) In this section, public power utility means an entity providing electric or gas utility services
that is subject to the provisions of this chapter.
(a-1) For purposes of this section, competitive matter means a utility-related matter that is related
to the public power utilitys competitive activity, including commercial information, and would, if
disclosed, give advantage to competitors or prospective competitors. The term:
(1)
means a matter that is reasonably related to the following categories of information:

(A) generation unit specific and portfolio fixed and variable costs, including forecasts of
those costs, capital improvement plans for generation units, and generation unit
operating characteristics and outage scheduling;

214
Appendix 23
(B) bidding and pricing information for purchased power, generation and fuel, and
Electric Reliability Council of Texas bids, prices, offers, and related services and
strategies;
(C) effective fuel and purchased power agreements and fuel transportation arrangements
and contracts;
(D) risk management information, contracts, and strategies, including fuel hedging and
storage;
(E) plans, studies, proposals, and analyses for system improvements, additions, or sales,
other than transmission and distribution system improvements inside the service area
for which the public power utility is the sole certificated retail provider; and
(F)
(2)
customer billing, contract, and usage information, electric power pricing information,
system load characteristics, and electric power marketing analyses and strategies; and
does not include the following categories of information:

(A) information relating to the provision of distribution access service, including the
terms and conditions of the service and the rates charged for the service but not
including information concerning utility-related services or products that are
competitive;
(B) information relating to the provision of transmission service that is required to be
filed with the Public Utility Commission of Texas, subject to any confidentiality
provided for under the rules of the commission;
(C) information for the distribution system pertaining to reliability and continuity of
service, to the extent not security-sensitive, that relates to emergency management,
identification of critical loads such as hospitals and police, records of interruption,
and distribution feeder standards;
(D) any substantive rule or tariff of general applicability regarding rates, service
offerings, service regulation, customer protections, or customer service adopted by
the public power utility as authorized by law;
(E) aggregate information reflecting receipts or expenditures of funds of the public power
utility, of the type that would be included in audited financial statements;
(F)
information relating to equal employment opportunities for minority groups, as filed

with local, state, or federal agencies;
(G) information relating to the public power utilitys performance in contracting with
minority business entities;

215
Appendix 23
(H) information relating to nuclear decommissioning trust agreements, of the type

required to be included in audited financial statements;
(I)
information relating to the amount and timing of any transfer to an owning citys
general fund;
(J)
information relating to environmental compliance as required to be filed with any

local, state, or national environmental authority, subject to any confidentiality
provided under the rules of those authorities;
(K) names of public officers of the public power utility and the voting records of those
officers for all matters other than those within the scope of a competitive resolution
provided for by this section;
(L) a description of the public power utilitys central and field organization, including the
established places at which the public may obtain information, submit information
and requests, or obtain decisions and the identification of employees from whom the
public may obtain information, submit information or requests, or obtain decisions;
(M) information identifying the general course and method by which the public power
utilitys functions are channeled and determined, including the nature and
requirements of all formal and informal policies and procedures;
(N) salaries and total compensation of all employees of a public power utility; or
(O) information publicly released by the Electric Reliability Council of Texas in
accordance with a law, rule, or protocol generally applicable to similarly situated
market participants.
(b) Information or records are excepted from the requirements of Section 552.021 if the information
or records are reasonably related to a competitive matter, as defined in this section. Information
or records of a municipally owned utility that are reasonably related to a competitive matter are
not subject to disclosure under this chapter, whether or not, under the Utilities Code, the
municipally owned utility has adopted customer choice or serves in a multiply certificated
service area. This section does not limit the right of a public power utility governing body to
withhold from disclosure information deemed to be within the scope of any other exception
provided for in this chapter, subject to the provisions of this chapter.
(c) The requirement of Section 552.022 that a category of information listed under Section
552.022(a) is public information and not excepted from required disclosure under this chapter
unless expressly confidential under law does not apply to information that is excepted from
required disclosure under this section.

216
Appendix 23
552.134.
Exception: Confidentiality of Certain Information Relating to Inmate of

Department of Criminal Justice
(a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained
by the Texas Department of Criminal Justice is excepted from the requirements of Section
552.021 if it is information about an inmate who is confined in a facility operated by or under
a contract with the department.
(b) Subsection (a) does not apply to:
(1)
statistical or other aggregated information relating to inmates confined in one or more

facilities operated by or under a contract with the department; or
(2)
information about an inmate sentenced to death.
(c) This section does not affect whether information is considered confidential or privileged under
Section 508.313.
(d) A release of information described by Subsection (a) to an eligible entity, as defined by Section
508.313(d), for a purpose related to law enforcement, prosecution, corrections, clemency, or
treatment is not considered a release of information to the public for purposes of Section 552.007
and does not waive the right to assert in the future that the information is excepted from required
disclosure under this section or other law.
552.135.
Exception: Confidentiality of Certain Information Held by School District
(a) Informer means a student or a former student or an employee or former employee of a school
district who has furnished a report of another persons possible violation of criminal, civil, or
regulatory law to the school district or the proper regulatory enforcement authority.
(b) An informers name or information that would substantially reveal the identity of an informer
is excepted from the requirements of Section 552.021.
(c) Subsection (b) does not apply:
(1)
if the informer is a student or former student, and the student or former student, or the legal
guardian, or spouse of the student or former student consents to disclosure of the students
or former students name; or
(2)
if the informer is an employee or former employee who consents to disclosure of the

employees or former employees name; or
(3)
if the informer planned, initiated, or participated in the possible violation.

217
Appendix 23
(d) Information excepted under Subsection (b) may be made available to a law enforcement agency
or prosecutor for official purposes of the agency or prosecutor upon proper request made in
compliance with applicable law and procedure.
(e) This section does not infringe on or impair the confidentiality of information considered to be
confidential by law, whether it be constitutional, statutory, or by judicial decision, including
information excepted from the requirements of Section 552.021.
552.136.
Confidentiality of Credit Card, Debit Card, Charge Card, and Access Device
Numbers
(a) In this section, access device means a card, plate, code, account number, personal
identification number, electronic serial number, mobile identification number, or other
telecommunications service, equipment, or instrument identifier or means of account access that
alone or in conjunction with another access device may be used to:
(1)
obtain money, goods, services, or another thing of value; or
(2)
initiate a transfer of funds other than a transfer originated solely by paper instrument.
(b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or
access device number that is collected, assembled, or maintained by or for a governmental body
is confidential.
(c) A governmental body may redact information that must be withheld under Subsection (b) from
any information the governmental body discloses under Section 552.021 without the necessity
of requesting a decision from the attorney general under Subchapter G.
(1)

218
Appendix 23
(2)
(3)
disclosure.
552.137.
Confidentiality of Certain E-mail Addresses
(a) Except as otherwise provided by this section, an e-mail address of a member of the public that
is provided for the purpose of communicating electronically with a governmental body is
confidential and not subject to disclosure under this chapter.
(b) Confidential information described by this section that relates to a member of the public may be
disclosed if the member of the public affirmatively consents to its release.
(c) Subsection (a) does not apply to an e-mail address:
(1)
provided to a governmental body by a person who has a contractual relationship with the
governmental body or by the contractors agent;
(2)
provided to a governmental body by a vendor who seeks to contract with the governmental
body or by the vendors agent;
(3)
contained in a response to a request for bids or proposals, contained in a response to similar

invitations soliciting offers or information relating to a potential contract, or provided to
a governmental body in the course of negotiating the terms of a contract or potential
contract;
(4)
provided to a governmental body on a letterhead, coversheet, printed document, or other

document made available to the public; or
(5)
provided to a governmental body for the purpose of providing public comment on or

receiving notices related to an application for a license as defined by Section 2001.003(2)
of this code, or receiving orders or decisions from a governmental body.
(d) Subsection (a) does not prevent a governmental body from disclosing an e-mail address for any
reason to another governmental body or to a federal agency.
552.138.
Exception: Confidentiality of Family Violence Shelter Center, Victims of

Trafficking Shelter Center, and Sexual Assault Program Information

(1)
Family violence shelter center has the meaning assigned by Section 51.002, Human
Resources Code.
(2)
Sexual assault program has the meaning assigned by Section 420.003.

219
Appendix 23
(3)
Victims of trafficking shelter center means:

(A) a program that:
(i) is operated by a public or private nonprofit organization; and
(ii) provides comprehensive residential and nonresidential services to persons who
are victims of trafficking under Section 20A.02, Penal Code; or
(B) a child-placing agency, as defined by Section 42.002, Human Resources Code, that
provides services to persons who are victims of trafficking under Section 20A.02,
Penal Code.
(b) Information maintained by a family violence shelter center, victims of trafficking shelter center,
or sexual assault program is excepted from the requirements of Section 552.021 if it is
information that relates to:
(1)
the home address, home telephone number, or social security number of an employee or
a volunteer worker of a family violence shelter center, victims of trafficking shelter center,
or sexual assault program, regardless of whether the employee or worker complies with
Section 552.024;
(2)
the location or physical layout of a family violence shelter center or victims of trafficking
shelter center;
(3)
the name, home address, home telephone number, or numeric identifier of a current or
former client of a family violence shelter center, victims of trafficking shelter center, or
sexual assault program;
(4)
the provision of services, including counseling and sheltering, to a current or former client
of a family violence shelter center, victims of trafficking shelter center, or sexual assault
program;
(5)
the name, home address, or home telephone number of a private donor to a family violence
shelter center, victims of trafficking shelter center, or sexual assault program; or
(6)
the home address or home telephone number of a member of the board of directors or the
board of trustees of a family violence shelter center, victims of trafficking shelter center,
or sexual assault program, regardless of whether the board member complies with
Section 552.024.
(c) A governmental body may redact information maintained by a family violence shelter center,
victims of trafficking shelter center, or sexual assault program that may be withheld under
Subsection (b)(1) or (6) from any information the governmental body discloses under
Section 552.021 without the necessity of requesting a decision from the attorney general under
Subchapter G.

220
Appendix 23
(1)
(2)
(3)
disclosure.
552.139.
Exception: Confidentiality of Government Information Related to Security or

Infrastructure Issues for Computers
(a) Information is excepted from the requirements of Section 552.021 if it is information that relates
to computer network security, to restricted information under Section 2059.055, or to the design,
operation, or defense of a computer network.
(b) The following information is confidential:
(1)
a computer network vulnerability report;
(2)
any other assessment of the extent to which data processing operations, a computer, a
computer program, network, system, or system interface, or software of a governmental
body or of a contractor of a governmental body is vulnerable to unauthorized access or
harm, including an assessment of the extent to which the governmental bodys or
contractors electronically stored information containing sensitive or critical information
is vulnerable to alteration, damage, erasure, or inappropriate use; and
(3)
a photocopy or other copy of an identification badge issued to an official or employee of

a governmental body.

221
Appendix 23
(c) Notwithstanding the confidential nature of the information described in this section, the
information may be disclosed to a bidder if the governmental body determines that providing the
information is necessary for the bidder to provide an accurate bid. A disclosure under this
subsection is not a voluntary disclosure for purposes of Section 552.007.
552.140.
Exception: Confidentiality of Military Discharge Records
(a) This section applies only to a military veterans Department of Defense Form DD-214 or other
military discharge record that is first recorded with or that otherwise first comes into the
possession of a governmental body on or after September 1, 2003.
(b) The record is confidential for the 75 years following the date it is recorded with or otherwise first
comes into the possession of a governmental body. During that period the governmental body
may permit inspection or copying of the record or disclose information contained in the record
only in accordance with this section or in accordance with a court order.
(c) On request and the presentation of proper identification, the following persons may inspect the
military discharge record or obtain from the governmental body free of charge a copy or certified
copy of the record:
(1)
the veteran who is the subject of the record;
(2)
the legal guardian of the veteran;
(3)
the spouse or a child or parent of the veteran or, if there is no living spouse, child, or
parent, the nearest living relative of the veteran;
(4)
the personal representative of the estate of the veteran;
(5)
the person named by the veteran, or by a person described by Subdivision (2), (3), or (4),
in an appropriate power of attorney executed in accordance with Section 490, Chapter XII,
Texas Probate Code;
(6)
another governmental body; or
(7)
an authorized representative of the funeral home that assists with the burial of the veteran.
(d) A court that orders the release of information under this section shall limit the further disclosure
of the information and the purposes for which the information may be used.
(e) A governmental body that obtains information from the record shall limit the governmental
bodys use and disclosure of the information to the purpose for which the information was
obtained.

222
Appendix 23
552.141.
Confidentiality of Information in Application for Marriage License
(a) Information that relates to the social security number of an individual that is maintained by a
county clerk and that is on an application for a marriage license, including information in an
application on behalf of an absent applicant and the affidavit of an absent applicant, or is on a
document submitted with an application for a marriage license is confidential and may not be
disclosed by the county clerk to the public under this chapter.
(b) If the county clerk receives a request to make information in a marriage license application
available under this chapter, the county clerk shall redact the portion of the application that
contains an individuals social security number and release the remainder of the information in
the application.
552.142.
Exception: Confidentiality of Records of Certain Deferred Adjudications
(a) Information is excepted from the requirements of Section 552.021 if an order of nondisclosure
with respect to the information has been issued under Section 411.081(d).
(b) A person who is the subject of information that is excepted from the requirements of Section
552.021 under this section may deny the occurrence of the arrest and prosecution to which the
information relates and the exception of the information under this section, unless the
information is being used against the person in a subsequent criminal proceeding.
552.1425. Civil Penalty: Dissemination of Certain Criminal History Information
(a) A private entity that compiles and disseminates for compensation criminal history record
information may not compile or disseminate information with respect to which the entity has
received notice that:
(1)
an order of expunction has been issued under Article 55.02, Code of Criminal Procedure;
or
(2)
an order of nondisclosure has been issued under Section 411.081(d).
(b) A district court may issue a warning to a private entity for a first violation of Subsection (a).
After receiving a warning for the first violation, the private entity is liable to the state for a civil
penalty not to exceed $1,000 for each subsequent violation.
(c) The attorney general or an appropriate prosecuting attorney may sue to collect a civil penalty
under this section.
(d) A civil penalty collected under this section shall be deposited in the state treasury to the credit
of the general revenue fund.

223
Appendix 23
552.143.
Confidentiality of Certain Investment Information
(a) All information prepared or provided by a private investment fund and held by a governmental
body that is not listed in Section 552.0225(b) is confidential and excepted from the requirements
of Section 552.021.
(b) Unless the information has been publicly released, pre-investment and post-investment diligence
information, including reviews and analyses, prepared or maintained by a governmental body or
a private investment fund is confidential and excepted from the requirements of Section 552.021,
except to the extent it is subject to disclosure under Subsection (c).
(c) All information regarding a governmental bodys direct purchase, holding, or disposal of
restricted securities that is not listed in Section 552.0225(b)(2)(9), (11), or (13)(16) is
confidential and excepted from the requirements of Section 552.021. This subsection does not
apply to a governmental bodys purchase, holding, or disposal of restricted securities for the
purpose of reinvestment nor does it apply to a private investment funds investment in restricted
securities. This subsection applies to information regarding a direct purchase, holding, or
disposal of restricted securities by the Texas growth fund, created under Section 70, Article XVI,
Texas Constitution, that is not listed in Section 552.0225(b).
(d) For the purposes of this chapter:
(1)
Private investment fund means an entity, other than a governmental body, that issues
restricted securities to a governmental body to evidence the investment of public funds for
the purpose of reinvestment.
(2)
Reinvestment means investment in a person that makes or will make other investments.
(3)
Restricted securities has the meaning assigned by 17 C.F.R. Section 230.144(a)(3).
(e) Repealed by Acts 2011 , 82nd Leg., 1st C.S., ch. 4 (S.B. 1), 17.05(1).
(f) This section does not apply to the Texas Mutual Insurance Company or a successor to the
company.
552.144.
Exception: Working Papers and Electronic Communications of Administrative

Law Judges at State Office of Administrative Hearings
The following working papers and electronic communications of an administrative law judge at the
State Office of Administrative Hearings are excepted from the requirements of Section 552.021:
(1)
notes and electronic communications recording the observations, thoughts, questions,

deliberations, or impressions of an administrative law judge;
(2)
drafts of a proposal for decision;

224
Appendix 23
(3)
drafts of orders made in connection with conducting contested case hearings; and
(4)
drafts of orders made in connection with conducting alternative dispute resolution

procedures.
552.145.
Exception: Confidentiality of Texas No-Call List
The Texas no-call list created under Subchapter B, Chapter 304, Business & Commerce Code, and
any information provided to or received from the administrator of the national do-not-call registry
maintained by the United States government, as provided by Sections 304.051 and 304.56, Business
& Commerce Code, are excepted from the requirements of Section 552.021.
552.146.
Exception: Certain Communications with Assistant or Employee of Legislative

Budget Board
(a) All written or otherwise recorded communications, including conversations, correspondence, and
electronic communications, between a member of the legislature or the lieutenant governor and
an assistant or employee of the Legislative Budget Board are excepted from the requirements of
Section 552.021.
(b) Memoranda of a communication between a member of the legislature or the lieutenant governor
and an assistant or employee of the Legislative Budget Board are excepted from the requirements
of Section 552.021 without regard to the method used to store or maintain the memoranda.
(c) This section does not except from required disclosure a record or memoranda of a
communication that occurs in public during an open meeting or public hearing conducted by the
Legislative Budget Board.
552.147. Social Security Numbers
(a) Except as provided by Subsection (a-1), the social security number of a living person is excepted
from the requirements of Section 552.021, but is not confidential under this section and this
section does not make the social security number of a living person confidential under another
provision of this chapter or other law.
(a-1) The social security number of an employee of a school district in the custody of the district is
confidential.
(b) A governmental body may redact the social security number of a living person from any
information the governmental body discloses under Section 552.021 without the necessity of
requesting a decision from the attorney general under Subchapter G.
(c) Notwithstanding any other law, a county or district clerk may disclose in the ordinary course of
business a social security number that is contained in information held by the clerks office, and
that disclosure is not official misconduct and does not subject the clerk to civil or criminal

225
Appendix 23
liability of any kind under the law of this state, including any claim for damages in a lawsuit or
the criminal penalty imposed by Section 552.352.
(d) Unless another law requires a social security number to be maintained in a government
document, on written request from an individual or the individuals representative the clerk shall
redact within a reasonable amount of time all but the last four digits of the individuals social
security number from information maintained in the clerks official public records, including
electronically stored information maintained by or under the control of the clerk. The individual
or the individuals representative must identify, using a form provided by the clerk, the specific
document or documents from which the partial social security number shall be redacted.
552.148. Exception: Confidentiality of Certain Personal Information Maintained by
Municipality Pertaining to a Minor
(a) In this section, minor means a person younger than 18 years of age.
(b) The following information maintained by a municipality for purposes related to the participation
by a minor in a recreational program or activity is excepted from the requirements of Section
552.021:
(1)
the name, age, home address, home telephone number, or social security number of the
minor;
(2)
a photograph of the minor; and
(3)
the name of the minors parent or legal guardian.
552.149.
Exception: Confidentiality of Records of Comptroller or Appraisal District

Received from Private Entity
(a) Information relating to real property sales prices, descriptions, characteristics, and other related
information received from a private entity by the comptroller or the chief appraiser of an
appraisal district under Chapter 6, Tax Code, is excepted from the requirements of Section
552.021.
(b) Notwithstanding Subsection (a), the property owner or the owners agent may, on request, obtain
from the chief appraiser of the applicable appraisal district a copy of each item of information
described by Section 41.461(a)(2), Tax Code, and a copy of each item of information that the
chief appraiser took into consideration but does not plan to introduce at the hearing on the
protest. In addition, the property owner or agent may, on request, obtain from the chief appraiser
comparable sales data from a reasonable number of sales that is relevant to any matter to be
determined by the appraisal review board at the hearing on the property owners protest.
Information obtained under this subsection:
(1)
remains confidential in the possession of the property owner or agent; and

226
Appendix 23
(2)
may not be disclosed or used for any purpose except as evidence or argument at the hearing
on the protest.
(c) Notwithstanding Subsection (a) or Section 403.304, so as to assist a property owner or an

appraisal district in a protest filed under Section 403.303, the property owner, the district, or an
agent of the property owner or district may, on request, obtain from the comptroller any
information, including confidential information, obtained by the comptroller in connection with
the comptrollers finding that is being protested. Confidential information obtained by a property
owner, an appraisal district, or an agent of the property owner or district under the subsection:
(1)
remains confidential in the possession of the property owner, district, or agent; and
(2)
may not be disclosed to a person who is not authorized to receive or inspect the
information.
(d) Notwithstanding Subsection (a) or Section 403.304, so as to assist a school district in the
preparation of a protest filed or to be filed under Section 403.303, the school district or an agent
of the school district may, on request, obtain from the comptroller or the appraisal district any
information, including confidential information, obtained by the comptroller or the appraisal
district that relates to the appraisal of property involved in the comptrollers finding that is being
protested. Confidential information obtained by a school district or an agent of the school
district under this subsection:
(1)
remains confidential in the possession of the school district or agent; and
(2)
may not be disclosed to a person who is not authorized to receive or inspect the
information.
(e) This section applies to information described by Subsections (a), (c), and (d) and to an item of
information or comparable sales data described by Subsection (b) only if the information, item
of information, or comparable sales data relates to real property that is located in a county having
a population of more than 50,000.
552.150.
Exception: Confidentiality of Information That Could Compromise Safety of

Officer or Employee of Hospital District
(a) Information in the custody of a hospital district that relates to an employee or officer of the
hospital district is excepted from the requirements of Section 552.021 if:
(1)
it is information that, if disclosed under the specific circumstances pertaining to the

individual, could reasonably be expected to compromise the safety of the individual, such
as information that describes or depicts the likeness of the individual, information stating
the times that the individual arrives at or departs from work, a description of the
individuals automobile, or the location where the individual works or parks; and

227
Appendix 23
(2)
the employee or officer applies in writing to the hospital districts officer for public
information to have the information withheld from public disclosure under this section and
includes in the application:
(A) a description of the information; and
(B) the specific circumstances pertaining to the individual that demonstrate why disclosure
of the information could reasonably be expected to compromise the safety of the
individual.
(b) On receiving a written request for information described in an application submitted under
Subsection (a)(2), the officer for public information shall:
(1)
request a decision from the attorney general in accordance with Section 552.301 regarding
withholding the information; and
(2)
include a copy of the application submitted under Subsection (a)(2) with the request for the
decision.
(c) Repealed by Acts 2011, 82nd Leg., ch. 609 (S.B. 470), 1.
552.151.
Exception: Confidentiality of Information Concerning Information Regarding

Select Agents
(a) The following information that pertains to a biological agent or toxin identified or listed as a
select agent under federal law, including under the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (Pub. L. No. 107-188) and regulations adopted under
that Act, is excepted from the requirements of Section 552.021:
(1)
the specific location of a select agent within an approved facility;
(2)
personal identifying information of an individual whose name appears in documentation

relating to the chain of custody of select agents, including a materials transfer agreement;
and
(3)
the identity of an individual authorized to possess, use, or access a select agent.
(b) This section does not except from disclosure the identity of the select agents present at a facility.
(c) This section does not except from disclosure the identity of an individual faculty member or
employee whose name appears or will appear on published research.
(d) This section does not except from disclosure otherwise public information relating to contracts
of a governmental body.

228
Appendix 23
(e) If a resident of another state is present in Texas and is authorized to possess, use, or access a
select agent in conducting research or other work at a Texas facility, information relating to the
identity of that individual is subject to disclosure under this chapter only to the extent the
information would be subject to disclosure under the laws of the state of which the person is a
resident.
552.152.
Exception: Confidentiality of Information Concerning Public Employee or

Officer Personal Safety
Information in the custody of a governmental body that relates to an employee or officer of the
governmental body is excepted from the requirements of Section 552.021 if, under the specific
circumstances pertaining to the employee or officer, disclosure of the information would subject the
employee or officer to a substantial threat of physical harm.
552.153.
Proprietary Records and Trade Secrets Involved in Certain Partnerships
(a) In this section, affected jurisdiction, comprehensive agreement, contracting person,

interim agreement, qualifying project, and responsible governmental entity have the
meanings assigned those terms by Section 2267.001.
(b) Information in the custody of a responsible governmental entity that relates to a proposal for a
qualifying project authorized under Chapter 2267 is excepted from the requirements of
Section 552.021 if:
(1)
the information consists of memoranda, staff evaluations, or other records prepared by the
responsible governmental entity, its staff, outside advisors, or consultants exclusively for
the evaluation and negotiation of proposals filed under Chapter 2267 for which:
(A) disclosure to the public before or after the execution of an interim or comprehensive
agreement would adversely affect the financial interest or bargaining position of the
responsible governmental entity; and
(B) the basis for the determination under Paragraph (A) is documented in writing by the
responsible governmental entity; or
(2)
the records are provided by a proposer to a responsible governmental entity or affected

jurisdiction under Chapter 2267 and contain:
(A) trade secrets of the proposer;
(B) financial records of the proposer, including balance sheets and financial statements,
that are not generally available to the public through regulatory disclosure or other
means; or
(C) work product related to a competitive bid or proposal submitted by the proposer that,
if made public before the execution of an interim or comprehensive agreement,

229
Appendix 23
would provide a competing proposer an unjust advantage or adversely affect the

financial interest or bargaining position of the responsible governmental entity or the
proposer.
(c) Except as specifically provided by Subsection (b), this section does not authorize the withholding
of information concerning:
(1)
the terms of any interim or comprehensive agreement, service contract, lease, partnership,
or agreement of any kind entered into by the responsible governmental entity and the
contracting person or the terms of any financing arrangement that involves the use of any
public money; or
(2)
the performance of any person developing or operating a qualifying project under

Chapter 2267.
(d) In this section, proposer has the meaning assigned by Section 2267.001.
552.154.
Exception: Name of Applicant for Executive Director, Chief Investment Officer,

or Chief Audit Executive of Teacher Retirement System of Texas
The name of an applicant for the position of executive director, chief investment officer, or chief
audit executive of the Teacher Retirement System of Texas is excepted from the requirements of
Section 552.021, except that the board of trustees of the Teacher Retirement System of Texas must
give public notice of the names of three finalists being considered for one of those positions at least
21 days before the date of the meeting at which the final action or vote is to be taken on choosing
a finalist for employment.
SUBCHAPTER D. OFFICER FOR PUBLIC INFORMATION
552.201.
Identity of Officer for Public Information
(a) The chief administrative officer of a governmental body is the officer for public information,
except as provided by Subsection (b).
(b) Each elected county officer is the officer for public information and the custodian, as defined by
Section 201.003, Local Government Code, of the information created or received by that county
officers office.
552.202.
Department Heads
Each department head is an agent of the officer for public information for the purposes of complying
with this chapter.

230
Appendix 23
552.203.
General Duties of Officer for Public Information
Each officer for public information, subject to penalties provided in this chapter, shall:
(1)
make public information available for public inspection and copying;
(2)
carefully protect public information from deterioration, alteration, mutilation, loss, or

unlawful removal; and
(3)
repair, renovate, or rebind public information as necessary to maintain it properly.
552.204.
Scope of Responsibility of Officer for Public Information
An officer for public information is responsible for the release of public information as required by
this chapter. The officer is not responsible for:
(1)
the use made of the information by the requestor; or
(2)
the release of information after it is removed from a record as a result of an update, a

correction, or a change of status of the person to whom the information pertains.
552.205.
Informing Public of Basic Rights and Responsibilities Under this Chapter
(a) An officer for public information shall prominently display a sign in the form prescribed by the
attorney general that contains basic information about the rights of a requestor, the
responsibilities of a governmental body, and the procedures for inspecting or obtaining a copy
of public information under this chapter. The officer shall display the sign at one or more places
in the administrative offices of the governmental body where it is plainly visible to:
(1)
members of the public who request public information in person under this chapter; and
(2)
employees of the governmental body whose duties include receiving or responding to

requests under this chapter.
(b) The attorney general by rule shall prescribe the content of the sign and the size, shape, and other
physical characteristics of the sign. In prescribing the content of the sign, the attorney general
shall include plainly written basic information about the rights of a requestor, the responsibilities
of a governmental body, and the procedures for inspecting or obtaining a copy of public
information under this chapter that, in the opinion of the attorney general, is most useful for
requestors to know and for employees of governmental bodies who receive or respond to
requests for public information to know.

231
Appendix 23
SUBCHAPTER E. PROCEDURES RELATED TO ACCESS

552.221.
Application for Public Information; Production of Public Information
(a) An officer for public information of a governmental body shall promptly produce public
information for inspection, duplication, or both on application by any person to the officer. In
this subsection, promptly means as soon as possible under the circumstances, that is, within
a reasonable time, without delay.
(b) An officer for public information complies with Subsection (a) by:
(1)
providing the public information for inspection or duplication in the offices of the
governmental body; or
(2)
sending copies of the public information by first class United States mail if the person
requesting the information requests that copies be provided and pays the postage and any
other applicable charges that the requestor has accrued under Subchapter F.
(c) If the requested information is unavailable at the time of the request to examine because it is in
active use or in storage, the officer for public information shall certify this fact in writing to the
requestor and set a date and hour within a reasonable time when the information will be available
for inspection or duplication.
(d) If an officer for public information cannot produce public information for inspection or
duplication within 10 business days after the date the information is requested under Subsection
(a), the officer shall certify that fact in writing to the requestor and set a date and hour within a
reasonable time when the information will be available for inspection or duplication.
552.222.
Permissible Inquiry by Governmental Body to Requestor
(a) The officer for public information and the officers agent may not make an inquiry of a requestor
except to establish proper identification or except as provided by Subsection (b) or (c).
(b) If what information is requested is unclear to the governmental body, the governmental body may
ask the requestor to clarify the request. If a large amount of information has been requested, the
governmental body may discuss with the requestor how the scope of a request might be
narrowed, but the governmental body may not inquire into the purpose for which information
will be used.
(c) If the information requested relates to a motor vehicle record, the officer for public information
or the officers agent may require the requestor to provide additional identifying information
sufficient for the officer or the officers agent to determine whether the requestor is eligible to
receive the information under Chapter 730, Transportation Code. In this subsection, motor
vehicle record has the meaning assigned that term by Section 730.003, Transportation Code.

232
Appendix 23
(d) If by the 61st day after the date a governmental body sends a written request for clarification or
discussion under Subsection (b) or an officer for public information or agent sends a written
request for additional information under Subsection (c) the governmental body, officer for public
information, or agent, as applicable, does not receive a written response from the requestor, the
underlying request for public information is considered to have been withdrawn by the requestor.
(e) A written request for clarification or discussion under Subsection (b) or a written request for
additional information under Subsection (c) must include a statement as to the consequences of
the failure by the requestor to timely respond to the request for clarification, discussion, or
additional information.
(f) If the requestors request for public information included the requestors physical or mailing
address, the request may not be considered to have been withdrawn under Subsection (d) unless
the governmental body, officer for public information, or agent, as applicable, sends the request
for clarification or discussion under Subsection (b) or the written request for additional
information under Subsection (c) to that address by certified mail.
552.223.
Uniform Treatment of Requests for Information
The officer for public information or the officers agent shall treat all requests for information
uniformly without regard to the position or occupation of the requestor, the person on whose behalf
the request is made, or the status of the individual as a member of the media.
552.224.
Comfort and Facility
The officer for public information or the officers agent shall give to a requestor all reasonable
comfort and facility for the full exercise of the right granted by this chapter.
552.225.
Time for Examination
(a) A requestor must complete the examination of the information not later than the 10th business
day after the date the custodian of the information makes it available. If the requestor does not
complete the examination of the information within 10 business days after the date the custodian
of the information makes the information available and does not file a request for additional time
under Subsection (b), the requestor is considered to have withdrawn the request.
(b) The officer for public information shall extend the initial examination period by an additional
10 business days if, within the initial period, the requestor files with the officer for public
information a written request for additional time. The officer for public information shall extend
an additional examination period by another 10 business days if, within the additional period,
the requestor files with the officer for public information a written request for more additional
time.
(c) The time during which a person may examine information may be interrupted by the officer for
public information if the information is needed for use by the governmental body. The period

233
Appendix 23
of interruption is not considered to be a part of the time during which the person may examine
the information.
552.226.
Removal of Original Record
This chapter does not authorize a requestor to remove an original copy of a public record from the
office of a governmental body.
552.227.
Research of State Library Holdings Not Required
An officer for public information or the officers agent is not required to perform general research
within the reference and research archives and holdings of state libraries.
552.228.
Providing Suitable Copy of Public Information Within Reasonable Time
(a) It shall be a policy of a governmental body to provide a suitable copy of public information
within a reasonable time after the date on which the copy is requested.
(b) If public information exists in an electronic or magnetic medium, the requestor may request a
copy in an electronic medium, such as on diskette or on magnetic tape. A governmental body
shall provide a copy in the requested medium if:
(1)
the governmental body has the technological ability to produce a copy of the requested
information in the requested medium;
(2)
the governmental body is not required to purchase any software or hardware to

accommodate the request; and
(3)
provision of a copy of the information in the requested medium will not violate the terms
of any copyright agreement between the governmental body and a third party.
(c) If a governmental body is unable to comply with a request to produce a copy of information in
a requested medium for any of the reasons described by this section, the governmental body shall
provide a copy in another medium that is acceptable to the requestor. A governmental body is
not required to copy information onto a diskette or other material provided by the requestor but
may use its own supplies.
552.229.
Consent to Release Information Under Special Right of Access
(a) Consent for the release of information excepted from disclosure to the general public but
available to a specific person under Sections 552.023 and 552.307 must be in writing and signed
by the specific person or the persons authorized representative.
(b) An individual under 18 years of age may consent to the release of information under this section
only with the additional written authorization of the individuals parent or guardian.

234
Appendix 23
(c) An individual who has been adjudicated incompetent to manage the individuals personal affairs
or for whom an attorney ad litem has been appointed may consent to the release of information
under this section only by the written authorization of the designated legal guardian or attorney
ad litem.
552.230.
Rules of Procedure for Inspection and Copying of Public Information
(a) A governmental body may promulgate reasonable rules of procedure under which public
information may be inspected and copied efficiently, safely, and without delay.
(b) A rule promulgated under Subsection (a) may not be inconsistent with any provision of this
chapter.
552.231.
Responding to Requests for Information That Require Programming or

Manipulation of Data
(a) A governmental body shall provide to a requestor the written statement described by Subsection
(b) if the governmental body determines:
(1)
that responding to a request for public information will require programming or

manipulation of data; and
(2)
that:
(A) compliance with the request is not feasible or will result in substantial interference
with its ongoing operations; or
(B) the information could be made available in the requested form only at a cost that
covers the programming and manipulation of data.
(b) The written statement must include:

(1)
a statement that the information is not available in the requested form;
(2)
a description of the form in which the information is available;
(3)
a description of any contract or services that would be required to provide the information
in the requested form;
(4)
a statement of the estimated cost of providing the information in the requested form, as
determined in accordance with the rules established by the attorney general under
Section 552.262; and
(5)
a statement of the anticipated time required to provide the information in the requested
form.

235
Appendix 23
(c) The governmental body shall provide the written statement to the requestor within 20 days after
the date of the governmental bodys receipt of the request. The governmental body has an
additional 10 days to provide the statement if the governmental body gives written notice to the
requestor, within 20 days after the date of receipt of the request, that the additional time is
needed.
(d) On providing the written statement to the requestor as required by this section, the governmental
body does not have any further obligation to provide the information in the requested form or in
the form in which it is available unless within 30 days the requestor states in writing to the
governmental body that the requestor:
(1)
wants the governmental body to provide the information in the requested form according
to the cost and time parameters set out in the statement or according to other terms to
which the requestor and the governmental body agree; or
(2)
wants the information in the form in which it is available.
(d-1)
If a requestor does not make a timely written statement under Subsection (d), the requestor
is considered to have withdrawn the request for information.
(e) The officer for public information of a governmental body shall establish policies that assure the
expeditious and accurate processing of requests for information that require programming or
manipulation of data. A governmental body shall maintain a file containing all written
statements issued under this section in a readily accessible location.
552.232.
Responding to Repetitious or Redundant Requests
(a) A governmental body that determines that a requestor has made a request for information for
which the governmental body has previously furnished copies to the requestor or made copies
available to the requestor on payment of applicable charges under Subchapter F, shall respond
to the request, in relation to the information for which copies have been already furnished or
made available, in accordance with this section, except that:
(1)
this section does not prohibit the governmental body from furnishing the information or
making the information available to the requestor again in accordance with the request; and
(2)
the governmental body is not required to comply with this section in relation to information
that the governmental body simply furnishes or makes available to the requestor again in
accordance with the request.
(b) The governmental body shall certify to the requestor that copies of all or part of the requested
information, as applicable, were previously furnished to the requestor or made available to the
requestor on payment of applicable charges under Subchapter F. The certification must include:
(1)
a description of the information for which copies have been previously furnished or made
available to the requestor;

236
Appendix 23
(2)
the date that the governmental body received the requestors original request for that
information;
(3)
the date that the governmental body previously furnished copies of or made available
copies of the information to the requestor;
(4)
a certification that no subsequent additions, deletions, or corrections have been made to

that information; and
(5)
the name, title, and signature of the officer for public information or the officers agent
making the certification.
(c) A charge may not be imposed for making and furnishing a certification required under
Subsection (b).
(d) This section does not apply to information for which the governmental body has not previously
furnished copies to the requestor or made copies available to the requestor on payment of
applicable charges under Subchapter F. A request by the requestor for information for which
copies have not previously been furnished or made available to the requestor, including
information for which copies were not furnished or made available because the information was
redacted from other information that was furnished or made available or because the information
did not yet exist at the time of an earlier request, shall be treated in the same manner as any other
request for information under this chapter.
SUBCHAPTER F. CHARGES FOR PROVIDING COPIES OF PUBLIC INFORMATION
552.261.
Charge for Providing Copies of Public Information
(a) The charge for providing a copy of public information shall be an amount that reasonably
includes all costs related to reproducing the public information, including costs of materials,
labor, and overhead. If a request is for 50 or fewer pages of paper records, the charge for
providing the copy of the public information may not include costs of materials, labor, or
overhead, but shall be limited to the charge for each page of the paper record that is photocopied,
unless the pages to be photocopied are located in:
(1)
two or more separate buildings that are not physically connected with each other; or
(2)
a remote storage facility.
(b) If the charge for providing a copy of public information includes costs of labor, the requestor
may require the governmental bodys officer for public information or the officers agent to
provide the requestor with a written statement as to the amount of time that was required to
produce and provide the copy. The statement must be signed by the officer for public
information or the officers agent and the officers or the agents name must be typed or legibly
printed below the signature. A charge may not be imposed for providing the written statement
to the requestor.

237
Appendix 23
(c) For purposes of Subsection (a), a connection of two buildings by a covered or open sidewalk, an
elevated or underground passageway, or a similar facility is insufficient to cause the buildings
to be considered separate buildings.
(d) Charges for providing a copy of public information are considered to accrue at the time the
governmental body advises the requestor that the copy is available on payment of the applicable
charges.
552.2615. Required Itemized Estimate of Charges
(a) If a request for a copy of public information will result in the imposition of a charge under this
subchapter that exceeds $40, or a request to inspect a paper record will result in the imposition
of a charge under Section 552.271 that exceeds $40, the governmental body shall provide the
requestor with a written itemized statement that details all estimated charges that will be
imposed, including any allowable charges for labor or personnel costs. If an alternative less
costly method of viewing the records is available, the statement must include a notice that the
requestor may contact the governmental body regarding the alternative method. The
governmental body must inform the requestor of the responsibilities imposed on the requestor
by this section and of the rights granted by this entire section and give the requestor the
information needed to respond, including:
(1)
that the requestor must provide the governmental body with a mailing, facsimile
transmission, or electronic mail address to receive the itemized statement and that it is the
requestors choice which type of address to provide;
(2)
that the request is considered automatically withdrawn if the requestor does not respond
in writing to the itemized statement and any updated itemized statement in the time and
manner required by this section; and
(3)
that the requestor may respond to the statement by delivering the written response to the
governmental body by mail, in person, by facsimile transmission if the governmental body
is capable of receiving documents transmitted in that manner, or by electronic mail if the
governmental body has an electronic mail address.
(b) A request described by Subsection (a) is considered to have been withdrawn by the requestor if
the requestor does not respond in writing to the itemized statement by informing the
governmental body within 10 business days after the date the statement is sent to the requestor
that:
(1)
the requestor will accept the estimated charges;
(2)
the requestor is modifying the request in response to the itemized statement; or
(3)
the requestor has sent to the attorney general a complaint alleging that the requestor has
been overcharged for being provided with a copy of the public information.

238
Appendix 23
(c) If the governmental body later determines, but before it makes the copy or the paper record
available, that the estimated charges will exceed the charges detailed in the written itemized
statement by 20 percent or more, the governmental body shall send to the requestor a written
updated itemized statement that details all estimated charges that will be imposed, including any
allowable charges for labor or personnel costs. If the requestor does not respond in writing to
the updated estimate in the time and manner described by Subsection (b), the request is
considered to have been withdrawn by the requestor.
(d) If the actual charges that a governmental body imposes for a copy of public information, or for
inspecting a paper record under Section 552.271, exceeds $40, the charges may not exceed:
(1)
the amount estimated in the updated itemized statement; or
(2)
if an updated itemized statement is not sent to the requestor, an amount that exceeds by 20
percent or more the amount estimated in the itemized statement.
(e) An itemized statement or updated itemized statement is considered to have been sent by the
governmental body to the requestor on the date that:
(1)
the statement is delivered to the requestor in person;
(2)
the governmental body deposits the properly addressed statement in the United States mail;
or
(3)
the governmental body transmits the properly addressed statement by electronic mail or
facsimile transmission, if the requestor agrees to receive the statement by electronic mail
or facsimile transmission, as applicable.
(f) A requestor is considered to have responded to the itemized statement or the updated itemized
statement on the date that:
(1)
the response is delivered to the governmental body in person;
(2)
the requestor deposits the properly addressed response in the United States mail; or
(3)
the requestor transmits the properly addressed response to the governmental body by
electronic mail or facsimile transmission.
(g) The time deadlines imposed by this section do not affect the application of a time deadline
imposed on a governmental body under Subchapter G.
552.262.
Rules of the Attorney General
(a) The attorney general shall adopt rules for use by each governmental body in determining charges
for providing copies of public information under this subchapter and in determining the charge,
deposit, or bond required for making public information that exists in a paper record available

239
Appendix 23
for inspection as authorized by Sections 552.271(c) and (d). The rules adopted by the attorney
general shall be used by each governmental body in determining charges for providing copies
of public information and in determining the charge, deposit, or bond required for making public
information that exists in a paper record available for inspection, except to the extent that other
law provides for charges for specific kinds of public information. The charges for providing
copies of public information may not be excessive and may not exceed the actual cost of
producing the information or for making public information that exists in a paper record
available for inspection. A governmental body, other than an agency of state government, may
determine its own charges for providing copies of public information and its own charge,
deposit, or bond for making public information that exists in a paper record available for
inspection but may not charge an amount that is greater than 25 percent more than the amount
established by the attorney general unless the governmental body requests an exemption under
Subsection (c).
(b) The rules of the attorney general shall prescribe the methods for computing the charges for
providing copies of public information in paper, electronic, and other kinds of media and the
charge, deposit, or bond required for making public information that exists in a paper record
available for inspection. The rules shall establish costs for various components of charges for
providing copies of public information that shall be used by each governmental body in
providing copies of public information or making public information that exists in a paper record
available for inspection.
(c) A governmental body may request that it be exempt from part or all of the rules adopted by the
attorney general for determining charges for providing copies of public information or the
charge, deposit, or bond required for making public information that exists in a paper record
available for inspection. The request must be made in writing to the attorney general and must
state the reason for the exemption. If the attorney general determines that good cause exists for
exempting a governmental body from a part or all of the rules, the attorney general shall give
written notice of the determination to the governmental body within 90 days of the request. On
receipt of the determination, the governmental body may amend its charges for providing copies
of public information or its charge, deposit, or bond required for making public information that
exists in a paper record available for inspection according to the determination of the attorney
general.
(d) The attorney general shall publish annually in the Texas Register a list of the governmental
bodies that have authorization from the attorney general to adopt any modified rules for
determining the cost of providing copies of public information or making public information that
exists in a paper record available for inspection.
(e) The rules of the attorney general do not apply to a state governmental body that is not a state
agency for purposes of Subtitle D, Title 10.

240
Appendix 23
552.263.
Bond for Payment of Costs or Cash Prepayment for Preparation of Copy of

Public Information
(a) An officer for public information or the officers agent may require a deposit or bond for
payment of anticipated costs for the preparation of a copy of public information if:
(1)
the officer for public information or the officers agent has provided the requestor with the
written itemized statement required under Section 552.2615 detailing the estimated charge
for providing the copy; and
(2)
the charge for providing the copy of the public information specifically requested by the
requestor is estimated by the governmental body to exceed:
(A) $100, if the governmental body has more than 15 full-time employees; or
(B) $50, if the governmental body has fewer than 16 full-time employees.
(b) The officer for public information or the officers agent may not require a deposit or bond be
paid under Subsection (a) as a down payment for copies of public information that the requestor
may request in the future.
(c) An officer for public information or the officers agent may require a deposit or bond for
payment of unpaid amounts owing to the governmental body in relation to previous requests that
the requestor has made under this chapter before preparing a copy of public information in
response to a new request if those unpaid amounts exceed $100. The officer for public
information or the officers agent may not seek payment of those unpaid amounts through any
other means.
(d) The governmental body must fully document the existence and amount of those unpaid amounts
or the amount of any anticipated costs, as applicable, before requiring a deposit or bond under
this section. The documentation is subject to required public disclosure under this chapter.
(e) For purposes of Subchapters F and G, a request for a copy of public information is considered
to have been received by a governmental body on the date the governmental body receives the
deposit or bond for payment of anticipated costs or unpaid amounts if the governmental bodys
officer for public information or the officers agent requires a deposit or bond in accordance with
this section.
(e-1) If a requestor modifies the request in response to the requirement of a deposit or bond
authorized by this section, the modified request is considered a separate request for the
purposes of this chapter and is considered received on the date the governmental body receives
the written modified request.
(f) A requestor who fails to make a deposit or post a bond required under Subsection (a) before the
10th business day after the date the deposit or bond is required is considered to have withdrawn

241
Appendix 23
the request for the copy of the public information that precipitated the requirement of the deposit
or bond.
552.264.
Copy of Public Information Requested by Member of Legislature
One copy of public information that is requested from a state agency by a member, agency, or
committee of the legislature under Section 552.008 shall be provided without charge.
552.265.
Charge For Paper Copy Provided by District or County Clerk
The charge for providing a paper copy made by a district or county clerks office shall be the charge
provided by Chapter 51 of this code, Chapter 118, Local Government Code, or other applicable law.
552.266.
Charge For Copy of Public Information Provided by Municipal Court Clerk
The charge for providing a copy made by a municipal court clerk shall be the charge provided by
municipal ordinance.
552.2661. Charge for Copy of Public Information Provided by School District
A school district that receives a request to produce public information for inspection or publication
or to produce copies of public information in response to a requestor who, within the preceding 180
days, has accepted but failed to pay written itemized statements of estimated charges from the district
as provided under Section 552.261(b) may require the requestor to pay the estimated charges for the
request before the request is fulfilled.
552.267.
Waiver or Reduction of Charge for Providing Copy of Public Information
(a) A governmental body shall provide a copy of public information without charge or at a reduced
charge if the governmental body determines that waiver or reduction of the charge is in the
public interest because providing the copy of the information primarily benefits the general
public.
(b) If the cost to a governmental body of processing the collection of a charge for providing a copy
of public information will exceed the amount of the charge, the governmental body may waive
the charge.
552.268.
Efficient Use of Public Resources
A governmental body shall make reasonably efficient use of supplies and other resources to avoid
excessive reproduction costs.
552.269.
Overcharge or Overpayment for Copy of Public Information
(a) A person who believes the person has been overcharged for being provided with a copy of public
information may complain to the attorney general in writing of the alleged overcharge, setting

242
Appendix 23
forth the reasons why the person believes the charges are excessive. The attorney general shall
review the complaint and make a determination in writing as to the appropriate charge for
providing the copy of the requested information. The governmental body shall respond to the
attorney general to any written questions asked of the governmental body by the attorney general
regarding the charges for providing the copy of the public information. The response must be
made to the attorney general within 10 business days after the date the questions are received by
the governmental body. If the attorney general determines that a governmental body has
overcharged for providing the copy of requested public information, the governmental body shall
promptly adjust its charges in accordance with the determination of the attorney general.
(b) A person who overpays for a copy of public information because a governmental body refuses
or fails to follow the rules for charges adopted by the attorney general is entitled to recover three
times the amount of the overcharge if the governmental body did not act in good faith in
computing the costs.
552.270.
Charge for Government Publication
(a) This subchapter does not apply to a publication that is compiled and printed by or for a
governmental body for public dissemination. If the cost of the publication is not determined by
state law, a governmental body may determine the charge for providing the publication.
(b) This section does not prohibit a governmental body from providing a publication free of charge
if state law does not require that a certain charge be made.
552.271.
Inspection of Public Information in Paper Record if Copy Not Requested
(a) If the requestor does not request a copy of public information, a charge may not be imposed for
making available for inspection any public information that exists in a paper record, except as
provided by this section.
(b) If a requested page contains confidential information that must be edited from the record before
the information can be made available for inspection, the governmental body may charge for the
cost of making a photocopy of the page from which confidential information must be edited. No
charge other than the cost of the photocopy may be imposed under this subsection.
(c) Except as provided by Subsection (d), an officer for public information or the officers agent may
require a requestor to pay, or to make a deposit or post a bond for the payment of, anticipated
personnel costs for making available for inspection public information that exists in paper
records only if:
(1)
the public information specifically requested by the requestor:

(A) is older than five years; or

243
Appendix 23
(B) completely fills, or when assembled will completely fill, six or more archival boxes;
and
(2)
the officer for public information or the officers agent estimates that more than five hours
will be required to make the public information available for inspection.
(d) If the governmental body has fewer than 16 full-time employees, the payment, the deposit, or the
bond authorized by Subsection (c) may be required only if:
(1)
the public information specifically requested by the requestor:

(A) is older than three years; or
(B) completely fills, or when assembled will completely fill, three or more archival boxes;
and
(2)
the officer for public information or the officers agent estimates that more than two hours
will be required to make the public information available for inspection.
552.272.
Inspection of Electronic Record if Copy Not Requested
(a) In response to a request to inspect information that exists in an electronic medium and that is not
available directly on-line to the requestor, a charge may not be imposed for access to the
information, unless complying with the request will require programming or manipulation of
data. If programming or manipulation of data is required, the governmental body shall notify the
requestor before assembling the information and provide the requestor with an estimate of
charges that will be imposed to make the information available. A charge under this section
must be assessed in accordance with this subchapter.
(b) If public information exists in an electronic form on a computer owned or leased by a
governmental body and if the public has direct access to that computer through a computer
network or other means, the electronic form of the information may be electronically copied from
that computer without charge if accessing the information does not require processing,
programming, or manipulation on the government-owned or government-leased computer before
the information is copied.
(c) If public information exists in an electronic form on a computer owned or leased by a
governmental body and if the public has direct access to that computer through a computer
network or other means and the information requires processing, programming, or manipulation
before it can be electronically copied, a governmental body may impose charges in accordance
with this subchapter.
(d) If information is created or kept in an electronic form, a governmental body is encouraged to
explore options to separate out confidential information and to make public information available
to the public through electronic access through a computer network or by other means.

244
Appendix 23
(e) The provisions of this section that prohibit a governmental entity from imposing a charge for
access to information that exists in an electronic medium do not apply to the collection of a fee
set by the supreme court after consultation with the Judicial Committee on Information
Technology as authorized by Section 77.031 for the use of a computerized electronic judicial
information system.
552.274. Report by Attorney General on Cost of Copies
(a) The attorney general shall:
(1)
biennially update a report prepared by the attorney general about the charges made by state
agencies for providing copies of public information; and
(2)
provide a copy of the updated report on the attorney generals open records page on the
Internet not later than March 1 of each even-numbered year.
(b) Repealed by Acts 2011, 82nd Leg., ch. 1083 (S.B. 1179), 25(62).
(c) In this section, state agency has the meaning assigned by Sections 2151.002(2)(A) and (C).
552.275. Requests That Require Large Amounts of Employee or Personnel Time
(a) A governmental body may establish a reasonable limit on the amount of time that personnel of
the governmental body are required to spend producing public information for inspection or
duplication by a requestor, or providing copies of public information to a requestor, without
recovering its costs attributable to that personnel time.
(b) A time limit established under Subsection (a) may not be less than 36 hours for a requestor
during the 12-month period that corresponds to the fiscal year of the governmental body.
(c) In determining whether a time limit established under Subsection (a) applies, any time spent
complying with a request for public information submitted in the name of a minor, as defined
by Section 101.003(a), Family Code, is to be included in the calculation of the cumulative
amount of time spent complying with a request for public information by a parent, guardian, or
other person who has control of the minor under a court order and with whom the minor resides,
unless that parent, guardian, or other person establishes that another person submitted that
request in the name of the minor.
(d) If a governmental body establishes a time limit under Subsection (a), each time the governmental
body complies with a request for public information, the governmental body shall provide the
requestor with a written statement of the amount of personnel time spent complying with that
request and the cumulative amount of time spent complying with requests for public information
from that requestor during the applicable 12-month period. The amount of time spent preparing
the written statement may not be included in the amount of time included in the statement
provided to the requestor under this subsection.

245
Appendix 23
(e) If in connection with a request for public information, the cumulative amount of personnel time
spent complying with requests for public information from the same requestor equals or exceeds
the limit established by the governmental body under Subsection (a), the governmental body
shall provide the requestor with a written estimate of the total cost, including materials,
personnel time, and overhead expenses, necessary to comply with the request. The written
estimate must be provided to the requestor on or before the 10th day after the date on which the
public information was requested. The amount of this charge relating to the cost of locating,
compiling, and producing the public information shall be established by rules prescribed by the
attorney general under Sections 552.262(a) and (b).
(f) If the governmental body determines that additional time is required to prepare the written
estimate under Subsection (e) and provides the requestor with a written statement of that
determination, the governmental body must provide the written statement under that subsection
as soon as practicable, but on or before the 10th day after the date the governmental body
provided the statement under this subsection.
(g) If a governmental body provides a requestor with the written statement under Subsection (e), the
governmental body is not required to produce public information for inspection or duplication
or to provide copies of public information in response to the requestors request unless on or
before the 10th day after the date the governmental body provided the written statement under
that subsection, the requestor submits a statement in writing to the governmental body in which
the requestor commits to pay the lesser of:
(1)
the actual costs incurred in complying with the requestors request, including the cost of
materials and personnel time and overhead; or
(2)
the amount stated in the written statement provided under Subsection (e).
(h) If the requestor fails or refuses to submit the written statement under Subsection (g), the
requestor is considered to have withdrawn the requestors pending request for public
information.
(i) This section does not prohibit a governmental body from providing a copy of public information
without charge or at a reduced rate under Section 552.267 or from waiving a charge for providing
a copy of public information under that section.
(j) This section does not apply if the requestor is and individual who, for a substantial portion of the
individuals livelihood or for substantial financial gain, gathers, compiles, prepares, collects,
photographs, records, writes, edits, reports, investigates, processes, or publishes news or
information for and is seeking the information for:
(1)
a radio or television broadcast station that holds a broadcast license for an assigned
frequency issued by the Federal Communications Commission;

246
Appendix 23
(2)
a newspaper that is qualified under Section 2051.044 to publish legal notices or is a free
newspaper of general circulation and that is published at least once a week and available
and of interest to the general public in connection with the dissemination of news;
(3)
a newspaper of general circulation that is published on the Internet by a news medium

engaged in the business of disseminating news or information to the general public; or
(4)
a magazine that is published at least once a week or on the Internet by a news medium
engaged in the business of disseminating news or information to the general public.
(k) This section does not apply if the requestor is an elected official of the United States, this state,
or a political subdivision of this state.
(l) This section does not apply if the requestor is a representative of a publicly funded legal services
organization that is exempt from federal income taxation under Section 501(a), Internal Revenue
Code of 1986, as amended, by being listed as an exempt entity under Section 501(c)(3) of that
code.
SUBCHAPTER G. ATTORNEY GENERAL DECISIONS
552.301. Request for Attorney General Decision
(a) A governmental body that receives a written request for information that it wishes to withhold
from public disclosure and that it considers to be within one of the exceptions under Subchapter
C must ask for a decision from the attorney general about whether the information is within that
exception if there has not been a previous determination about whether the information falls
within one of the exceptions.
(a-1) For the purposes of this subchapter, if a governmental body receives a written request by
United States mail and cannot adequately establish the actual date on which the governmental
body received the request, the written request is considered to have been received by the
governmental body on the third business day after the date of the postmark on a properly
addressed request.
(b) The governmental body must ask for the attorney generals decision and state the exceptions that
apply within a reasonable time but not later than the 10th business day after the date of receiving
the written request.
(c) For purposes of this subchapter, a written request includes a request made in writing that is sent
to the officer for public information, or the person designated by that officer, by electronic mail
or facsimile transmission.
(d) A governmental body that requests an attorney general decision under Subsection (a) must
provide to the requestor within a reasonable time but not later than the 10th business day after
the date of receiving the requestors written request:

247
Appendix 23
(1)
a written statement that the governmental body wishes to withhold the requested
information and has asked for a decision from the attorney general about whether the
information is within an exception to public disclosure; and
(2)
a copy of the governmental bodys written communication to the attorney general asking
for the decision or, if the governmental bodys written communication to the attorney
general discloses the requested information, a redacted copy of that written
communication.
(e) A governmental body that requests an attorney general decision under Subsection (a) must within
a reasonable time but not later than the 15th business day after the date of receiving the written
request:
(1)
submit to the attorney general:

(A) written comments stating the reasons why the stated exceptions apply that would
allow the information to be withheld;
(B) a copy of the written request for information;
(C) a signed statement as to the date on which the written request for information was
received by the governmental body or evidence sufficient to establish that date; and
(D) a copy of the specific information requested, or submit representative samples of the
information if a voluminous amount of information was requested; and
(2)
label that copy of the specific information, or of the representative samples, to indicate
which exceptions apply to which parts of the copy.
(e-1) A governmental body that submits written comments to the attorney general under Subsection
(e)(1)(A) shall send a copy of those comments to the person who requested the information
from the governmental body not later than the 15th business day after the date of receiving the
written request. If the written comments disclose or contain the substance of the information
requested, the copy of the comments provided to the person must be a redacted copy.
(f) A governmental body must release the requested information and is prohibited from asking for
a decision from the attorney general about whether information requested under this chapter is
within an exception under Subchapter C if:
(1)
the governmental body has previously requested and received a determination from the
attorney general concerning the precise information at issue in a pending request; and
(2)
the attorney general or a court determined that the information is public information under
this chapter that is not excepted by Subchapter C.

248
Appendix 23
(g) A governmental body may ask for another decision from the attorney general concerning the
precise information that was at issue in a prior decision made by the attorney general under this
subchapter if:
(1)
a suit challenging the prior decision was timely filed against the attorney general in
accordance with this chapter concerning the precise information at issue;
(2)
the attorney general determines that the requestor has voluntarily withdrawn the request for
the information in writing or has abandoned the request; and
(3)
the parties agree to dismiss the lawsuit.
552.302.
Failure to Make Timely Request for Attorney General Decision; Presumption that
Information Is Public
If a governmental body does not request an attorney general decision as provided by Section 552.301
and provide the requestor with the information required by Sections 552.301(d) and (e-1), the
information requested in writing is presumed to be subject to required public disclosure and must
be released unless there is a compelling reason to withhold the information.
552.303.
Delivery of Requested Information to Attorney General; Disclosure of Requested

Information; Attorney General Request for Submission of Additional Information
(a) A governmental body that requests an attorney general decision under this subchapter shall
supply to the attorney general, in accordance with Section 552.301, the specific information
requested. Unless the information requested is confidential by law, the governmental body may
disclose the requested information to the public or to the requestor before the attorney general
makes a final determination that the requested information is public or, if suit is filed under this
chapter, before a final determination that the requested information is public has been made by
the court with jurisdiction over the suit, except as otherwise provided by Section 552.322.
(b) The attorney general may determine whether a governmental bodys submission of information
to the attorney general under Section 552.301 is sufficient to render a decision.
(c) If the attorney general determines that information in addition to that required by Section
552.301 is necessary to render a decision, the attorney general shall give written notice of that
fact to the governmental body and the requestor.
(d) A governmental body notified under Subsection (c) shall submit the necessary additional
information to the attorney general not later than the seventh calendar day after the date the
notice is received.
(e) If a governmental body does not comply with Subsection (d), the information that is the subject
of a persons request to the governmental body and regarding which the governmental body fails
to comply with Subsection (d) is presumed to be subject to required public disclosure and must
be released unless there exists a compelling reason to withhold the information.

249
Appendix 23
552.3035. Disclosure of Requested Information by Attorney General

The attorney general may not disclose to the requestor or the public any information submitted to
the attorney general under Section 552.301(e)(1)(D).
552.304.
Submission of Public Comments
(a) A person may submit written comments stating reasons why the information at issue in a request
for an attorney general decision should or should not be released.
(b) A person who submits written comments to the attorney general under Subsection (a) shall send
a copy of those comments to both the person who requested the information from the
governmental body and the governmental body. If the written comments submitted to the
attorney general disclose or contain the substance of the information requested from the
governmental body, the copy of the comments sent to the person who requested the information
must be a redacted copy.
(c) In this section, written comments includes a letter, a memorandum, or a brief.
552.305.
Information Involving Privacy or Property Interests of Third Party
(a) In a case in which information is requested under this chapter and a persons privacy or property
interests may be involved, including a case under Section 552.101, 552.104, 552.110, or
552.114, a governmental body may decline to release the information for the purpose of
requesting an attorney general decision.
(b) A person whose interests may be involved under Subsection (a), or any other person, may submit
in writing to the attorney general the persons reasons why the information should be withheld
or released.
(c) The governmental body may, but is not required to, submit its reasons why the information
should be withheld or released.
(d) If release of a persons proprietary information may be subject to exception under Section
552.101, 552.110, 552.113, or 552.131, the governmental body that requests an attorney general
decision under Section 552.301 shall make a good faith attempt to notify that person of the
request for the attorney general decision. Notice under this subsection must:
(1)
be in writing and sent within a reasonable time not later than the 10th business day after
the date the governmental body receives the request for the information; and
(2)
include:
(A) a copy of the written request for the information, if any, received by the governmental
body; and

250
Appendix 23
(B) a statement, in the form prescribed by the attorney general, that the person is entitled
to submit in writing to the attorney general within a reasonable time not later than the
10th business day after the date the person receives the notice:
(i) each reason the person has as to why the information should be withheld; and
(ii) a letter, memorandum, or brief in support of that reason.
(e) A person who submits a letter, memorandum, or brief to the attorney general under Subsection
(d) shall send a copy of that letter, memorandum, or brief to the person who requested the
information from the governmental body. If the letter, memorandum, or brief submitted to the
attorney general contains the substance of the information requested, the copy of the letter,
memorandum, or brief may be a redacted copy.
552.306.
Rendition of Attorney General Decision; Issuance of Written Opinion
(a) Except as provided by Section 552.011, the attorney general shall promptly render a decision
requested under this subchapter, consistent with the standards of due process, determining
whether the requested information is within one of the exceptions of Subchapter C. The attorney
general shall render the decision not later than the 45th business day after the date the attorney
general received the request for a decision. If the attorney general is unable to issue the decision
within the 45-day period, the attorney general may extend the period for issuing the decision by
an additional 10 business days by informing the governmental body and the requestor, during the
original 45-day period, of the reason for the delay.
(b) The attorney general shall issue a written opinion of the determination and shall provide a copy
of the opinion to the requestor.
552.307.
Special Right of Access; Attorney General Decisions
(a) If a governmental body determines that information subject to a special right of access under
Section 552.023 is exempt from disclosure under an exception of Subchapter C, other than an
exception intended to protect the privacy interest of the requestor or the person whom the
requestor is authorized to represent, the governmental body shall, before disclosing the
information, submit a written request for a decision to the attorney general under the procedures
of this subchapter.
(b) If a decision is not requested under Subsection (a), the governmental body shall release the
information to the person with a special right of access under Section 552.023 not later than the
10th business day after the date of receiving the request for information.
552.308.
Timeliness of Action by United States Mail, Interagency Mail, or Common

Contract Carrier
(a) When this subchapter requires a request, notice, or other document to be submitted or otherwise
given to a person within a specified period, the requirement is met in a timely fashion if the

251
Appendix 23
document is sent to the person by first class United States mail or common or contract carrier
properly addressed with postage or handling charges prepaid and:
(1)
it bears a post office cancellation mark or a receipt mark of a common or contract carrier
indicating a time within that period; or
(2)
the person required to submit or otherwise give the document furnishes satisfactory proof
that it was deposited in the mail or with a common or contract carrier within that period.
(b) When this subchapter requires an agency of this state to submit or otherwise give to the attorney
general within a specified period a request, notice, or other writing, the requirement is met in a
timely fashion if:
(1)
the request, notice, or other writing is sent to the attorney general by interagency mail; and
(2)
the agency provides evidence sufficient to establish that the request, notice, or other writing
was deposited in the interagency mail within that period.
552.309. Timeliness of Action by Electronic Submission

(a) When this subchapter requires a request, notice, or other document to be submitted or otherwise
given to the attorney general within a specified period, the requirement is met in a timely fashion
if the document is submitted to the attorney general through the attorney generals designated
electronic filing system within that period.
(b) The attorney general may electronically transmit a notice, decision, or other document. When
this subchapter requires the attorney general to deliver a notice, decision, or other document
within a specified period, the requirement is met in a timely fashion if the document is
electronically transmitted by the attorney general within that period.
(c) This section does not affect the right of a person or governmental body to submit information
to the attorney general under Section 552.308.
SUBCHAPTER H. CIVIL ENFORCEMENT

552.321.
Suit for Writ of Mandamus
(a) 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 generals decision as provided by Subchapter G or refuses to
supply public information or information that the attorney general has determined is public
information that is not excepted from disclosure under Subchapter C.
(b) A suit filed by a requestor under this section must be filed in a district court for the county in
which the main offices of the governmental body are located. A suit filed by the attorney general

252
Appendix 23
under this section must be filed in a district court of Travis County, except that a suit against a
municipality with a population of 100,000 or less must be filed in a district court for the county
in which the main offices of the municipality are located.
552.3215. Declaratory Judgment or Injunctive Relief
(1)
Complainant means a person who claims to be the victim of a violation of this chapter.
(2)
State agency means a board, commission, department, office, or other agency that:
(A) is in the executive branch of state government;
(B) was created by the constitution or a statute of this state; and
(C) has statewide jurisdiction.
(b) 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.
(c) The district or county attorney for the county in which a governmental body other than a state
agency is located or the attorney general may bring the action in the name of the state only in a
district court for that county. If the governmental body extends into more than one county, the
action may be brought only in the county in which the administrative offices of the governmental
body are located.
(d) If the governmental body is a state agency, the Travis County district attorney or the attorney
general may bring the action in the name of the state only in a district court of Travis County.
(e) A complainant may file a complaint alleging a violation of this chapter. The complaint must be
filed with the district or county attorney of the county in which the governmental body is located
unless the governmental body is the district or county attorney. If the governmental body
extends into more than one county, the complaint must be filed with the district or county
attorney of the county in which the administrative offices of the governmental body are located.
If the governmental body is a state agency, the complaint may be filed with the Travis County
district attorney. If the governmental body is the district or county attorney, the complaint must
be filed with the attorney general. To be valid, a complaint must:
(1)
be in writing and signed by the complainant;
(2)
state the name of the governmental body that allegedly committed the violation, as
accurately as can be done by the complainant;
(3)
state the time and place of the alleged commission of the violation, as definitely as can be
done by the complainant; and

253
Appendix 23
(4)
in general terms, describe the violation.
(f) A district or county attorney with whom the complaint is filed shall indicate on the face of the
written complaint the date the complaint is filed.
(g) Before the 31st day after the date a complaint is filed under Subsection (e), the district or county
attorney shall:
(1)
determine whether:
(A) the violation alleged in the complaint was committed; and
(B) an action will be brought against the governmental body under this section; and
(2)
notify the complainant in writing of those determinations.
(h) Notwithstanding Subsection (g)(1), if the district or county attorney believes that that official has
a conflict of interest that would preclude that official from bringing an action under this section
against the governmental body complained of, before the 31st day after the date the complaint
was filed the county or district attorney shall inform the complainant of that officials belief and
of the complainants right to file the complaint with the attorney general. If the district or county
attorney determines not to bring an action under this section, the district or county attorney shall:
(1)
include a statement of the basis for that determination; and
(2)
return the complaint to the complainant.
(i) If the district or county attorney determines not to bring an action under this section, the
complainant is entitled to file the complaint with the attorney general before the 31st day after
the date the complaint is returned to the complainant. On receipt of the written complaint, the
attorney general shall comply with each requirement in Subsections (g) and (h) in the time
required by those subsections. If the attorney general decides to bring an action under this
section against a governmental body located only in one county in response to the complaint, the
attorney general must comply with Subsection (c).
(j) An action may be brought under this section only if the official proposing to bring the action
notifies the governmental body in writing of the officials determination that the alleged violation
was committed and the governmental body does not cure the violation before the fourth day after
the date the governmental body receives the notice.
(k) An action authorized by this section is in addition to any other civil, administrative, or criminal
action provided by this chapter or another law.

254
Appendix 23
552.322.
Discovery of Information Under Protective Order Pending Final Determination
In a suit filed under this chapter, the court may order that the information at issue may be discovered
only under a protective order until a final determination is made.
552.3221. In Camera Inspection of Information
(a) In any suit filed under this chapter, the information at issue may be filed with the court for in
camera inspection as is necessary for the adjudication of the case.
(b) Upon receipt of the information at issue for in camera inspection, the court shall enter an order
that prevents release to or access by any person other than the court, a reviewing court of appeals,
or parties permitted to inspect the information pursuant to a protective order. The order shall
further note the filing date and time.
(c) The information at issue filed with the court for in camera inspection shall be:
(1)
appended to the order and transmitted by the court to the clerk for filing as information
at issue;
(2)
maintained in a sealed envelope or in a manner that precludes disclosure of the

information; and
(3)
transmitted by the clerk to any court of appeal as part of the clerks record.
(d) Information filed with the court under this section does not constitute court records within the
meaning of Rule 76a, Texas Rules of Civil Procedure, and shall not be made available by the
clerk or any custodian of record for public inspection.
(e) For purposes of this section, information at issue is defined as information held by a
governmental body that forms the basis of a suit under this chapter.
552.323.
Assessment of Costs of Litigation and Reasonable Attorney Fees
(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:
(1)
a judgment or an order of a court applicable to the governmental body;
(2)
the published opinion of an appellate court; or
(3)
a written decision of the attorney general, including a decision issued under Subchapter G
or an opinion issued under Section 402.042.

255
Appendix 23
(b) In an action brought under Section 552.324, the court may assess costs of litigation and
reasonable attorneys fees incurred by a plaintiff or defendant who substantially prevails. In
exercising its discretion under this subsection, the court shall consider whether the conduct of
the governmental body had a reasonable basis in law and whether the litigation was brought in
good faith.
552.324.
Suit by Governmental Body
(a) The only suit a governmental body may file seeking to withhold information from a requestor
is a suit that:
(1)
is filed in a Travis County district court against the attorney general in accordance with
Section 552.325 and
(2)
seeks declaratory relief from compliance with a decision by the attorney general issued
under Subchapter G.
(b) The governmental body must bring the suit not later than the 30th calendar day after the date the
governmental body receives the decision of the attorney general determining that the requested
information must be disclosed to the requestor. If the governmental body does not bring suit
within that period, the governmental body shall comply with the decision of the attorney general.
If a governmental body wishes to preserve an affirmative defense for its officer of public
information as provided in Section 552.353(b)(3), a suit must be filed within the deadline
provided in Section 552.353(b)(3).
552.325.
Parties to Suit Seeking to Withhold Information
(a) A governmental body, officer for public information, or other person or entity that files a suit
seeking to withhold information from a requestor may not file suit against the person requesting
the information. The requestor is entitled to intervene in the suit.
(b) The governmental body, officer for public information, or other person or entity that files the suit
shall demonstrate to the court that the governmental body, officer for public information, or other
person or entity made a timely good faith effort to inform the requestor, by certified mail or by
another written method of notice that requires the return of a receipt, of:
(1)
the existence of the suit, including the subject matter and cause number of the suit and the
court in which the suit is filed;
(2)
the requestors right to intervene in the suit or to choose to not participate in the suit;
(3)
the fact that the suit is against the attorney general in Travis County district court; and
(4)
the address and phone number of the office of the attorney general.

256
Appendix 23
(c) If the attorney general enters into a proposed settlement that all or part of the information that
is the subject of the suit should be withheld, the attorney general shall notify the requestor of that
decision and, if the requestor has not intervened in the suit, of the requestors right to intervene
to contest the withholding. The attorney general shall notify the requestor:
(1)
in the manner required by the Texas Rules of Civil Procedure, if the requestor has
intervened in the suit; or
(2)
by certified mail or by another written method of notice that requires the return of a receipt,
if the requestor has not intervened in the suit.
(d) The court shall allow the requestor a reasonable period to intervene after the attorney general
attempts to give notice under Subsection (c)(2).
552.326.
Failure to Raise Exceptions Before Attorney General
(a) Except as provided by Subsection (b), the only exceptions to required disclosure within
Subchapter C that a governmental body may raise in a suit filed under this chapter are exceptions
that the governmental body properly raised before the attorney general in connection with its
request for a decision regarding the matter under Subchapter G.
(b) Subsection (a) does not prohibit a governmental body from raising an exception:
(1)
based on a requirement of federal law; or
(2)
involving the property or privacy interests of another person.
552.327.
Dismissal of Suit Due to Requestors Withdrawal or Abandonment of Request
A court may dismiss a suit challenging a decision of the attorney general brought in accordance with
this chapter if:
(1)
all parties to the suit agree to the dismissal; and
(2)
the attorney general determines and represents to the court that the requestor has
voluntarily withdrawn the request for information in writing or has abandoned the request.
SUBCHAPTER I. CRIMINAL VIOLATIONS

552.351.
Destruction, Removal, or Alteration of Public Information
(a) A person commits an offense if the person wilfully destroys, mutilates, removes without
permission as provided by this chapter, or alters public information.
(b) An offense under this section is a misdemeanor punishable by:

257
Appendix 23
(1)
a fine of not less than $25 or more than $4,000;
(2)
confinement in the county jail for not less than three days or more than three months; or
(3)
both the fine and confinement.
(c) It is an exception to the application of Subsection (a) that the public information was transferred
under Section 441.204.
552.352.
Distribution or Misuse of Confidential Information
(a) A person commits an offense if the person distributes information considered confidential under
the terms of this chapter.
(a-1) An officer or employee of a governmental body who obtains access to confidential information
under Section 552.008 commits an offense if the officer or employee knowingly:
(1)
uses the confidential information for a purpose other than the purpose for which the
information was received or for a purpose unrelated to the law that permitted the officer
or employee to obtain access to the information, including solicitation of political
contributions or solicitation of clients;
(2)
permits inspection of the confidential information by a person who is not authorized to

inspect the information; or
(3)
discloses the confidential information to a person who is not authorized to receive the
information.
(a-2) For purposes of Subsection (a-1), a member of an advisory committee to a governmental body
who obtains access to confidential information in that capacity is considered to be an officer
or employee of the governmental body.
(b) An offense under this section is a misdemeanor punishable by:
(1)
a fine of not more than $1,000;
(2)
confinement in the county jail for not more than six months; or
(3)
(c) A violation under this section constitutes official misconduct.

258
Appendix 23
552.353.
Failure or Refusal of Officer for Public Information to Provide Access to or

Copying of Public Information
(a) An officer for public information, or the officers agent, commits an offense if, with criminal
negligence, the officer or the officers agent fails or refuses to give access to, or to permit or
provide copying of, public information to a requestor as provided by this chapter.
(b) It is an affirmative defense to prosecution under Subsection (a) that the officer for public
information reasonably believed that public access to the requested information was not required
and that:
(1)
the officer acted in reasonable reliance on a court order or a written interpretation of this
chapter contained in an opinion of a court of record or of the attorney general issued under
Subchapter G;
(2)
the officer requested a decision from the attorney general in accordance with Subchapter
G, and the decision is pending; or
(3)
not later than the 10th calendar day after the date of receipt of a decision by the attorney
general that the information is public, the officer or the governmental body for whom the
defendant is the officer for public information filed a petition for a declaratory judgment
against the attorney general in a Travis County district court seeking relief from
compliance with the decision of the attorney general, as provided by Section 552.324, and
the cause is pending.
(c) It is an affirmative defense to prosecution under Subsection (a) that a person or entity has, not
later than the 10th calendar day after the date of receipt by a governmental body of a decision by
the attorney general that the information is public, filed a cause of action seeking relief from
compliance with the decision of the attorney general, as provided by Section 552.325, and the
cause is pending.
(d) It is an affirmative defense to prosecution under Subsection (a) that the defendant is the agent
of an officer for public information and that the agent reasonably relied on the written instruction
of the officer for public information not to disclose the public information requested.
(e) An offense under this section is a misdemeanor punishable by:
(1)
a fine of not more than $1,000;
(2)
confinement in the county jail for not more than six months; or
(3)
(f) A violation under this section constitutes official misconduct.

259
Appendix 23
PART FOUR: RULES PROMULGATED

GENERAL
BY
THE
ATTORNEY
TEXAS ADMINISTRATIVE CODE, TITLE 1, CHAPTER 63

Subchapter A.
63.1.
Confidentiality of Information Requested for Legislative

Purposes
Definition, Purpose, and Application
(a)
In this subchapter, legislative requestor means an individual member, agency, or

committee of the legislature.
(b)
This subchapter governs the procedures by which the attorney general shall render a
decision sought by a legislative requestor under Texas Government Code 552.008(b-2).
(c)
Texas Government Code 552.308 applies to all deadlines established in this subchapter.
63.2.
Request for Attorney General Decision Regarding Confidentiality
(a)
If a governmental body that receives a written request for information from a legislative
requestor under Texas Government Code 552.008 determines the requested information
is confidential and requires the legislative requestor to sign a confidentiality agreement, the
legislative requestor may ask for an attorney general decision about whether the
information covered by the confidentiality agreement is confidential under law.
(b)
A request for an attorney general decision must:
(1) be in writing and signed by the legislative requestor;

(2) state the name of the governmental body to whom the original request for information was
made; and
(3) state the date the original request was made.
(c)
The legislative requestor must submit a copy of the original request with the request for a
decision. If the legislative requestor is unable to do so, the legislative requestor must
include a written description of the original request in the request for a decision.
(d)
The legislative requestor may submit written comments to the attorney general stating
reasons why the requested information should not be considered confidential by law. The
written comments must be labeled to indicate whether any portion of the comments
discloses or contains the substance of the specific information deemed confidential by the
governmental body. A legislative requestor who submits written comments to the attorney
general shall send a copy of those comments to the governmental body.

260
Appendix 23
Rules Promulgated by the Attorney General
(e)
63.3.
The deadlines in 63.3 and 63.6 of this subchapter commence on the date on which the
attorney general receives from the legislative requestor all of the information required by
subsections (b) and (c) of this section.
Notice
(a)
The attorney general shall notify the governmental body in writing of a request for a
decision and provide the governmental body a copy of the request for a decision within a
reasonable time but not later than the 5th business day after the date of receiving the
request for a decision.
(b)
The attorney general shall provide the legislative requestor a copy of the written notice to
the governmental body, excluding a copy of the request for a decision, within a reasonable
time but not later than the 5th business day after the date of receiving the request for a
decision.
63.4.
(a)
Submission of Documents and Comments

Within a reasonable time but not later than the 10th business day after the date of receiving
the attorney generals written notice of the request for a decision, a governmental body
shall:
(1) submit to the attorney general:

(A) written comments stating the law that deems the requested information confidential and
the reasons why the stated law applies to the information;
(B) a copy of the written request for information; and
(C) a copy of the specific information deemed confidential by the governmental body, or
representative samples of the information if a voluminous amount of information was
requested; and
(2) label the copy of the specific information, or the representative samples, to indicate which
laws apply to which parts of the copy; and
(3) label the written comments to indicate whether any portion of the comments discloses or
contains the substance of the specific information deemed confidential by the governmental
body.
(b)
A governmental body that submits written comments to the attorney general shall send a
copy of those comments to the legislative requestor within a reasonable time but not later
than the 10th business day after the date of receiving the attorney generals written notice
of the request for a decision.

261
Appendix 23
(c)
If a governmental body determines a person may have a property interest in the requested
information, the governmental body shall notify that person in accordance with Texas
Government Code 552.305(d). The governmental body shall notify the affected person
not later than the 10th business day after receiving written notice of the request for a
decision.
(d)
If a person notified in accordance with Texas Government Code 552.305 decides to

submit written comments to the attorney general, the person must do so not later than the
10th business day after receiving the notice. The written comments must be labeled to
indicate whether any portion of the comments discloses or contains the substance of the
specific information deemed confidential by the governmental body.
(e)
Any interested person may submit written comments to the attorney general stating why
the requested information is or is not confidential. The written comments must be labeled
to indicate whether any portion of the comments discloses or contains the substance of the
specific information deemed confidential by the governmental body.
(f)
A person who submits written comments under subsection (d) or (e) of this section shall
send a copy of those comments to both the legislative requestor and the governmental
body.
63.5.
Additional Information
(a)
The attorney general may determine whether a governmental bodys submission of

information under 63.4(a) of this subchapter is sufficient to render a decision.
(b)
If the attorney general determines that information in addition to that required by 63.4(a)
of this subchapter is necessary to render a decision, the attorney general shall give written
notice of that fact to the governmental body and the legislative requestor.
(c)
A governmental body notified under subsection (b) of this section shall submit the
necessary additional information to the attorney general not later than the seventh calendar
day after the date the notice is received.
63.6.
Rendition of Attorney General Decision; Issuance of Written Decision
(a)
The attorney general shall promptly render a decision requested under this subchapter, not
later than the 45th business day after the date of receiving the request for a decision.
(b)
The attorney general shall issue a written decision and shall provide a copy of the decision
to the legislative requestor, the governmental body, and any interested person who
submitted necessary information or a brief to the attorney general about the matter.

262
Appendix 23
Subchapter B.
Review of Public Information Redactions
63.11. Purpose and Application

(a)
This subchapter governs the procedures by which the attorney general shall render a
decision sought by a requestor under Texas Government Code 552.024(c-1),
552.1175(g), 552.130(d), 552.136(d), or 552.138(d).
(b)
Texas Government Code 552.308 and 552.309 apply to all deadlines established in this
subchapter.
63.12. Request for Review by the Attorney General

(a)
If a governmental body redacts or withholds information under Texas Government Code

552.024(c)(2), 552.1175(f), 552.130(c), 552.136(c), or 552.138(c) without requesting
a decision from the attorney general about whether the information may be redacted or
withheld, the requestor may ask the attorney general to review the governmental bodys
determination that the information at issue is excepted from required disclosure.
(b)
A request for review by the attorney general must:
(1) be in writing and signed by the requestor;

(2) state the name of the governmental body to whom the original request for information was
made; and
(3) state the date the original request was made.
(c)
The requestor must submit a copy of the original request with the request for review. If the
requestor is unable to do so, the requestor must include a written description of the original
request in the request for review.
(d)
The requestor may submit written comments to the attorney general stating reasons why
the information at issue should be released.
(e)
The deadlines in 63.13 and 63.16 of this subchapter commence on the date on which
the attorney general receives from the requestor all of the information required by
subsections (b) and (c) of this section.
63.13. Notice
(a)
The attorney general shall notify the governmental body in writing of a request for review
and provide the governmental body a copy of the request for review not later than the 5th
business day after the date of receiving the request for review.

263
Appendix 23
(b)
The attorney general shall provide the requestor a copy of the written notice to the
governmental body, excluding a copy of the request for review, not later than the 5th
business day after the date of receiving the request for review.
63.14. Submission of Documents and Comments

(a)
A governmental body shall provide to the attorney general within a reasonable time but not
later than the 10th business day after the date of receiving the attorney generals written
notice of the request for review:
(1) an unredacted copy of the specific information requested, or representative samples of the
information if a voluminous amount of information was requested;
(2) a copy of the specific information requested, or representative samples of the information
if a voluminous amount of information was requested, illustrating the information redacted
or withheld;
(3) written comments stating the reasons why the information at issue was redacted or
withheld;
(4) a copy of the written request for information; and
(5) a copy of the form letter the governmental body provided to the requestor as required by
Texas Government Code 552.024(c-2), 552.1175(h), 552.130(e), 552.136(e), and
552.138(e).
(b)
A governmental body that submits written comments to the attorney general shall send a
copy of those comments to the requestor within a reasonable time but not later than the
10th business day after the date of receiving the attorney generals written notice of the
request for review. If the written comments disclose or contain the substance of the
information at issue, the copy of the comments provided to the requestor must be a
redacted copy.
(c)
A person may submit written comments to the attorney general stating why the information
at issue in a request for review should or should not be released.
(d)
A person who submits written comments under subsection (c) of this section shall send a
copy of those comments to both the requestor and the governmental body. If the written
comments disclose or contain the substance of the information at issue, the copy of the
comments sent to the requestor must be a redacted copy.
63.15. Additional Information

(a)
The attorney general may determine whether a governmental bodys submission of

information under 63.14(a) of this subchapter is sufficient to render a decision.

264
Appendix 23
(b)
If the attorney general determines that information in addition to that required by 63.14(a)
of this subchapter is necessary to render a decision, the attorney general shall give written
notice of that fact to the governmental body and the requestor.
(c)
A governmental body notified under subsection (b) of this section shall submit the
necessary additional information to the attorney general not later than the 7th calendar day
after the date the notice is received.
63.16. Rendition of Attorney General Decision; Issuance of Written Decision

(a)
The attorney general shall promptly render a decision requested under this subchapter, not
later than the 45th business day after the date of receiving the request for review.
(b)
The attorney general shall issue a written decision and shall provide a copy of the decision
to the requestor, the governmental body, and any interested person who submitted
necessary information or a brief to the attorney general about the matter.
Subchapter C.
Electronic Submission of Request for Attorney General

Open Records Decision
63.21. Definitions and Purpose

(a)
The following words and terms, when used in this subchapter, shall have the following
meanings:
(1) Governmental body means a governmental body as defined in Texas Government Code
552.003(1).
(2) Request for decision means a request for an attorney general open records decision made
by a governmental body pursuant to Texas Government Code 552.301 and 552.309.
(3) Requestor means a requestor as defined in Texas Government Code 552.003(6).
(4) Interested Third Party means any third party who wishes to submits comments,
documents, or other materials for consideration in the attorney generals open records
decision process under Texas Government Code 552.304 or 552.305.
(5) Attorney Generals Designated Electronic Filing System means the online, electronic
filing system designated by the attorney general as the system for submitting documents
and other materials to the attorney general under Texas Government Code 552.309.
(b)
This subchapter governs the procedures by which the attorney general may charge and
collect a nonrefundable administrative convenience fee for the electronic submission of
documents and other materials to the attorney general under Texas Government Code
552.309.

265
Appendix 23
63.22. Electronic Submission of Request for Attorney General Decision

(a)
A governmental body that requests a decision from the attorney general under Texas
Government Code 552.301 about whether requested public information is excepted from
public disclosure may submit that request for decision to the attorney general through the
attorney generals designated electronic filing system.
(b)
The governmental bodys request for decision must comply with the requirements of Texas
Government Code 552.301.
(c)
The deadlines in Texas Government Code 552.301 and 552.303 are met if the
governmental body timely submits the required documents and other materials through the
attorney generals designated electronic filing system within the time prescribed.
(d)
The governmental body must comply with the requirements of Texas Government Code
552.301(d) and (e-1), and 552.305 regardless of whether the request for attorney
general decision is submitted electronically or through another permissible method of
submission.
(e)
To use the attorney generals designated electronic filing system, the governmental body
must agree to and comply with the terms and conditions of use as outlined on the attorney
generals designated electronic filing system website.
(f)
The confidentiality of Texas Government Code 552.3035 applies to information

submitted under Texas Government Code 552.301(e)(1)(D) through the attorney
generals designated electronic filing system.
63.23. Electronic Submission of Documents or other Materials by Interested Third Party

(a)
An interested third party may submit, through the attorney generals designated electronic
filing system, the reasons why the requested public information should be withheld or
released along with any necessary supporting documentation for consideration in the
attorney generals open records decision process.
(b)
The deadline in Texas Government Code 552.305(d)(2)(B) is met if the interested third
party timely submits the reasons why the requested public information should be withheld
or released along with any necessary supporting documentation through the attorney
generals designated electronic filing system within the time prescribed.
(c)
The interested third party must comply with the requirements of Texas Government Code
552.305(e) regardless of whether the interested third party submits materials
electronically or through another permissible method of submission.
(d)
To use the attorney generals designated electronic filing system, the interested third party
must agree to and comply with the terms and conditions of use as outlined on the attorney
generals designated electronic filing system website.

266
Appendix 23
63.24. Administrative Convenience Fee

(a)
Each request for decision submitted through the attorney generals designated electronic
filing system will be assessed a nonrefundable administrative convenience fee, to be set by
the attorney general, that reasonably relates to the cost of the resources expended to
develop and administer the attorney generals designated electronic filing system.
(b)
Subsequent electronic submissions by the same governmental body related to the same
request for decision will not be assessed an additional nonrefundable administrative
convenience fee by the attorney general.
(c)
An interested third party that submits arguments or documents through the attorney
generals designated electronic filing system will be assessed a nonrefundable
administrative convenience fee, to be set by the attorney general, that reasonably relates to
the cost of the resources expended to develop and administer the attorney generals
designated electronic filing system.
(d)
Subsequent electronic submissions by the same interested third party related to the same
request for decision will not be assessed an additional nonrefundable administrative
convenience fee by the attorney general.
(e)
The administrative fee described in subsection (a) of this section shall be collected
electronically by the state electronic internet portal.
TEXAS ADMINISTRATIVE CODE, TITLE 1, CHAPTER 70

Chapter 70.
Cost of Copies of Public Information
70.1 Purpose
(a) The Office of the Attorney General (the Attorney General) must:
(1)
Adopt rules for use by each governmental body in determining charges under Texas
Government Code, Chapter 552 (Public Information) Subchapter F (Charges for Providing
Copies of Public Information);
(2)
Prescribe the methods for computing the charges for copies of public information in paper,
electronic, and other kinds of media; and
(3)
Establish costs for various components of charges for public information that shall be used
by each governmental body in providing copies of public information.
(b) Governmental bodies must use the charges established by these rules, unless:
(1)
Other law provides for charges for specific kinds of public information;

267
Appendix 23
(2)
They are a governmental body other than a state agency, and their charges are within a 25
percent variance above the charges established by the Attorney General;
(3)
They request and receive an exemption because their actual costs are higher; or
(4)
In accordance with Chapter 552 of the Texas Government Code (also known as the Public
Information Act), the governmental body may grant a waiver or reduction for charges for
providing copies of public information pursuant to 552.267 of the Texas Government
Code.
(A) A governmental body shall furnish a copy of public information without charge or
at a reduced charge if the governmental body determines that waiver or reduction of
the fee is in the public interest because furnishing the information primarily benefits
the general public; or
(B) If the cost to the governmental body of processing the collection of a charge for a
copy of public information will exceed the amount of the charge, the governmental
body may waive the charge.
70.2 Definitions
The following words and terms, when used in these sections, shall have the following meanings,
unless the context clearly indicates otherwise.
(1)
Actual costThe sum of all direct costs plus a proportional share of overhead or indirect
costs. Actual cost should be determined in accordance with generally accepted
methodologies.
(2)
Client/Server SystemA combination of two or more computers that serve a particular

application through sharing processing, data storage, and end-user interface presentation.
PCs located in a LAN environment containing file servers fall into this category as do
applications running in an X-window environment where the server is a UNIX based
system.
(3)
Attorney GeneralThe Office of the Attorney General of Texas.
(4)
Governmental BodyAn entity as defined by 552.003 of the Texas Government Code.
(5)
Mainframe ComputerA computer located in a controlled environment and serving large

applications and/or large numbers of users. These machines usually serve an entire
organization or some group of organizations. These machines usually require an operating
staff. IBM and UNISYS mainframes, and large Digital VAX 9000 and VAX Clusters fall
into this category.

268
Appendix 23
(6)
Midsize Computer--A computer smaller than a Mainframe Computer that is not necessarily
located in a controlled environment. It usually serves a smaller organization or a sub-unit
of an organization. IBM AS/400 and Digital VAX/VMS multi-user single-processor
systems fall into this category.
(7)
Nonstandard copyUnder 70.1 through 70.11 of this title, a copy of public information
that is made available to a requestor in any format other than a standard paper copy.
Microfiche, microfilm, diskettes, magnetic tapes, CD-ROM are examples of nonstandard
copies. Paper copies larger than 8 1/2 by 14 inches (legal size) are also considered
nonstandard copies.
(8)
PCAn IBM compatible PC, Macintosh or Power PC based computer system operated
without a connection to a network.
(9)
Standard paper copyUnder 70.1 through 70.11 of this title, a copy of public
information that is a printed impression on one side of a piece of paper that measures up
to 8 1/2 by 14 inches. Each side of a piece of paper on which information is recorded is
counted as a single copy. A piece of paper that has information recorded on both sides is
counted as two copies.
(10) Archival boxA carton box measuring approximately 12.5 width x 15.5 length x 10
height, or able to contain approximately 1.5 cubic feet in volume.
70.3 Charges for Providing Copies of Public Information
(a) The charges in this section to recover costs associated with providing copies of public
information are based on estimated average costs to governmental bodies across the state. When
actual costs are 25% higher than those used in these rules, governmental bodies other than
agencies of the state, may request an exemption in accordance with 70.4 of this title (relating
to Requesting an Exemption).
(b) Copy charge.
(1)
Standard paper copy. The charge for standard paper copies reproduced by means of an
office machine copier or a computer printer is $.10 per page or part of a page. Each side
that has recorded information is considered a page.
(2)
Nonstandard copy. The charges in this subsection are to cover the materials onto which
information is copied and do not reflect any additional charges, including labor, that may
be associated with a particular request. The charges for nonstandard copies are:
(A) Diskette$1.00;
(B) Magnetic tapeactual cost
(C) Data cartridgeactual cost;

269
Appendix 23
(D) Tape cartridgeactual cost;

(E) Rewritable CD (CD-RW)$1.00;
(F)
Non-rewritable CD (CD-R)$1.00;
(G) Digital video disc (DVD)$3.00;

(H) JAZ driveactual cost;
(I)
Other electronic mediaactual cost;
(J)
VHS video cassette$2.50;
(K) Audio cassette$1.00;

(L) Oversize paper copy (e.g.: 11 inches by 17 inches, greenbar, bluebar, not including
maps and photographs using specialty papersee also 70.9 of this title)$.50;
(M) Specialty paper (e.g.: Mylar, blueprint, blueline, map, photographicactual cost.
(c) Labor charge for programming. If a particular request requires the services of a programmer in
order to execute an existing program or to create a new program so that requested information
may be accessed and copied, the governmental body may charge for the programmers time.
(1)
The hourly charge for a programmer is $28.50 an hour. Only programming services shall
be charged at this hourly rate.
(2)
Governmental bodies that do not have in-house programming capabilities shall comply
with requests in accordance with 552.231 of the Texas Government Code.
(3)
If the charge for providing a copy of public information includes costs of labor, a
governmental body shall comply with the requirements of 552.261(b) of the Texas
Government Code.
(d) Labor charge for locating, compiling, manipulating data, and reproducing public information.
(1)
The charge for labor costs incurred in processing a request for public information is $15
an hour. The labor charge includes the actual time to locate, compile, manipulate data, and
reproduce the requested information.
(2)
A labor charge shall not be billed in connection with complying with requests that are for
50 or fewer pages of paper records, unless the documents to be copied are located in:
(A) Two or more separate buildings that are not physically connected with each other; or

270
Appendix 23
(B) A remote storage facility.

(3)
A labor charge shall not be recovered for any time spent by an attorney, legal assistant, or
any other person who reviews the requested information:
(A) To determine whether the governmental body will raise any exceptions to disclosure
of the requested information under the Texas Government Code, Subchapter C,
Chapter 552; or
(B) To research or prepare a request for a ruling by the attorney generals office pursuant
to 552.301 of the Texas Government Code.
(4)
When confidential information pursuant to a mandatory exception of the Act is mixed with
public information in the same page, a labor charge may be recovered for time spent to
redact, blackout, or otherwise obscure confidential information in order to release the
public information. A labor charge shall not be made for redacting confidential
information for requests of 50 or fewer pages, unless the request also qualifies for a labor
charge pursuant to Texas Government Code, 552.261(a)(1) or (2).
(5)
If the charge for providing a copy of public information includes costs of labor, a
governmental body shall comply with the requirements of Texas Government Code,
Chapter 552, 552.261(b).
(6)
For purposes of paragraph (2)(A) of this subsection, two buildings connected by a covered
or open sidewalk, an elevated or underground passageway, or a similar facility, are not
considered to be separate buildings.
(e) Overhead charge.

(1)
Whenever any labor charge is applicable to a request, a governmental body may include
in the charges direct and indirect costs, in addition to the specific labor charge. This
overhead charge would cover such costs as depreciation of capital assets, rent, maintenance
and repair, utilities, and administrative overhead. If a governmental body chooses to
recover such costs, a charge shall be made in accordance with the methodology described
in paragraph (3) of this subsection. Although an exact calculation of costs will vary, the
use of a standard charge will avoid complication in calculating such costs and will provide
uniformity for charges made statewide.
(2)
An overhead charge shall not be made for requests for copies of 50 or fewer pages of
standard paper records unless the request also qualifies for a labor charge pursuant to Texas
Government Code, 552.261(a)(1) or (2).
(3)
The overhead charge shall be computed at 20% of the charge made to cover any labor costs
associated with a particular request.

271
Appendix 23
Example: if one hour of labor is used for a particular request, the formula would be as
follows:
Labor charge for locating, compiling, and reproducing, $15.00 x .20 = $3.00; or
Programming labor charge, $28.50 x .20 = $5.70.
If a request requires one hour of labor charge for locating, compiling, and reproducing
information ($15.00 per hour); and one hour of programming labor charge ($28.50 per
hour), the combined overhead would be: $15.00 + $28.50 = $43.50 x .20 = $8.70.
(f) Microfiche and microfilm charge.
(1)
If a governmental body already has information that exists on microfiche or microfilm and
has copies available for sale or distribution, the charge for a copy must not exceed the cost
of its reproduction. If no copies of the requested microfiche or microfilm are available and
the information on the microfiche or microfilm can be released in its entirety, the
governmental body should make a copy of the microfiche or microfilm. The charge for a
copy shall not exceed the cost of its reproduction. The Texas State Library and Archives
Commission has the capacity to reproduce microfiche and microfilm for governmental
bodies. Governmental bodies that do not have in-house capability to reproduce microfiche
or microfilm are encouraged to contact the Texas State Library before having the
reproduction made commercially.
(2)
If only a master copy of information in microfilm is maintained, the charge is $.10 per page
for standard size paper copies, plus any applicable labor and overhead charge for more than
50 copies.
(g) Remote document retrieval charge.

(1)
Due to limited on-site capacity of storage documents, it is frequently necessary to store

information that is not in current use in remote storage locations. Every effort should be
made by governmental bodies to store current records on-site. State agencies are
encouraged to store inactive or non-current records with the Texas State Library and
Archives Commission. To the extent that the retrieval of documents results in a charge to
comply with a request, it is permissible to recover costs of such services for requests that
qualify for labor charges under current law.
(2)
If a governmental body has a contract with a commercial records storage company,

whereby the private company charges a fee to locate, retrieve, deliver, and return to storage
the needed record(s), no additional labor charge shall be factored in for time spent locating
documents at the storage location by the private companys personnel. If after delivery to
the governmental body, the boxes must still be searched for records that are responsive to
the request, a labor charge is allowed according to subsection (d)(1) of this section.
(h) Computer resource charge.

272
Appendix 23
(1)
The computer resource charge is a utilization charge for computers based on the amortized
cost of acquisition, lease, operation, and maintenance of computer resources, which might
include, but is not limited to, some or all of the following: central processing units (CPUs),
servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral
devices, communications devices, software, and system utilities.
(2)
These computer resource charges are not intended to substitute for cost recovery
methodologies or charges made for purposes other than responding to public information
requests.
(3)
The charges in this subsection are averages based on a survey of governmental bodies with
a broad range of computer capabilities. Each governmental body using this cost recovery
charge shall determine which category(ies) of computer system(s) used to fulfill the public
information request most closely fits its existing system(s), and set its charge accordingly.
Type of SystemRate: mainframe$10 per CPU minute; Midsize$1.50 per CPU
minute; Client/Server$2.20 per clock hour; PC or LAN$1.00 per clock hour.
(4)
The charge made to recover the computer utilization cost is the actual time the computer
takes to execute a particular program times the applicable rate. The CPU charge is not
meant to apply to programming or printing time; rather it is solely to recover costs
associated with the actual time required by the computer to execute a program. This time,
called CPU time, can be read directly from the CPU clock, and most frequently will be a
matter of seconds. If programming is required to comply with a particular request, the
appropriate charge that may be recovered for programming time is set forth in subsection
(d) of this section. No charge should be made for computer print-out time. Example: If
a mainframe computer is used, and the processing time is 20 seconds, the charges would
be as follows: $10 / 3 = $3.33; or $10 / 60 x 20 = $3.33.
(5)
A governmental body that does not have in-house computer capabilities shall comply with
requests in accordance with the 552.231 of the Texas Government Code.
(i) Miscellaneous supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and
other supplies used to produce the requested information, may be added to the total charge for
public information.
(j) Postal and shipping charges. Governmental bodies may add any related postal or shipping
expenses which are necessary to transmit the reproduced information to the requesting party.
(k) Sales tax. Pursuant to Office of the Comptroller of Public Accounts rules sales tax shall not be
added on charges for public information (34 TAC, Part 1, Chapter 3, Subchapter O, 3.341 and
3.342).
(l) Miscellaneous charges: A governmental body that accepts payment by credit card for copies of
public information and that is charged a transaction fee by the credit card company may
recover that fee.

273
Appendix 23
(m)These charges are subject to periodic reevaluation and update.

70.4 Requesting an Exemption
(a) Pursuant to 552.262(c) of the Public Information Act, a governmental body may request that
it be exempt from part or all of these rules.
(b) State agencies must request an exemption if their charges to recover costs are higher than those
established by these rules.
(c) Governmental bodies, other than agencies of the state, must request an exemption before seeking
to recover costs that are more than 25% higher than the charges established by these rules.
(d) an exemption request must be made in writing, and must contain the following elements:
(1)
A statement identifying the subsection(s) of these rules for which an exemption is sought;
(2)
The reason(s) the exemption is requested;
(3)
A copy of the proposed charges;
(4)
The methodology and figures used to calculate/compute the proposed charges;
(5)
Any supporting documentation, such as invoices, contracts, etc.; and
(6)
The name, title, work address, and phone number of a contact person at the governmental
body.
(e) The contact person shall provide sufficient information and answer in writing any questions
necessary to process the request for exemption.
(f) If there is good cause to grant the exemption, because the request is duly documented,
reasonable, and in accordance with generally accepted accounting principles, the exemption shall
be granted. The name of the governmental body shall be added to a list to be published annually
in the Texas Register.
(g) If the request is not duly documented and/or the charges are beyond cost recovery, the request
for exemption shall be denied. The letter of denial shall:
(1)
Explain the reason(s) the exemption cannot be granted; and
(2)
Whenever possible, propose alternative charges.
(h) All determinations to grant or deny a request for exemption shall be completed promptly, but
shall not exceed 90 days from receipt of the request by the Attorney General.

274
Appendix 23
70.5 Access to Information Where Copies Are Not Requested

(a) Access to information in standard paper form. A governmental body shall not charge for making
available for inspection information maintained in standard paper form. Charges are permitted
only where the governmental body is asked to provide, for inspection, information that contains
mandatory confidential information and public information. When such is the case, the
governmental body may charge to make a copy of the page from which information must be
edited. No other charges are allowed except as follows:
(1)
The governmental body has 16 or more employees and the information requested takes
more than five hours to prepare the public information for inspection; and
(A) Is older than five years; or
(B) Completely fills, or when assembled will completely fill, six or more archival boxes.
(2)
The governmental body has 15 or fewer full-time employees and the information requested
takes more than two hours to prepare the public information for inspection; and
(A) Is older than three years; or
(B) Completely fills, or when assembled will completely fill, three or more archival
boxes.
(3)
A governmental body may charge pursuant to paragraphs (1)(A) and (2)(A) of this
subsection only for the production of those documents that qualify under those paragraphs.
(b) Access to information in other than standard form. In response to requests for access, for
purposes of inspection only, to information that is maintained in other than standard form, a
governmental body may not charge the requesting party the cost of preparing and making
available such information, unless complying with the request will require programming or
manipulation of data.
70.6 Format for Copies of Public Information
(a) If a requesting party asks that information be provided on computer-compatible media of a
particular kind, and the requested information is electronically stored and the governmental body
has the capability of providing it in that format and it is able to provide it at no greater expense
or time, the governmental body shall provide the information in the requested format.
(b) The extent to which a requestor can be accommodated will depend largely on the technological
capability of the governmental body to which the request is made.
(c) A governmental body is not required to purchase any hardware, software or programming
capabilities that it does not already possess to accommodate a particular kind of request.

275
Appendix 23
(d) Provision of a copy of public information in the requested medium shall not violate the terms of
any copyright agreement between the governmental body and a third party.
(e) if the governmental body does not have the required technological capabilities to comply with
the request in the format preferred by the requestor, the governmental body shall proceed in
accordance with 552.228(c) of the Public Information Act.
(f) If a governmental body receives a request requiring programming or manipulation of data, the
governmental body should proceed in accordance with 552.231 of the Public Information Act.
Manipulation of data under 552.231 applies only to information stored in electronic format.
70.7 Estimates and Waivers of Public Information Charges
(a) A governmental body is required to provide a requestor with an itemized statement of estimated
charges if charges for copies of public information will exceed $40, or if a charge in accordance
with 70.5 of this title (relating to Access to Information Where Copies Are Not Requested) will
exceed $40 for making public information available for inspection. The itemized statement of
estimated charges is to be provided before copies are made to enable requestors to make the
choices allowed by the Act. A governmental body that fails to provide the required statement
may not collect more than $40. The itemized statement must be provided free of charge and
shall contain the following information:
(1)
The itemized estimated charges, including any allowable charges for labor, overhead,
copies, etc.;
(2)
Whether a less costly or no-cost way of viewing the information is available;
(3)
A statement that the requestor must respond in writing by mail, in person, by facsimile if
the governmental body is capable of receiving such transmissions, or by electronic mail,
if the governmental body has an electronic mail address;
(4)
A statement that the request will be considered to have been automatically withdrawn by
the requestor if a written response from the requestor is not received within ten business
days after the date the statement was sent, in which the requestor states that the requestor:
(A) Will accept the estimated charges;
(B) Is modifying the request in response to the itemized statement; or
(C) Has sent to the Attorney General a complaint alleging that the requestor has been
overcharged for being provided with a copy of the public information.
(b) If after starting the work, but before making the copies available, the governmental body
determines that the initially accepted estimated statement will be exceeded by 20% or more, an
updated statement must be sent. If the requestor does not respond to the updated statement, the
request is considered to have been withdrawn by the requestor.

276
Appendix 23
(c) If the actual charges exceed $40, the charges may not exceed:
(1)
The amount estimated on the updated statement; or
(2)
An amount that exceeds by more than 20% the amount in the initial statement, if an
updated statement was not sent.
(d) A governmental body that provides a requestor with the statement mentioned in subsection (a)
of this section, may require a deposit or bond as follows:
(1)
The governmental body has 16 or more full-time employees and the estimated charges are
$100 or more; or
(2)
The governmental body has 15 or fewer full-time employees and the estimated charges are
$50 or more.
(e) If a request for the inspection of paper records will qualify for a deposit or a bond as detailed in
subsection (d) of this section, a governmental body may request:
(1)
A bond for the entire estimated amount; or
(2)
A deposit not to exceed 50 percent of the entire estimated amount.
(f) A governmental body may require payment of overdue and unpaid balances before preparing a
copy in response to a new request if:
(1)
The governmental body provided, and the requestor accepted, the required itemized
statements for previous requests that remain unpaid; and
(2)
The aggregated unpaid amount exceeds $100.
(g) A governmental body may not seek payment of said unpaid amounts through any other means.
(h) A governmental body that cannot produce the public information for inspection and/or
duplication within 10 business days after the date the written response from the requestor has
been received, shall certify to that fact in writing, and set a date and hour within a reasonable
time when the information will be available.
70.8 Processing Complaints of Overcharges
(a) Pursuant to 552.269(a) of the Texas Government Code, requestors who believe they have been
overcharged for a copy of public information may complain to the Attorney General.
(b) The complaint must be in writing, and must:
(1)
Set forth the reason(s) the person believes the charges are excessive;

277
Appendix 23
(2)
Provide a copy of the original request and a copy of any correspondence from the
governmental body stating the proposed charges; and
(3)
Be received by the Attorney General within 10 business days after the person knows of the
occurrence of the alleged overcharge.
(4)
Failure to provide the information listed within the stated timeframe will result in the
complaint being dismissed.
(c) The Attorney General shall address written questions to the governmental body, regarding the
methodology and figures used in the calculation of the charges which are the subject of the
complaint.
(d) The governmental body shall respond in writing to the questions within 10 business days from
receipt of the questions.
(e) The Attorney General may use tests, consultations with records managers and technical
personnel at the Attorney General and other agencies, and any other reasonable resources to
determine appropriate charges.
(f) If the Attorney General determines that the governmental body overcharged for requested public
information, the governmental body shall adjust its charges in accordance with the determination,
and shall refund the difference between what was charged and what was determined to be
appropriate charges.
(g) The Attorney General shall send a copy of the determination to the complainant and to the
governmental body.
(h) Pursuant to 552.269(b) of the Texas Government Code, a requestor who overpays because a
governmental body refuses or fails to follow the charges established by the Attorney General,
is entitled to recover three times the amount of the overcharge if the governmental body did not
act in good faith in computing the charges.
70.9 Examples of Charges for Copies of Public Information
The following tables present a few examples of the calculations of charges for information:
(1) TABLE 1 (Fewer than 50 pages of paper records): $.10 per copy x number of copies
(standard-size paper copies); + Labor charge (if applicable); + Overhead charge (if applicable);
+ Document retrieval charge (if applicable); + Postage and shipping (if applicable) = $ TOTAL
CHARGE.
(2) TABLE 2 (More than 50 pages of paper records or nonstandard copies): $.10 per copy x
number of copies (standard-size paper copies), or cost of nonstandard copy (e.g., diskette,
oversized paper, etc.); + Labor charge (if applicable); + Overhead charge (if applicable);

278
Appendix 23
+ Document retrieval charge (if applicable); + Actual cost of miscellaneous supplies (if
applicable); + Postage and shipping (if applicable) = $ TOTAL CHARGE.
(3) TABLE 3 (Information that Requires Programming or Manipulation of Data): Cost of copy
(standard or nonstandard, whichever applies); + Labor charge; + Overhead charge; + Computer
resource charge; + Programming time (if applicable); + Document retrieval charge (if
applicable); + Actual cost of miscellaneous supplies (if applicable); + Postage and shipping (if
applicable) = $ TOTAL CHARGE.
(4) TABLE 4 (Maps): Cost of paper (Cost of Roll/Avg. # of Maps); + Cost of Toner (Black or
Color, # of Maps per Toner Cartridge); + Labor charge (if applicable); + Overhead charge
(if applicable) + Plotter/Computer resource Charge; + Actual cost of miscellaneous supplies
(if applicable); + Postage and shipping (if applicable) = $ TOTAL CHARGE.
(5) TABLE 5 (Photographs): Cost of Paper (Cost of Sheet of Photographic Paper/Avg. # of
Photographs per Sheet); + Developing/Fixing Chemicals (if applicable); + Labor charge
(if applicable); + Overhead charge (if applicable); + Postage and shipping (if applicable) =
$ TOTAL CHARGE.
70.10 The Attorney General Charge Schedule
The following is a summary of the charges for copies of public information that have been adopted
by the Attorney General.
(1)
Standard paper copy$.10 per page.
(2)
Nonstandard-size copy:
(A) Diskette: $1.00;
(B) Magnetic tape: actual cost;
(C) Data cartridge: actual cost;
(D) Tape cartridge: actual cost;
(E) Rewritable CD (CD-RW)$1.00;
(F)
Non-rewritable CD (CD-R)$1.00;
(G) Digital video disc (DVD)$3.00;

(H) JAZ driveactual cost;
(I)
Other electronic media--actual cost;

279
Appendix 23
(J)
VHS video cassette$2.50;
(K) Audio cassette$1.00;

(L) Oversize paper copy (e.g.: 11 inches by 17 inches, greenbar, bluebar, not including
maps and photographs using specialty paper)$.50;
(M) Specialty paper (e.g.: Mylar, blueprint, blueline, map, photographic)actual cost.
(3)
Labor charge:
(A) For programming$28.50 per hour;
(B) For locating, compiling, and reproducing$15 per hour.
(4)
Overhead charge20% of labor charge.
(5)
Microfiche or microfilm charge:

(A) Paper copy$.10 per page;
(B) Fiche or film copyActual cost.
(6)
Remote document retrieval chargeActual cost.
(7)
Computer resource charge:

(A) mainframe$10 per CPU minute;
(B) Midsize$1.50 per CPU minute;
(C) Client/Server system$2.20 per clock hour;
(D) PC or LAN$1.00 per clock hour.
(8)
Miscellaneous suppliesActual cost.
(9)
Postage and shipping chargeActual cost.
(10) PhotographsActual cost as calculated in accordance with 70.9(5) of this title.

(11) MapsActual cost as calculated in accordance with 70.9(4) of this title.
(12) Other costsActual cost.

280
Appendix 23
(13) Outsourced/Contracted ServicesActual cost for the copy. May not include development
costs.
(14) No Sales TaxNo Sales Tax shall be applied to copies of public information.
70.11 Informing the Public of Basic Rights and Responsibilities Under the Public
Information Act
(a)
Pursuant to Texas Government Code, Chapter 552, Subchapter D, 552.205, an officer for
public information shall prominently display a sign in the form prescribed by the Attorney
General.
(b)
The sign shall contain basic information about the rights of requestors and responsibilities
of governmental bodies that are subject to Chapter 552, as well as the procedures for
inspecting or obtaining a copy of public information under said chapter.
(c)
The sign shall have the minimum following characteristics:
(d)
(1)
Be printed on plain paper.
(2)
Be no less than 8 1/2 inches by 14 inches in total size, exclusive of framing.
(3)
The sign may be laminated to prevent alterations.
The sign will contain the following wording:

(1)
The Public Information Act. Texas Government Code, Chapter 552, gives you the
right to access government records; and an officer for public information and the
officers agent may not ask why you want them. All government information is
presumed to be available to the public. Certain exceptions may apply to the
disclosure of the information. Governmental bodies shall promptly release requested
information that is not confidential by law, either constitutional, statutory, or by
judicial decision, or information for which an exception to disclosure has not been
sought.
(2)
Rights of Requestors. You have the right to:

(A)
Prompt access to information that is not confidential or otherwise protected;
(B)
Receive treatment equal to all other requestors, including accommodation in

accordance with the Americans with Disabilities Act (ADA) requirements;
(C)
Receive certain kinds of information without exceptions, like the voting

record of public officials, and other information;

281
Appendix 23
(3)
(D)
Receive a written itemized statement of estimated charges, when charges will

exceed $40, in advance of work being started and opportunity to modify the
request in response to the itemized statement;
(E)
Choose whether to inspect the requested information (most often at no

charge), receive copies of the information, or both;
(F)
A waiver or reduction of charges if the governmental body determines that

access to the information primarily benefits the general public;
(G)
Receive a copy of the communication from the governmental body asking the
Attorney General for a ruling on whether the information can be withheld
under one of the accepted exceptions, or if the communication discloses the
requested information, a redacted copy;
(H)
Lodge a written complaint about overcharges for public information with the
Attorney General. Complaints of other possible violations may be filed with
the county or district attorney of the county where the governmental body,
other than a state agency, is located. If the complaint is against the county or
district attorney, the complaint must be filed with the Attorney General.
Responsibilities of Governmental Bodies. All governmental bodies responding to

information requests have the responsibility to:
(A)
Establish reasonable procedures for inspecting or copying public information

and inform requestors of these procedures;
(B)
Treat all requestors uniformly and shall give to the requestor all reasonable
comfort and facility, including accommodation in accordance with ADA
requirement;
(C)
Be informed about open records laws and educate employees on the

requirements of those laws;
(D)
Inform requestors of the estimated charges greater than $40 and any changes
in the estimates above 20 percent of the original estimate, and confirm that
the requestor accepts the charges, has amended the request, or has sent a
complaint of overcharges to the Attorney General, in writing before finalizing
the request;
(E)
Inform the requestor if the information cannot be provided promptly and set
a date and time to provide it within a reasonable time;
(F)
Request a ruling from the Attorney General regarding any information the
governmental body wishes to withhold, and send a copy of the request for
ruling, or a redacted copy, to the requestor;

282
Appendix 23
(4)
(5)
(G)
Segregate public information from information that may be withheld and

provide that public information promptly;
(H)
Make a good faith attempt to inform third parties when their proprietary
information is being requested from the governmental body;
(I)
Respond in writing to all written communications from the Attorney General

regarding complaints about the charges for the information and other alleged
violations of the Act.
Procedures to Obtain Information

(A)
Submit a request by mail, fax, email or in person, according to a

governmental bodys reasonable procedures.
(B)
Include enough description and detail about the information requested to

enable the governmental body to accurately identify and locate the
information requested.
(C)
Cooperate with the governmental bodys reasonable efforts to clarify the type
or amount of information requested.
Information to be released.
(A)
You may review it promptly, and if it cannot be produced within 10 business

days the public information officer will notify you in writing of the
reasonable date and time when it will be available;
(B)
Keep all appointments to inspect records and to pick up copies. Failure to

keep appointments may result in losing the opportunity to inspect the
information at the time requested;
(C)
Cost of Records.
(i)
You must respond to any written estimate of charges within 10

business days of the date the governmental body sent it or the request
is considered automatically withdrawn;
(ii)
If estimated costs exceed $100.00 (or $50.00 if a governmental body

has fewer than 16 full time employees) the governmental body may
require a bond, prepayment or deposit;
(iii)
You may ask the governmental body to determine whether providing

the information primarily benefits the general public, resulting in a
waiver or reduction of charges;

283
Appendix 23
(iv)
(6)
Information that may be withheld due to an exception.

(A)
(7)
Make timely payment for all mutually agreed charges. A

governmental body can demand payment of overdue balances
exceeding $100.00, or obtain a security deposit, before processing
additional requests from you.
By the 10th business day after a governmental body receives your written
request, a governmental body must:
(i)
Request an Attorney General Opinion and state which exception

apply;
(ii)
Notify the requestor of the referral to the Attorney General; and
(iii)
Notify third parties if the request involves their proprietary

information;
(B)
Failure to request an Attorney General opinion and to notify the requestor

within 10 business days will result in a presumption that the information is
open unless there is a compelling reason to withhold it.
(C)
Requestors may send a letter to the Attorney General arguing for release, and
may review arguments made by the governmental body. If the arguments
disclose the requested information, the requestor may obtain a redacted copy.
(D)
The Attorney General must issue a decision no later than the 45th business
day after the Attorney General received the request for a decision. The
Attorney General may request an additional 10 business days extension.
(E)
Governmental bodies may not ask the Attorney General to reconsider an

opinion.
Additional Information on Sign.

(A)
The sign must contain information of the governmental bodys officer for
public information, or the officers agent, as well as the mailing address,
phone and fax numbers, and email address, if any, where requestors may send
a request for information to the officer or the officers agent. The sign must
also contain the physical address at which requestors may request information
in person.
(B)
The sign must contain information of the local county attorney or district
attorney where requestors may submit a complaint of alleged violations of the
Act, as well as the contact information for the Attorney General.

284
Appendix 23
(C)
(e)
The sign must also contain contact information of the person or persons with
whom a requestor may make special arrangements for accommodation
pursuant to the American with Disabilities Act.
A governmental body may comply with Texas Government Code, 552.205 and this rule
by posting the sign provided by the Attorney General.
70.12. Allowable Charges Under Section 552.275 of the Texas Government Code
(a)
A governmental body shall utilize the methods established in 1 TAC 70.3(c) - (e) when
calculating allowable charges under Section 552.275 of the Texas Government Code.
(b)
When calculating the amount of time spent complying with an individuals public
information request(s) pursuant to Section 552.275 of the Texas Government Code, a
governmental body may not include time spent on:
(1)
Determining the meaning and/or scope of the request(s);
(2)
Requesting a clarification from the requestor;
(3)
Comparing records gathered from different sources;
(4)
Determining which exceptions to disclosure under Chapter 552 of the Texas

Government Code, if any, may apply to information that is responsive to the
request(s);
(5)
Preparing the information and/or correspondence required under Sections 552.301,

552.303, and 552.305 of the Government Code;
(6)
Reordering, reorganizing, or in any other way bringing information into compliance

with well established and generally accepted information management practices; or
(7)
Providing instruction to, or learning by, employees or agents of the governmental

body of new practices, rules, and/or procedures, including the management of
electronic records.

285
Appendix 23
PART FIVE:
TABLE OF CASES
A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995). . . . . . . . . . . . . . . 2, 21, 94, 97, 98
A. H. Belo Corp. v. S. Methodist Univ., 734 S.W.2d 720
(Tex. App.Dallas 1987, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Abbott v. City of Corpus Christi, 109 S.W.3d 113
(Tex. App.Austin 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 45, 102
Abbott v. Tex. Dept of Mental Health & Mental Retardation, 212 S.W.3d 648
(Tex. App.Austin 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Abbott v. Tex. State Bd. of Pharmacy, 391 S.W.3d 253
(Tex. App.Austin 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 71
Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152
(Tex. App.Austin 2001, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Ashpole v. Millard, 778 S.W.2d 169 (Tex. App.Houston [1st Dist.] 1989, no writ).. . . . . . . . 13
Austin v. City of San Antonio, 630 S.W.2d 391
(Tex. App.San Antonio 1982, writ refd n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 115
Baytown Sun v. City of Mont Belvieu, 145 S.W.3d 268
(Tex. App.Houston [14th Dist.] 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Benavides v. Lee, 665 S.W.2d 151 (Tex. App.San Antonio 1983, no writ). . . . . . . . . . . . 13, 14
Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766
(Tex. App.Austin 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114, 118
Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353
(Tex. App.Waco 1998, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 45, 61
City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.Austin 2002, no pet.).. . . . . . . . . . 101
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000). . . . . . 63, 65, 66, 115, 116
City of Garland v. Dallas Morning News, 969 S.W.2d 548
(Tex. App.Dallas 1998), affd, 22 S.W.3d 551 (Tex. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 115
City of Lubbock v. Cornyn, 993 S.W.2d 461 (Tex. App.Austin 1999, no pet.).. . . . . . . . . . . 101

286
Appendix 23
City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556

(Tex. App.San Antonio 2000, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946
(Tex. App.Austin 1993, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946
(Tex. App.Austin 1993, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Conely v. Peck, 929 S.W.2d 630 (Tex. App.Austin 1996, no writ).. . . . . . . . . . . . . . . . . . 23, 36
Cornyn v. City of Garland, 994 S.W.2d 258 (Tex. App.Austin 1999, no pet.). . . . . . . . . . 29, 83
Ctr. for Econ. Justice v. Am. Ins. Assn, 39 S.W.3d 337
(Tex. App.Austin 2001, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Curry v. Walker, 873 S.W.2d 379 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469
(Tex. App.Dallas 1999, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Dallas Morning News v. City of Arlington, No. 03-10-00192-CV, 2011 WL 182886
(Tex. App.Austin Jan. 21, 2011, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Dominguez v. Gilbert, 48 S.W.3d 789 (Tex. App.Austin 2001, no pet.).. . . . . . . . . . . 22, 36, 70
Envoy Med. Sys. v. State, 108 S.W.3d 333 (Tex. App.Austin 2003, no pet.). . . . . . . . . . 71, 113
Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 96
Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678
(Tex. App.Eastland 2000, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 27, 28
Ford v. City of Huntsville, 242 F.3d 235 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Greater Houston Pship v. Abbott, No. 03-11-00130-CV, 2013 WL 491016
(Tex. App.Austin Jan. 31, 2013, no pet. h.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.Austin 1990, no writ). . . . . . . . 43, 45
Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328
(Tex. App.Austin 2000, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Harrison v. Vance, 34 S.W.3d 660 (Tex. App.Dallas 2000, no pet.). . . . . . . . . . . . . . . . . . . . 25
Heard v. Houston Post Co., 684 S.W.2d 210
(Tex. App.Houston [1st Dist.] 1984, writ refd n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 84

287
Appendix 23
Heidenheimer v. Tex. Dept of Transp., No. 03-02-00187-CV, 2003 WL 124248

(Tex. App.Austin Jan. 16, 2003, pet. denied) (mem. op., not designated for publication). . . . 86
Hickman v. Moya, 976 S.W.2d 360 (Tex. App.Waco 1998, pet. denied). . . . . . . . . . . . . . . . . 25
Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Houston Chronicle Publg Co. v. City of Houston, 531 S.W.2d 177
(Tex. Civ. App.Houston [14th Dist.] 1975), writ refd n.r.e. per curiam, 536 S.W.2d 559
(Tex. 1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 99
Houston Chronicle Publg Co. v. Woods, 949 S.W.2d 492
(Tex. App.Beaumont 1997, orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546
(Tex. App.Austin 1983, writ refd n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 80, 144
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 90
Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958). . . . . . . . . 113
In re Bass, 113 S.W.3d 735 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67, 91
In re Monsanto Co., 998 S.W.2d 917 (Tex. App.Waco 1999, orig. proceeding). . . . . . . . . . 117
In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . 14
In re Tex. Farmers Ins. Exch., 990 S.W.2d 337
(Tex. App.Texarkana 1999, orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
In re Valero Energy Corp., 973 S.W.2d 453
(Tex. App.Houston [14th Dist.] 1998, orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . 67, 90
Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668
(Tex. 1976), cert. denied, 430 U.S. 931 (1977). . . . . . . . . . . . . . . . . . . . 71, 74, 75, 77, 78, 80, 111
Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011).. . . . . . . . . . . . . . . . . 63
Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W.2d 644
(Tex. 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Justice v. Belo Broadcasting Corp., 472 F. Supp. 145 (N.D. Tex. 1979). . . . . . . . . . . . . . . 77, 151
Keever v. Finlan, 988 S.W.2d 300 (Tex. App.Dallas 1999, pet. dismd). . . . . . . . . . . . . . . . . 21

288
Appendix 23
Kneeland v. Natl Collegiate Athletic Assn, 650 F. Supp. 1064 (W.D. Tex. 1986),
revd on other grounds, 850 F.2d 224 (5th Cir. 1988), cert. denied, 488 U.S. 1042 (1989).. . . . 36
Kneeland v. Natl Collegiate Athletic Assn, 850 F.2d 224 (5th Cir. 1988),
cert. denied, 488 U.S. 1042 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455
(Tex. App.Houston [14th Dist.] 1996, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489
(Tex. Civ. App.Texarkana 1979, writ refd n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 150
Moore v. Henry, 960 S.W.2d 82 (Tex. App.Houston [1st Dist.] 1996, no writ). . . . . . . . . . . . 25
Morales v. Ellen, 840 S.W.2d 519 (Tex. App.El Paso 1992, writ denied). . . . . . 61, 75, 76, 102
Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Natl Archives & Records Admin. v. Favish, 541 U.S. 157 (2004). . . . . . . . . . . . . . . . . . . . . . . . 77
Natl Parks & Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974). . . . . . . . . . . . . . 114
Natl Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 91, 117
Natl Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . 117
Osborne v. Johnson, 954 S.W.2d 180 (Tex. App.Waco 1997, orig. proceeding). . . . . . . . . . . 90
Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749 (Tex. 1991). . . . . . . . . . . . . . . . 91
Paul v. Davis, 424 U.S. 693 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Permian Report v. Lacy, 817 S.W.2d 175 (Tex. App.El Paso 1991, writ denied). . . . . . . . . . . 8
Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), cert. denied,
474 U.S. 1062 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Roe v. Wade, 410 U.S. 113 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Roviaro v. United States, 353 U.S. 53 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Simmons v. Kuzmich, 166 S.W.3d 342 (Tex. App.Fort Worth 2005, no pet.).. . . . . . . . . . . . . 45
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

289
Appendix 23
Tex. Commn on Envtl. Quality v. Abbott, 311 S.W.3d 663

(Tex. App.Austin 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336
(Tex. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 80
Tex. Dept of Pub. Safety v. Abbott, 310 S.W.3d 670 (Tex. App.Austin 2010, no pet.). . . . . 108
Tex. Dept of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P.,
343 S.W.3d 112 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Tex. Dept of Pub. Safety v. Gilbreath, 842 S.W.2d 408
(Tex. App.Austin 1992, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 115
Tex. State Bd. of Chiropractic Examrs v. Abbott, 391 S.W.3d 343
(Tex. App.Austin 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Tex. State Employees Union v. Tex. Dept of Mental Health & Mental Retardation,
746 S.W.2d 203 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.Austin 2002, no pet.). . . . . . 2, 36, 42, 59, 66, 81
Thomas v. El Paso County Cmty. Coll. Dist., 68 S.W.3d 722
(Tex. App.El Paso 2001, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
United States Dept of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
United States v. Amalgamated Life Ins. Co., 534 F. Supp. 676 (S.D.N.Y. 1982). . . . . . . . . . . . . 77
United States v. Napper, 887 F.2d 1528 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479
(Tex. App.Austin 1997, orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 83, 84
Whalen v. Roe, 429 U.S. 589 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

290
Appendix 23
PART SIX:
TABLE OF STATUTES, RULES, REGULATIONS
Texas Constitution
Art. III, sec. 52(a).. . . . . . . . . . . . . . . . . . . . 16, 26
Art. IV, sec. 22.. . . . . . . . . . . . . . . . . . . . . . . . . 64
Art. V, sec. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Texas Civil Statutes
Art. 4447cc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Texas Code of Criminal Procedure
2.12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62.005.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62.051.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62.053.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62.054.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
136
107
107
107
107
107
Texas Alcoholic Beverage Code

5.14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.31.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.36.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.361.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
94
94
94
94
Texas Civil Practice & Remedies Code

154.073.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Ch. 101.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Texas Education Code
21.355.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
51.212.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
51.910.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Ch. 21, Subch. B. . . . . . . . . . . . . . . . . . . . . . . . 72
Tit. 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Tit. 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Texas Election Code
13.0021.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
18.008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Texas Family Code
51.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
51.03.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
51.14(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 104-105
58.007.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-105
101.003.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
261.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
261.201.. . . . . . . . . . . . . . . . . . . . . . . . 71, 106-107
Ch. 261.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 71
Texas Government Code

306.003.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
306.004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
311.005(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 145
402.006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
402.041.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
402.042.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
402.043.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
402.044.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
402.045.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
411.048.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
411.081.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
411.082.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
411.083.. . . . . . . . . . . . . . . . . . . . . . . . . 103, 104
411.135.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
418.176-.182. . . . . . . . . . . . . . . . . . . . . . . . . 108
441.180-205. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
466.019(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
466.020.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
508.313.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
551.022.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
551.104.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
552.001.. . . . . . . . . . . . . . . . . . . . . . 1, 2, 28, 177
552.002.. . . . . . . . 2, 11-12, 16, 17-18, 19, 21, 91,
177-178
552.003.. . . . . . . 7-10, 13-14, 18, 50, 51, 178-179
552.0035.. . . . . . . . . . . . . . . . . . . . 5, 13, 15, 179
552.0036.. . . . . . . . . . . . . . . . . . . . . . . 10-11, 180
552.0038.. . . . . . . . . . . . . . . . . . . . . . . . . 180-182
552.004.. . . . . . . . . . . . . . . . . . . . . . . . . . 63, 182
552.005.. . . . . . . . . . . . . . . . . . . . . . . . . . 65, 182
552.0055.. . . . . . . . . . . . . . . . . . . . . . . . . 21, 182
552.006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
552.007.. . . . . . . . . . . . . . . 28-29, 34, 35, 70, 182
552.008.. . . . . . . . . . . . . . . . . . . . 29-31, 182-184
552.009.. . . . . . . . . . . . . . . . . . . . . . . . . . 184-185
552.010.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
552.011.. . . . . . . . . . . . . . . . . . . . . . . . 2, 64, 186
552.012.. . . . . . . . . . . . . . . . . . . . . . 3-6, 186-187
552.021.. . . . . . . . . . . . . . 17, 21, 28, 42, 83, 187
552.0215.. . . . . . . . . . . . . . . . . . . . . . . . . 63, 187
552.022.. . . . . . . 2, 44, 66-67, 72, 81, 86, 89, 91,
92, 101, 188-189
552.0221.. . . . . . . . . . . . . . . . . . . . . . . . . 189-190
552.0225.. . . . . . . . . . . . . . . 68-69, 169, 190-191
552.023.. . . . . 29, 31-32, 146, 150, 153, 160, 191
552.024.. . . . . . . . . . 133, 134-135, 136, 191-193
552.025.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
552.026.. . . . . . . . . . . . . 29, 32-33, 123-126, 193
552.027.. . . . . . . . . . . . . . . . . . . . . . . . 18-19, 193

291
Appendix 23
552.028.. . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 194

552.029.. . . . . . . . . . . . . . . . . . . . . . . 157, 194-195
552.101.. . . 43, 44, 45, 48, 65, 70-79, 80, 89, 100,
100, 103, 111, 112, 125, 129, 195
552.102.. . . . . . . . . . . . . . . . . . . 43, 45, 80-81, 195
552.103.. . . . . . . . . . . . . . . . 36, 43, 45, 81-84, 195
552.104.. . . . . . . . . . . . . . . . . . . . . . 66, 84-86, 196
552.105.. . . . . . . . . . . . . . . . . . . . . . . . . 86-87, 196
552.106.. . . . . . . . . . . . . . . . . . . . . . . . . 87-89, 196
552.107.. . . . . . . . . . . . . . . . 43, 66-67, 89-92, 196
552.108.. . . . . . . . . . . . . . . . . 66, 92-102, 196-197
552.1085.. . . . . . . . . . . . . . . 78, 109-111, 197-199
552.109.. . . . . . . . . . . . . . . . . . . . 45, 111-112, 199
552.110.. . . . . . . . . . 45, 48, 69, 85, 112-114, 122,
152, 200
552.111.. . . . . 26, 29, 36, 43, 45, 66-67, 84, 88-89,
91, 114-117, 200
552.112.. . . . . . . . . . . . . . . . . . . . . . . 118-119, 200
552.113.. . . . . . . . . . . . 48, 112, 119-123, 200-202
552.114.. . . . . . . . . . . . . . . . 29, 32, 123, 125, 202
552.115.. . . . . . . . . . . . . . . . . . . 126-130, 202-204
552.116.. . . . . . . . . . . . . . . . . . . . . . . 130-131, 204
552.117.. . . . . . . . . 37, 38, 131-136, 139, 204-205
552.1175.. . . . . . . . . . . . . . . 34, 137-140, 206-208
552.1176.. . . . . . . . . . . . . . . . . . . . . . 140-141, 208
552.118.. . . . . . . . . . . . . . . . . . . . . . . . . . 141, 208
552.119.. . . . . . . . . . . . . . . . . . . 141-142, 208-209
552.120.. . . . . . . . . . . . . . . . . . . . . . . 142-143, 209
552.121.. . . . . . . . . . . . . . . . . . . . . . . . . . 143, 209
552.122.. . . . . . . . . . . . . . . . . . . . . . . 143-144, 209
552.123.. . . . . . . . . . . . . . . . . . . . . . . . . . 144, 209
552.1235.. . . . . . . . . . . . . . . . . . 144-145, 209-210
552.124.. . . . . . . . . . . . . . . . . . . . . . . 145-146, 210
552.125.. . . . . . . . . . . . . . . . . . . . . . . . . . 146, 210
552.126.. . . . . . . . . . . . . . . . . . . . . . . . . . 147, 210
552.127.. . . . . . . . . . . . . . . . . . . . . . . 147, 210-211
552.128.. . . . . . . . . . . . . . . . . . . . . . . . . . 148, 211
552.129.. . . . . . . . . . . . . . . . . . . . . . . . . . 149, 211
552.130.. . . . . . . . . . 32, 51, 53, 149-151, 211-212
552.131.. . . . . . . . . . . . 48, 112, 151-152, 212-213
552.132.. . . . . . . . . . . . . . . . 75, 152-153, 213-214
552.1325.. . . . . . . . . . . . . . . . . . . 75, 153-154, 214
552.133.. . . . . . . . . . . . . . . . 66, 154-156, 214-216
552.134.. . . . . . . . . . . . . . . . . . . . . . . 157-158, 217
552.135.. . . . . . . . . . . . . . . . . . . 158-159, 217-218
552.136.. . . . . . . . . . 32, 51, 53, 159-161, 218-219
552.137.. . . . . . . . . . . . . . . . . . . . 51, 161-162, 219
552.138.. . . . . . . . . . . . . . . . . . . 162-164, 219-221
552.139.. . . . . . . . . . . . . . . . . . . 164-165, 221-222
552.140.. . . . . . . . . . . . . . . . . . . . . . . 165-166, 222
552.141.. . . . . . . . . . . . . . . . . . . . . . . 166-167, 223
552.142.. . . . . . . . . . . . . . . . . . . . . . . . . . 167, 223
552.1425.. . . . . . . . . . . . . . . . . . . . . 167-168, 223

552.143.. . . . . . . . . . . . . . . . . . . 69, 168-169, 224
552.144.. . . . . . . . . . . . . . . . . . . . . . 169, 224-225
552.145.. . . . . . . . . . . . . . . . . . . . . . . . . 169, 225
552.146.. . . . . . . . . . . . . . . . . . . . . . . . . 170, 225
552.147.. . . . . . . . . . . 63, 135, 170-171, 225-226
552.148.. . . . . . . . . . . . . . . . . . . . . . . . . 171, 226
552.149.. . . . . . . . . . . . . . . . . . 171-172, 226-227
552.150.. . . . . . . . . . . . . . . . . . . . . . 173, 227-228
552.151.. . . . . . . . . . . . . . . . . . 173-174, 228-229
552.152.. . . . . . . . . . . . . . . . . . . . 78-79, 174, 229
552.153.. . . . . . . . . . . . . . . . . . 175-176, 229-230
552.154.. . . . . . . . . . . . . . . . . . . . . . . . . 176, 230
552.201.. . . . . . . . . . . . . . . . . . . . . . . . . . 21, 230
552.202.. . . . . . . . . . . . . . . . . . . . . . . . . . 21, 230
552.203.. . . . . . . . . . . . . . . . . . . . . . . 21, 64, 231
552.204.. . . . . . . . . . . . . . . . . . . . . . . . . . 22, 231
552.205.. . . . . . . . . . . . . . . . . . . . . . . . . . 19, 231
552.221.. . . . . . . . . . . . . . . . . . 22-23, 25, 28, 232
552.222.. . . . . . . . . . . . . 20, 23-24, 150, 232-233
552.223.. . . . . . . . . . . . . . . . . . . . . . . . 23-24, 233
552.224.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
552.225.. . . . . . . . . . . . . . . . . . . . . . . 25, 233-234
552.226.. . . . . . . . . . . . . . . . . . . . . . . . . . 26, 234
552.227.. . . . . . . . . . . . . . . . . . . . . . . . . . 21, 234
552.228.. . . . . . . . . . . . . . . . . . . . 25, 26, 27, 234
552.229.. . . . . . . . . . . . . . . . . . . . . . . . . . 234-235
552.230.. . . . . . . . . . . . . . . . . . . . . . . . . . 25, 235
552.231.. . . . . . . . . . . . . . . . . 27, 28, 55, 235-236
552.232.. . . . . . . . . . . . . . . . . . . . . . . 21, 236-237
552.261.. . . . . . . . . . . . . . . . . . . . . . . 50, 237-238
552.2615.. . . . . . . . . . . . . . . . . . . 53-55, 238-239
552.262.. . . . . . . . . . . . . . . . . . . . 50, 57, 239-240
552.263.. . . . . . . . . . . . . . . . . . . . 54-55, 241-242
552.264.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
552.265.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
552.266.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
552.2661.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
552.267.. . . . . . . . . . . . . . . . . . . . . . . . . . 53, 242
552.268.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
552.269.. . . . . . . . . . . . . . . . . . . . . . . 56, 242-243
552.270.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
552.271.. . . . . . . . . . . . . . . . . . . . 52-53, 243-244
552.272.. . . . . . . . . . . . . . . . . 52-53, 57, 244-245
552.274.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
552.275.. . . . . . . . . . . . . . . . . . . . 55-56, 245-247
552.301.. . . . . . . 19-20, 35-40, 41-44, 61, 65, 81,
108, 247-249
552.302.. . . . . . . . . . . . 35, 39, 40, 43, 44-46, 249
552.303.. . . . . . . . . . . . . . . . . . . . 35, 41, 46, 249
552.3035.. . . . . . . . . . . . . . . . . . . . . . 41, 49, 250
552.304.. . . . . . . . . . . . . . . . . . . . . . . 49, 78, 250

292
Appendix 23
552.305.. . . . . . 46-48, 61, 112, 123, 152, 250-251

552.306.. . . . . . . . . . . . . . . . . . . . . 29, 41, 49, 251
552.307.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
552.308.. . . . . . . . . . . . . . . . . . 44, 49-50, 251-252
552.309.. . . . . . . . . . . . . . . . . . . . . . . . 44, 50, 252
552.321.. . . . . . . . . . . . . . . 57, 58-59, 62, 252-253
552.3215.. . . . . . . . . . . . . . 57, 59-61, 62, 253-254
552.322.. . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 255
552.3221.. . . . . . . . . . . . . . . . . . . . . . . . . . 62, 255
552.323.. . . . . . . . . . . . . . . . . . . . . 62, 63, 255-256
552.324.. . . . . . . . . . . . . . . . . . 58, 61, 62, 63, 256
552.325.. . . . . . . . . . . . . . . . . . 47, 61, 62, 256-257
552.326.. . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 257
552.327.. . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 257
552.351.. . . . . . . . . . . . . . . . . . 21, 58, 64, 257-258
552.352.. . . . . . . . . . . . . . . . . . 30, 43, 58, 70, 258
552.353.. . . . . . . . . . . . . . . . . . . . . . . . 58, 62, 259
76.006(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
81.011(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
81.033.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2051.044.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
2252.907.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ch. 76.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Ch. 402.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65
Ch. 411, Subch. F.. . . . . . . . . . . . . . . . . . . . . . 103
Ch. 551.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Ch. 2001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Texas Health & Safety Code
191.022.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
481.075.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
481.076.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
611.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
772.118.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
772.218.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
772.318.. . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 108
773.091.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Ch. 192.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Ch. 772.. . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 108
Tit. 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Texas Human Resources Code
Ch. 42.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Tit. 12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Texas Insurance Code
1.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-73
21.28.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Texas Local Government Code
118.011.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
118.0145.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
118.052.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
118.0605.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
118.144.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
143.051.055. . . . . . . . . . . . . . . . . . . . . . . . . 102
143.089.. . . . . . . . . . . . . . . . . . . . . . . . . . 102-103
143.1214(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 72
191.008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
202.002(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Ch. 143.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Ch. 394.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Chs. 201 - 205. . . . . . . . . . . . . . . . . . . . . . . . . 63
Texas Natural Resources Code
Ch. 91.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Texas Occupations Code
159.002(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
901.160.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Texas Penal Code
37.10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Texas Rules of Civil Procedure
76a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
192.5.. . . . . . . . . . . . . . . . . . . . . . 66-67, 116-117
Texas Rules of Evidence
503. . . . . . . . . . . . . . . . . . . . . . . 66-67, 89-90, 91
511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Texas Tax Code
25.025.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Texas Transportation Code
550.065.. . . . . . . . . . . . . . . . . . . . . . 57, 101, 150
724.018.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Ch. 521, Subch. C. . . . . . . . . . . . . . . . . . . . . 103
Ch. 550.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Ch. 730.. . . . . . . . . . . . . . . . . . . . . . . . . . 150-151
Texas Utilities Code
182.052.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Texas Administrative Code
1 T.A.C. 63.1.. . . . . . . . . . . . . . . . . . . . 31, 260
1 T.A.C. 63.2.. . . . . . . . . . . . . . . . . 31, 260-261
1 T.A.C. 63.3.. . . . . . . . . . . . . . . . . . . . 31, 261
1 T.A.C. 63.4.. . . . . . . . . . . . . . . . . 31, 261-262
1 T.A.C. 63.5.. . . . . . . . . . . . . . . . . . . . 31, 262
1 T.A.C. 63.6.. . . . . . . . . . . . . . . . . . . . 31, 262
1 T.A.C. 63.11.. . 135, 140, 151, 161, 164, 263
1 T.A.C. 63.12.. . 135, 140, 151, 161, 164, 263

293
Appendix 23
1 T.A.C. 63.13.. . . . . . . 135, 140, 151, 161, 164,

263-264
1 T.A.C. 63.14.. . . 135, 140, 151, 161, 164, 264
1 T.A.C. 63.15.. . . . . . . 135, 140, 151, 161, 164,
264-265
1 T.A.C. 63.16.. . . 135, 140, 151, 161, 164, 265
1 T.A.C. 63.21.. . . . . . . . . . . . . . . . . . . . 50, 265
1 T.A.C. 63.22.. . . . . . . . . . . . . . . . . . . . 50, 266
1 T.A.C. 63.23.. . . . . . . . . . . . . . . . . . . . 50, 266
1 T.A.C. 63.24.. . . . . . . . . . . . . . . . . . . . 50, 267
1 T.A.C. 70.1.. . . . . . . . . . . . . . . . . . 50, 267-268
1 T.A.C. 70.2.. . . . . . . . . . . . . . . 50, 52, 268-269
1 T.A.C. 70.3.. . . . . . . . . . . . . . . . . . 50, 269-274
1 T.A.C. 70.4.. . . . . . . . . . . . . . . . . . . . . 50, 274
1 T.A.C. 70.5 . . . . . . . . . . . . . . . . . . . . . 50, 275
1 T.A.C. 70.6.. . . . . . . . . . . . . . . . . . 50, 275-276
1 T.A.C. 70.7.. . . . . . . . . . . . 50, 54-55, 276-277
1 T.A.C. 70.8 . . . . . . . . . . . . 50, 56-57, 277-278
1 T.A.C. 70.9.. . . . . . . . . . . . . . . . . . 50, 278-279
1 T.A.C. 70.10.. . . . . . . . . . . . . . . . . 50, 279-281
1 T.A.C. 70.11.. . . . . . . . . . . . . . . . . 50, 281-285
1 T.A.C. 70.12.. . . . . . . . . . . . . . . . . . . . 50, 285
25 T.A.C. 181.23.. . . . . . . . . . . . . . . . . . 129-130
Texas Rules of Judicial Administration

12. . . . . . . . . . . . . . . . . . . . . 5, 7, 13, 14, 295-304
United States Code
5 U.S.C. 552(b)(4). . . . . . . . . . . . . . . . . . . 114
5 U.S.C. 552(b)(7). . . . . . . . . . . . . . . . . . . . 97
5 U.S.C. 552(b)(9). . . . . . . . . . . . . . . . . . . 122
20 U.S.C. 1232g. . . . . . . . . 23, 32-33, 123-126
42 U.S.C. 1320d-1(a). . . . . . . . . . . . . . . . . . 73
42 U.S.C. 1320d-2.. . . . . . . . . . . . . . . . . . . . 72
42 U.S.C. 9912-9926.. . . . . . . . . . . . . . . . . . 9
42 U.S.C. 12101 et seq... . . . . . . . . . . . . . . 73
49 U.S.C. 114. . . . . . . . . . . . . . . . . . . . . . . 108
United States Code of Federal Regulations
34 C.F.R. 99.3. . . . . . . . . . . . 33, 124, 125, 126
34 C.F.R. 99.31. . . . . . . . . . . . . . . . . . . . . 125
34 C.F.R. 99.33. . . . . . . . . . . . . . . . . . . . . 125
34 C.F.R. 99.35. . . . . . . . . . . . . . . . . . . . . 125
45 C.F.R. Pt. 160. . . . . . . . . . . . . . . . . . . . . . . 73
45 C.F.R. Pt. 164. . . . . . . . . . . . . . . . . . . . . . . 73
45 C.F.R. 160.103. . . . . . . . . . . . . . . . . . . . . 73
49 C.F.R. Pt. 1520. . . . . . . . . . . . . . . . . . . . . 108

294
Appendix 23
Part Seven
RULES OF JUDICIAL ADMINISTRATION

Rule 12. Public Access to Judicial Records
12.1 Policy. The purpose of this rule is to provide public access to information in the judiciary
consistent with the mandates of the Texas Constitution that the public interests are best served by
open courts and by an independent judiciary. The rule should be liberally construed to achieve its
purpose.
12.2
Definitions. In this rule:

(a)
Judge means a regularly appointed or elected judge or justice.
(b)
Judicial agency means an office, board, commission, or other similar entity that is in
the Judicial Department and that serves an administrative function for a court. A task
force or committee created by a court or judge is a judicial agency.
(c)
Judicial officer means a judge, former or retired visiting judge, referee,

commissioner, special master, court-appointed arbitrator, or other person exercising
adjudicatory powers in the judiciary. A mediator or other provider of non-binding
dispute resolution services is not a judicial officer.
(d)
Judicial record means a record made or maintained by or for a court or judicial

agency in its regular course of business but not pertaining to its adjudicative function,
regardless of whether that function relates to a specific case. A record of any nature
created, produced, or filed in connection with any matter that is or has been before
a court is not a judicial record. A record is a document, paper, letter, map, book,
tape, photograph, film, recording, or other material, regardless of electronic or
physical form, characteristics, or means of transmission.
(e)
Records custodian means the person with custody of a judicial record determined as
follows:
(1)
The judicial records of a court with only one judge, such as any trial court, are
in the custody of that judge. Judicial records pertaining to the joint
administration of a number of those courts, such as the district courts in a
particular county or region, are in the custody of the judge who presides over
the joint administration, such as the local or regional administrative judge.
(2)
The judicial records of a court with more than one judge, such as any
appellate court, are in the custody of the chief justice or presiding judge, who
must act under this rule in accordance with the vote of a majority of the
judges of the court. But the judicial records relating specifically to the
service of one such judge or that judges own staff are in the custody of that
judge.

295
Appendix 23
Part Seven
12.3
(3)
The judicial records of a judicial officer not covered by subparagraphs (1)

and (2) are in the custody of that officer.
(4)
The judicial records of a judicial agency are in the custody of its presiding
officer, who must act under this rule in accordance with agency policy or the
vote of a majority of the members of the agency.
Applicability. This rule does not apply to:

(a)
records or information to which access is controlled by:

(1)
a state or federal court rule, including:

(A)
a rule of civil or criminal procedure, including Rule 76a, Texas Rules

of Civil Procedure;
(B)
a rule of appellate procedure;
(C)
a rule of evidence;
(D)
a rule of administration;
(2)
a state or federal court order not issued merely to thwart the purpose of this
rule;
(3)
the Code of Judicial Conduct;
(4)
Chapter 552, Government Code, or another statute or provision of law;
(b)
records or information to which Chapter 552, Government Code, is made

inapplicable by statute, rule, or other provision of law, other than Section
552.003(1)(B);
(c)
records or information relating to an arrest or search warrant or a supporting affidavit,

access to which is controlled by:
(d)
(1)
a state or federal court rule, including a rule of civil or criminal procedure,

appellate procedure, or evidence; or
(2)
common law, court order, judicial decision, or another provision of law
elected officials other than judges.

296
Appendix 23
Part Seven
12.4
Access to Judicial Records.

(a)
(b)
Generally. Judicial records other than those covered by Rules 12.3 and 12.5 are open
to the general public for inspection and copying during regular business hours. But
this rule does not require a court, judicial agency, or records custodian to:
(1)
create a record, other than to print information stored in a computer;
(2)
retain a judicial record for a specific period of time;
(3)
allow the inspection of or provide a copy of information in a book or

publication commercially available to the public; or
(4)
respond to or comply with a request for a judicial record from or on behalf of

an individual who is imprisoned or confined in a correctional facility as
defined in Section 1.07(a), Penal Code, or in any other such facility in any
state, federal, or foreign jurisdiction.
Voluntary Disclosure. A records custodian may voluntarily make part or all of the
information in a judicial record available to the public, subject to Rules 12.2(e)(2)
and 12.2(e)(4), unless the disclosure is expressly prohibited by law or exempt under
this rule, or the information is confidential under law. Information voluntarily
disclosed must be made available to any person who requests it.
12.5 Exemptions from Disclosure. The following records are exempt from disclosure under
this rule:
(a)
Judicial Work Product and Drafts. Any record that relates to a judicial officers
adjudicative decision-making process prepared by that judicial officer, by another
judicial officer, or by court staff, an intern, or any other person acting on behalf of or
at the direction of the judicial officer.
(b)
Security Plans. Any record, including a security plan or code, the release of which
would jeopardize the security of an individual against physical injury or jeopardize
information or property against theft, tampering, improper use, illegal disclosure,
trespass, unauthorized access, or physical injury.
(c)
Personnel Information. Any personnel record that, if disclosed, would constitute a

clearly unwarranted invasion of personal privacy.
(d)
Home Address and Family Information. Any record reflecting any persons home
address, home or personal telephone number, social security number, or family
members.

297
Appendix 23
Part Seven
(e)
Applicants for Employment or Volunteer Services. Any records relating to an

applicant for employment or volunteer services.
(f)
Internal Deliberations on Court or Judicial Administration Matters. Any record

relating to internal deliberations of a court or judicial agency, or among judicial
officers or members of a judicial agency, on matters of court or judicial
administration.
(g)
Court Law Library Information. Any record in a law library that links a patrons
name with the materials requested or borrowed by that patron.
(h)
Judicial Calendar Information. Any record that reflects a judicial officers

appointments or engagements that are in the future or that constitute an invasion of
personal privacy.
(i)
Information Confidential Under Other Law. Any record that is confidential or

exempt from disclosure under a state or federal constitutional provision, statute or
common law, including information that relates to:
(j)
(k)
(1)
a complaint alleging misconduct against a judicial officer, if the complaint is

exempt from disclosure under Chapter 33, Government Code, or other law;
(2)
a complaint alleging misconduct against a person who is licensed or regulated

by the courts, if the information is confidential under applicable law; or
(3)
a trade secret or commercial or financial information made privileged or

confidential by statute or judicial decision.
Litigation or Settlement Negotiations. Any judicial record relating to civil or

criminal litigation or settlement negotiations:
(1)
in which a court or judicial agency is or may be a party; or
(2)
in which a judicial officer or member of a judicial agency is or may be a party

as a consequence of the person's office or employment.
Investigations of Character or Conduct. Any record relating to an investigation of

any persons character or conduct, unless:
(1)
the record is requested by the person being investigated; and
(2)
release of the record, in the judgment of the records custodian, would not
impair the investigation.

298
Appendix 23
Part Seven
(l)
12.6
Examinations. Any record relating to an examination administered to any person,

unless requested by the person after the examination is concluded.
Procedures for Obtaining Access to Judicial Records.

(a)
Request. A request to inspect or copy a judicial record must be in writing and must
include sufficient information to reasonably identify the record requested. The
request must be sent to the records custodian and not to a court clerk or other agent
for the records custodian. A requestor need not have detailed knowledge of the
records custodians filing system or procedures in order to obtain the information.
(b)
Time for Inspection and Delivery of Copies. As soon as practicableand not more
than 14 daysafter actual receipt of a request to inspect or copy a judicial record, if
the record is available, the records custodian must either:
(1)
allow the requestor to inspect the record and provide a copy if one is
requested; or
(2)
send written notice to the requestor stating that the record cannot within the
prescribed period be produced or a copy provided, as applicable, and setting
a reasonable date and time when the document will be produced or a copy
provided, as applicable.
(c)
Place for Inspection. A records custodian must produce a requested judicial record
at a convenient, public area.
(d)
Part of Record Subject to Disclosure. If part of a requested record is subject to

disclosure under this rule and part is not, the records custodian must redact the
portion of the record that is not subject to disclosure, permit the remainder of the
record to be inspected, and provide a copy if requested.
(e)
Copying; Mailing. The records custodian may deliver the record to a court clerk for
copying. The records custodian may mail the copy to a requestor who has prepaid
the postage.
(f)
Recipient of Request not Custodian of Record. A judicial officer or a presiding

officer of a judicial agency who receives a request for a judicial record not in his or
her custody as defined by this rule must promptly attempt to ascertain who the
custodian of the record is. If the recipient of the request can ascertain who the
custodian of the requested record is, the recipient must promptly refer the request to
that person and notify the requestor in writing of the referral. The time for response
prescribed in Rule 12.6(b) does not begin to run until the referral is actually received
by the records custodian. If the recipient cannot ascertain who the custodian of the
requested record is, the recipient must promptly notify the requestor in writing that

299
Appendix 23
Part Seven
the recipient is not the custodian of the record and cannot ascertain who the custodian
of the record is.
12.7
(g)
Inquiry to Requestor. A person requesting a judicial record may not be asked to

disclose the purpose of the request as a condition of obtaining the judicial record.
But a records custodian may make inquiry to establish the proper identification of the
requestor or to clarify the nature or scope of a request.
(h)
Uniform Treatment of Requests. A records custodian must treat all requests for
information uniformly without regard to the position or occupation of the requestor
or the person on whose behalf a request is made, including whether the requestor or
such person is a member of the media.
Costs for Copies of Judicial Records; Appeal of Assessment.

(a)
(b)
12.8
Cost. The cost for a copy of a judicial record is either:

(1)
the cost prescribed by statute, or
(2)
if no statute prescribes the cost, the cost the Office of the Attorney General
prescribes by rule in the Texas Administrative Code.
Waiver or Reduction of Cost Assessment by Records Custodian. A records custodian

may reduce or waive the charge for a copy of a judicial record if:
(1)
doing so is in the public interest because providing the copy of the record
primarily benefits the general public, or
(2)
the cost of processing collection of a charge will exceed the amount of the
charge.
(c)
Appeal of Cost Assessment. A person who believes that a charge for a copy of a
judicial record is excessive may appeal the overcharge in the manner prescribed by
Rule 12.9 for the appeal of the denial of access to a judicial record.
(d)
Records Custodian Not Personally Responsible for Cost. A records custodian is not
required to incur personal expense in furnishing a copy of a judicial record.
Denial of Access to a Judicial Record.

(a)
When Request May be Denied. A records custodian may deny a request for a judicial
record under this rule only if the records custodian:
(1)
reasonably determines that the requested judicial record is exempt from

required disclosure under this rule; or

300
Appendix 23
Part Seven
(2)
12.9
makes specific, non-conclusory findings that compliance with the request

would substantially and unreasonably impede the routine operation of the
court or judicial agency.
(b)
Time to Deny. A records custodian who denies access to a judicial record must
notify the person requesting the record of the denial within a reasonable timenot
to exceed 14 daysafter receipt of the request, or before the deadline for responding
to the request extended under Rule 12.6(b)(2).
(c)
Contents of Notice of Denial. A notice of denial must be in writing and must:

(1)
state the reason for the denial;
(2)
inform the person of the right of appeal provided by Rule 12.9; and
(3)
include the name and address of the Administrative Director of the Office of
Court Administration.
Relief from Denial of Access to Judicial Records.

(a)
Appeal. A person who is denied access to a judicial record may appeal the denial by
filing a petition for review with the Administrative Director of the Office of Court
Administration.
(b)
Contents of Petition for Review. The petition for review:

(1)
must include a copy of the request to the record custodian and the records
custodians notice of denial;
(2)
may include any supporting facts, arguments, and authorities that the
petitioner believes to be relevant; and
(3)
may contain a request for expedited review, the grounds for which must be
stated.
(c)
Time for Filing. The petition must be filed not later than 30 days after the date that
the petitioner receives notice of a denial of access to the judicial record.
(d)
Notification of Records Custodian and Presiding Judges. Upon receipt of the

petition for review, the Administrative Director must promptly notify the records
custodian who denied access to the judicial record and the presiding judge of each
administrative judicial region of the filing of the petition.
(e)
Response. A records custodian who denies access to a judicial record and against
whom relief is sought under this section maywithin 14 days of receipt of notice

301
Appendix 23
Part Seven
from the Administrative Directorsubmit a written response to the petition for

review and include supporting facts and authorities in the response. The records
custodian must mail a copy of the response to the petitioner. The records custodian
may also submit for in camera inspection any record, or a sample of records, to which
access has been denied.
(f)
Formation of Special Committee. Upon receiving notice under Rule 12.9(d), the
presiding judges must refer the petition to a special committee of not less than five
of the presiding judges for review. The presiding judges must notify the
Administrative Director, the petitioner, and the records custodian of the names of the
judges selected to serve on the committee.
(g)
Procedure for Review. The special committee must review the petition and the
records custodians response and determine whether the requested judicial record
should be made available under this rule to the petitioner. The special committee
may request the records custodian to submit for in camera inspection a record, or a
sample of records, to which access has been denied. The records custodian may
respond to the request in whole or in part but it not required to do so.
(h)
Considerations. When determining whether the requested judicial record should be

made available under this rule to petition, the special committee must consider:
(1)
the text and policy of this Rule;
(2)
any supporting and controverting facts, arguments, and authorities in the

petition and the response; and
(3)
prior applications of this Rule by other special committees or by courts.
(i)
Expedited Review. On request of the petitioner, and for good cause shown, the
special committee may schedule an expedited review of the petition.
(j)
Decision. The special committees determination must be supported by a written

decision that must:
(1)
issue within 60 days of the date that the Administrative Director received the
petition for review;
(2)
either grant the petition in whole or in part or sustain the denial of access to
the requested judicial record;
(3)
state the reasons for the decision, including appropriate citations to this rule;
and

302
Appendix 23
Part Seven
(4)
(k)
identify the record or portions of the record to which access is ordered or

denied, but only if the description does not disclose confidential information.
Notice of Decision. The special committee must send the decision to the
Administrative Director. On receipt of the decision from the special committee, the
Administrative Director must:
(1)
immediately notify the petitioner and the records custodian of the decision
and include a copy of the decision with the notice; and
(2)
maintain a copy of the special committees decision in the Administrative

Directors office for public inspection.
(l)
Publication of Decisions. The Administrative Director must publish periodically to

the judiciary and the general public the special committees decisions.
(m)
Final Decision. A decision of a special committee under this rule is not appealable
but is subject to review by mandamus.
(n)
Appeal to Special Committee Not Exclusive Remedy. The right of review provided
under this subdivision is not exclusive and does not preclude relief by mandamus.
12.10 Sanctions. A records custodian who fails to comply with this rule, knowing that the failure
to comply is in violation of the rule, is subject to sanctions under the Code of Judicial Conduct.
Comment to 2008 change:
The Attorney Generals rule, adopted in accordance with Section 552.262 of the
Government Code, is in Section 70.3 of Title 1 of the Texas Administrative Code
Comments
1.
Although the definition of judicial agency in Rule 12.2(b) is comprehensive,

applicability of the rule is restricted by Rule 12.3. The rule does not apply to judicial
agencies whose records are expressly made subject to disclosure by statute, rule, or
law. An example is the State Bar (an administrative agency of the judicial
department, Tex. Govt Code 81.011(a)), which is subject to the Public
Information Act. Tex. Govt Code 81.033. Thus, no judicial agency must comply
with both the Act and this rule; at most one can apply. Nor does the rule apply to
judicial agencies expressly excepted from the Act by statute (other than by the
general judiciary exception in section 552.003(b) of the Act), rule, or law. Examples
are the Board of Legal Specialization, Tex. Govt Code 81.033, and the Board of
Disciplinary Appeals, Tex. R. Disciplinary App. 7.12. Because these boards are
expressly excepted from the Act, their records are not subject to disclosure under this
rule, even though no law affirmatively makes their records confidential. The Board

303
Appendix 23
Part Seven
of Law Examiners is partly subject to the Act and partly exempt, Tex. Govt Code
82.003, and therefore this rule is inapplicable to it. An example of a judicial
agency subject to the rule is the Supreme Court Advisory Committee, which is
neither subject to nor expressly excepted from the Act, and whose records are not
made confidential by any law.
2.
As stated in Rule 12.4, this rule does not require the creation or retention of records,
but neither does it permit the destruction of records that are required to be maintained
by statute or other law, such as Tex. Govt Code 441.158-.167, .180-.203; Tex.
Local Govt Code ch. 203; and 13 Tex. Admin. Code 7.122.
3.
Rule 12.8 allows a records custodian to deny a record request that would substantially
and unreasonably impede the routine operation of the court or judicial agency. As
an illustration, and not by way of limitation, a request for all judicial records that
is submitted every day or even every few days by the same person or persons acting
in concert could substantially and unreasonably impede the operations of a court or
judicial agency that lacked the staff to respond to such repeated requests.

304
Appendix 23
Part Eight
Public Information Act Deadlines for Governmental Bodies

Step
Action
Section
Deadline
Governmental body must either release

requested public information promptly, or if
not within ten days of receipt of request, its
Public Information Officer (PIO) must
certify fact that governmental body cannot
produce the information within ten days and
state date and hour within reasonable time
when the information will be available.
552.221(a)
Promptly; Within ten business days of

receipt of request for information make
public information available, or
552.221(d)
Certify to requestor date and hour

when public information will be
available.
Governmental body seeking to withhold

information based on one or more of the
exceptions under Subchapter C must request
an attorney general decision stating all
exceptions that apply, if there has not been a
previous determination.
552.301(b)
Within a reasonable time, but not later

than the tenth business day after
receipt of the request for information.
Governmental body must provide notice to the

requestor of the request for attorney general
decision and a copy of the governmental
bodys request for an attorney general
decision.
552.301(d)

than the tenth business day after
Governmental body must submit to the

attorney general comments explaining why the
exceptions raised in Step 2 apply.
552.301(e)

than the fifteenth business day after
Governmental body must submit to attorney

general copy of written request for
information.
552.301(e)


general signed statement as to date on which
written request for information was received.
552.301(e)


general copy of information requested or
representative sample if voluminous amount of
information is requested.
552.301(e)

Governmental body must copy the requestor

on written comments submitted to the attorney
general in Step 4.
552.301
(e-1)

a) Governmental body makes a good faith

attempt to notify person whose proprietary
information may be protected from disclosure
under sections 552.101, 552.110, 552.113, or
552.131. Notification includes: 1) copy of
written request; 2) letter, in the form
prescribed by the attorney general, stating that
the third party may submit to the attorney
general reasons requested information should
be withheld.
552.305(d)

than the tenth business day after date
governmental body receives request
for information.
b) Third party may submit brief to attorney

general.
552.305(d)

than the tenth business day of
receiving notice from governmental
body.
Public Information Handbook Office of the Attorney General

305
Appendix 23
Due
Done
Part Eight
Step
Action
Section
Deadline
10

general additional information if requested by
attorney general.
552.303(d)
Not later than the seventh calendar day

after date governmental body received
written notice of attorney generals
need for additional information.
11
Governmental body desires attorney general

reconsideration of attorney general decision.
552.301(f)
Public Information Act prohibits a

governmental body from seeking the
attorney generals reconsideration of
an open records ruling.
12
Governmental body files suit challenging the

attorney general decision.
552.324
Within thirty calendar days after the

date governmental body receives
attorney general decision.
13
Governmental body files suit against the

attorney general challenging the attorney
general decision to preserve an affirmative
defense to prosecution for failing to produce
requested information.
552.353(b)
Within ten calendar days after

governmental body receives attorney
generals decision that information is
public.

306
Appendix 23
Due
Done
Part Nine
Notice Statement to Persons Whose Proprietary

Information is Requested
(A governmental body must provide this notice to a person whose proprietary interests may be affected
by release of information within ten business days after receipt of the written request for information.)
NOTE: This notice is updated periodically. Please check the OAG website
http://www.texasattorneygeneral.gov for the latest version.
Date
Third Party Address

Dear M:
We have received a formal request to inspect or copy some of our files. A copy of the request for
information is enclosed. The requested files include records we received from you or from your
company. The Office of the Attorney General is reviewing this matter, and they will issue a decision
on whether Texas law requires us to release your records. Generally, the Public Information Act (the
Act) requires the release of requested information, but there are exceptions. As described below,
you have the right to object to the release of your records by submitting written arguments to the
attorney general that one or more exceptions apply to your records. You are not required to submit
arguments to the attorney general, but if you decide not to submit arguments, the Office of the
Attorney General will presume that you have no interest in withholding your records from disclosure.
In other words, if you fail to take timely action, the attorney general will more than likely rule that your
records must be released to the public. If you decide to submit arguments, you must do so not later
than the tenth business day after the date you receive this notice.
If you submit arguments to the attorney general, you must:
a)
identify the legal exceptions that apply,
b)
identify the specific parts of each document that are covered by each exception, and
c)
explain why each exception applies.
Govt Code 552.305(d). A claim that an exception applies without further explanation will not
suffice. Attorney General Opinion H-436 (1974). You may contact this office to review the
information at issue in order to make your arguments. We will provide the attorney general with a
copy of the request for information and a copy of the requested information, along with other material
required by the Act. The attorney general is generally required to issue a decision within 45 business
days.

307
Appendix 23
Part Nine
Please send your written comments to the Office of the Attorney General at the following address:
Office of the Attorney General
Open Records Division
P.O. Box 12548
If you wish to submit your written comments electronically, you may only do so via the Office of the
Attorney Generals eFiling System. An administrative convenience charge will be assessed for use
of the eFiling System. No other method of electronic submission is available. Please visit the attorney
generals website at http://www.texasattorneygeneral.gov for more information.
In addition, you are required to provide the requestor with a copy of your communication to the
Office of the Attorney General. Govt Code 552.305(e). You may redact the requestors copy of
your communication to the extent it contains the substance of the requested information. Govt
Code 552.305(e).
Commonly Raised Exceptions
In order for a governmental body to withhold requested information, specific tests or factors for the
applicability of a claimed exception must be met. Failure to meet these tests may result in the release
of requested information. We have listed the most commonly claimed exceptions in the Government
Code concerning proprietary information and the leading cases or decisions discussing them. This
listing is not intended to limit any exceptions or statutes you may raise.
Section 552.101: Information Made Confidential by Law
Section 552.110: Confidentiality of Trade Secrets and Commercial or Financial Information
Trade Secrets:
In re Bass, 113 S.W.3d 735 (Tex. 2003).
Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex.), cert. denied, 358 U.S. 898 (1958).
Commercial or Financial Information:
Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App.Austin 1999, pet.
filed) (construing previous version of section 552.110), abrogated by In re Bass, 113
S.W.3d 735 (Tex. 2003).

308
Appendix 23
Part Nine
Section 552.113: Confidentiality of Geological or Geophysical Information

Section 552.131: Confidentiality of Certain Economic Development Negotiation Information
If you have questions about this notice or release of information under the Act, please refer to
the Public Information Handbook published by the Office of the Attorney General, or contact
the attorney generals Open Government Hotline at (512) 478-OPEN (6736) or toll-free
at (877) 673-6839 (877-OPEN TEX). To access the Public Information Handbook or Attorney
General Opinions, including those listed above, please visit the attorney generals website at
http://www.texasattorneygeneral.gov.
Sincerely,
Officer for Public Information or Designee

Name of Governmental Body
Enclosure: Copy of request for information
cc:
Requestor
address
(w/o enclosures)
Office of the Attorney General
Open Records Division
P.O. Box 12548
(w/o enclosures)

309
Appendix 23
Part Ten
T EXAS G OVERNMENT C ODE S ECTION 552.024

P UBLIC A CCESS O PTION F ORM
[Note: This form should be completed and signed by the employee no later than the 14th day after the
date the employee begins employment, the public official is elected or appointed, or a former employee
or official ends employment or service.]
_______________________________________
(Name)
The Public Information Act allows employees, public officials and former employees and officials to
elect whether to keep certain information about them confidential. Unless you choose to keep it
confidential, the following information about you may be subject to public release if requested under
the Texas Public Information Act. Therefore, please indicate whether you wish to allow public release
of the following information.
PUBLIC ACCESS?
NO
YES
Home Address
Home Telephone Number
Social Security Number
Emergency Contact Information
Information that reveals whether you have family members
______________________________________
(Signature)
_________________
(Date)

310
Appendix 23
Subject Index
9-1-1 call, 107-108

access device numbers, 159-161
accident report, 57, 101, 150
active use, 23
addresses
business address, 74
confidentiality of certain, 131-140
public access option form, 310
Administrative Law Judge (ALJ)
communications, 169
agency memoranda, 114-116
See deliberative process
applicants, 74, 80, 144, 147
appraisal of property, 86-87
attorneys fees
See costs of litigation
attorney fee bill, 67, 91
attorney work product, 43, 66-67, 83-84, 91, 116117
attorney-client privilege, 66-67, 89-92
waiver, 92
audit working paper, 130-131, 146
aviation and maritime security, 108
basic information, 99-101
bid proposals
See competition and bidding
birth dates, 80, 139
birth records, 126-130
certification, 23
child abuse records, 106-107
civil enforcement, 58-60
civil remedies, 58-63
civil service law, 102
clarification, 20
commercial or financial information, 85, 112-114,
148, 151-152, 154-156
commercially available information, 18-19
common-law privacy doctrine,
See privacy
compelling reason for nondisclosure, 43-46
complaints of violations of the Act
informal, 57
formal, 60
competition and bidding, 84-86, 112-114, 148,
151-152, 154-156
computer and electronic information, 27-28
confidential by law, 43, 70-79
confidentiality provisions
applicant for certain positions with Teacher
Retirement System,176
appraisal district records, 171-172
birth records, 126-130
chief executive officer of institute of higher
education, 144
commercial information, 114
comptroller records, 171-172
computer security issues,164-165
credit card, debit card, and charge card
numbers, 159-161
crime victim impact statement, 153-154
crime victim compensation, 152-153
death records, 126-130
deferred adjudications, 167
email addresses, 161-162
economic development information, 151152
elected office-holder private
communications, 111-112
family violence shelter center, 162-164
geological information, 119-123
geophysical information, 119-123
historical research documents, 143
historically underutilized or disadvantaged
business, 148
hospital district employee, 173
inmates, 157-158
investment information, 168-169
library records, 145
marriage license,166-167
military discharge records, 165-166
minor, personal information held by
municipality, 171
motor vehicle inspection, 149
motor vehicle records, 149-151
neighborhood crime watch, 147
officer personal safety, 78-79, 174
official prescription information, 141
original manuscripts, 142
peace officer photographs, 141-142
personal family information,131-140
private donor to institute of higher
education, 144-145
proprietary records and trade secrets,
112-114

311
Appendix 23
public employee safety, 173, 174

public power utility competition,154-156
rare books, 142
select agents, 173-174
sexual assault program, 162-164
social security numbers, 170-171
State Bar information,140-141
superintendent of public school district, 147
Texas no-call list, 169
trade secrets, 112-114
transcripts of professional public school
employees, 81
confidentiality agreements, 70
constitutional privacy, 77
consultants, 8-10, 11-12, 90, 114-115
copies of public information, 25-26
copyrighted information, 26
corepublic information
release of, 66-67
application of exceptions to, 66-67
cost of copies and access
charges for paper copies, 50-52
charges for inspection, 52-53
complaints of overcharges, 56-57
cost provisions outside the Act, 57
Cost Rules, 267-285
deposit or bond requirement, 54
frequent requestors, 55-56
inspection of electronic record, 52-53
statement of estimated charges, 53-55
waiver/reduction of charges, 53
costs of litigation, 62-63
court-ordered confidentiality, 67, 92
credit and debit card information, 159-161
crime scene photos, 78, 109-111
crime victim compensation information, 152-153
crime victim impact statement, 153-154
criminal history information, 103, 167-168
criminal penalties for violations of the Act, 58
custodian of records, 11-13, 95
dates of birth
See birth dates
deadlines
calculating, 42
deadline chart, 305-306
for requesting Attorney General decision, 35,
44, 49
for issuing Attorney General decision, 49
for response to written request, 21-22, 44
death records, 126-130
declaratory judgment, 59
deferred adjudications, 167
deliberative process privilege, 115-116

destruction of records, 58, 63-64
discovery privileges, 66-67, 83, 89-92
discovery request, 65
discretionary exceptions
See permissive exceptions
drafts of documents, 87-89, 116
driver's license information, 149-151
eFiling, 49-50
economic development, 151-152
educational record, 32-33, 123-126
electronic mail, 17
email addresses, 161-162
emergency communication district, 72, 107-108
emergency medical services, 71, 72, 107-108
entities subject to the Act, 8-15
Family Educational Rights and Privacy Act
(FERPA), 32-33, 123-126
family violence shelter center, 162-164
fifteenth business day, 39-42, 44-46
financial information, 74, 76, 85-86, 112-114
financial institutions and securities, 118-119
forty-five day deadline, 49
Freedom of Information Act, 73, 97, 114
front-page information
See basic information
grand jury records, 15
Health Insurance Portability and Accountability
Act (HIPAA), 73
historical research, 143
historically underutilized or disadvantaged
business, 148
homeland security, 108
homeowners association, 10-11
informers privilege, 79
informer
school district, 158-159
inmate
as requestor, 24-25
information about, 157-158
inspection
right to inspect, 22-25
institution of higher education,
name of applicant for CEO, 144-145
intra- or interagency memorandum, 114-116
intra- or intergovernmental transfers, 34
investment information, 68-69, 168-169
judiciary, records of, 13-15, 294-303
juvenile law enforcement records, 104-105
law enforcement agency,
defined, 93-95
law enforcement exception, 92-108

312
Appendix 23
Legislative Budget Board, 170

legislative documents, 87-89
legislative requestor, 29-31
library records, 145-146
litigation under the Act, 58-63
litigation exception, 81-84
Administrative Procedure Act, 82
criminal litigation, 84, 99
rules of discovery, 83-84
Texas Tort Claims Act, 82
mandamus
See writ of mandamus
mandatory exception, 43
manipulation of data, 27, 50, 53, 55
marriage license application, 166-167
medical records, 71, 73
military discharge records, 165-166
motor vehicle record, 149-151
mug shots, 74, 97
neglect records
See child abuse records
neighborhood crime watch organization, 147
nonprofit corporation, 8-10
no-call list, 169
offense report
See law enforcement exception
official business definition, 18
Open Meetings Act, 65
original manuscripts, 142
partnerships, 175-176
peace officers, 78-79, 101-103, 131-140, 141-142,
174
permissive exceptions, 43
personal notes, 17-18
personal safety, 78-79, 174
personnel information, 76, 80, 102
prescription form, 141
preservation and destruction of records, 63-64
presumption of openness, 44-46
previous determination,36-38
privacy,
common-law, 74-76
constitutional, 77
drug testing, 74
false-light, 78
lapses at death, 77-78
private entities,
support by public funds, 8-10
privileges,
attorney-client, 66-67, 89-92
deliberative, 115-116
discovery, 65, 66-67, 83, 89-92
informers, 79
programming or manipulation of data, 27, 50, 53,

55
promise to keep information confidential, 70
promptly, 21-22
property owners associations, 10-11
prosecutor records, 99, 117
protective order, 67, 92
public business definition
See official business definition
public comments, 49
public information
categories of, 16
definition of, 16
public information request
See request for information
public power utility information, 154-156
radio dispatch logs, 100-101
rape victim, 75, 100
rare books, 142
repetitious or redundant requests, 21
representative samples, 41
request for information, 19-21, 40-41
by email or facsimile, 20
research, 21
right of access, 29, 31
selective disclosure, 23-24, 28-29, 34
select agents, 173-174
settlement agreement, 71, 72, 92
sex offender registration information, 107
sexual assault, 75, 100
sexual harassment, 75-76
sign,
required Public Information, 19
social security number, 170-171
special circumstances, 78
student record, 32-33, 123-126
submission to Attorney General
deadlines, 35, 44, 49
electronic submission, 49-50
US or interagency mail, 49
subpoena duces tecum, 21
tangible items, 16
ten-day deadline, 35, 39, 44
test items, 143-144
trade secret, 112-114
training, 3-6
transcripts of professional public school
employees, 81
voluntary disclosure, 28-29, 34
waiver of permissive exceptions, 43
withdrawal of request, 20, 54, 55
work product privilege, 91, 116-117
writ of mandamus, 58-59

313
Appendix 23

314
Appendix 23
The Texas Declaration of Independence

(March 2, 1836)
The Unanimous
Declaration of Independence
made by the
Delegates of the People of Texas
in General Convention
at the town of Washington
on the 2nd day of March 1836.
When a government has ceased to protect the lives,
liberty and property of the people, from whom its
legitimate powers are derived, and for the advancement
of whose happiness it was instituted, and so far from
being a guarantee for the enjoyment of those inestimable
and inalienable rights, becomes an instrument in the
hands of evil rulers for their oppression.
When the Federal Republican Constitution of their
country, which they have sworn to support, no longer has
a substantial existence, and the whole nature of their
government has been forcibly changed, without their
consent, from a restricted federative republic, composed
of sovereign states, to a consolidated central military
despotism, in which every interest is disregarded but that
of the army and the priesthood, both the eternal enemies
of civil liberty, the everready minions of power, and the
usual instruments of tyrants.
When, long after the spirit of the constitution has
Appendix 24
departed, moderation is at length so far lost by those in

power, that even the semblance of freedom is removed,
and the forms themselves of the constitution
discontinued, and so far from their petitions and
remonstrances being regarded, the agents who bear
them are thrown into dungeons, and mercenary armies
sent forth to force a new government upon them at the
point of the bayonet.
When, in consequence of such acts of malfeasance and
abdication on the part of the government, anarchy
prevails, and civil society is dissolved into its original
elements. In such a crisis, the first law of nature, the right
of self-preservation, the inherent and inalienable rights of
the people to appeal to first principles, and take their
political affairs into their own hands in extreme cases,
enjoins it as a right towards themselves, and a sacred
obligation to their posterity, to abolish such government,
and create another in its stead, calculated to rescue them
from impending dangers, and to secure their future
welfare and happiness.
Nations, as well as individuals, are amenable for their
acts to the public opinion of mankind. A statement of a
part of our grievances is therefore submitted to an
impartial world, in justification of the hazardous but
unavoidable step now taken, of severing our political
connection with the Mexican people, and assuming an
independent attitude among the nations of the earth.
The Mexican government, by its colonization laws,
invited and induced the Anglo-American population of
Appendix 24
Texas to colonize its wilderness under the pledged faith

of a written constitution, that they should continue to
enjoy that constitutional liberty and republican
government to which they had been habituated in the
land of their birth, the United States of America.
In this expectation they have been cruelly disappointed,
inasmuch as the Mexican nation has acquiesced in the
late changes made in the government by General
Antonio Lopez de Santa Anna, who having overturned
the constitution of his country, now offers us the cruel
alternative, either to abandon our homes, acquired by so
many privations, or submit to the most intolerable of all
tyranny, the combined despotism of the sword and the
priesthood.
It has sacrificed our welfare to the state of Coahuila, by
which our interests have been continually depressed
through a jealous and partial course of legislation, carried
on at a far distant seat of government, by a hostile
majority, in an unknown tongue, and this too,
notwithstanding we have petitioned in the humblest terms
for the establishment of a separate state government,
and have, in accordance with the provisions of the
national constitution, presented to the general Congress
a republican constitution, which was, without just cause,
contemptuously rejected.
It incarcerated in a dungeon, for a long time, one of our
citizens, for no other cause but a zealous endeavor to
procure the acceptance of our constitution, and the
establishment of a state government.
Appendix 24
It has failed and refused to secure, on a firm basis, the

right of trial by jury, that palladium of civil liberty, and only
safe guarantee for the life, liberty, and property of the
citizen.
It has failed to establish any public system of education,
although possessed of almost boundless resources, (the
public domain,) and although it is an axiom in political
science, that unless a people are educated and
enlightened, it is idle to expect the continuance of civil
liberty, or the capacity for self government.
It has suffered the military commandants, stationed
among us, to exercise arbitrary acts of oppression and
tyrrany, thus trampling upon the most sacred rights of the
citizens, and rendering the military superior to the civil
power.
It has dissolved, by force of arms, the state Congress of
Coahuila and Texas, and obliged our representatives to
fly for their lives from the seat of government, thus
depriving us of the fundamental political right of
representation.
It has demanded the surrender of a number of our
citizens, and ordered military detachments to seize and
carry them into the Interior for trial, in contempt of the
civil authorities, and in defiance of the laws and the
constitution.
It has made piratical attacks upon our commerce, by
Appendix 24
commissioning foreign desperadoes, and authorizing

them to seize our vessels, and convey the property of our
citizens to far distant ports for confiscation.
It denies us the right of worshipping the Almighty
according to the dictates of our own conscience, by the
support of a national religion, calculated to promote the
temporal interest of its human functionaries, rather than
the glory of the true and living God.
It has demanded us to deliver up our arms, which are
essential to our defence, the rightful property of freemen,
and formidable only to tyrannical governments.
It has invaded our country both by sea and by land, with
intent to lay waste our territory, and drive us from our
homes; and has now a large mercenary army advancing,
to carry on against us a war of extermination.
It has, through its emissaries, incited the merciless
savage, with the tomahawk and scalping knife, to
massacre the inhabitants of our defenseless frontiers.
It hath been, during the whole time of our connection with
it, the contemptible sport and victim of successive military
revolutions, and hath continually exhibited every
characteristic of a weak, corrupt, and tyrranical
government.
These, and other grievances, were patiently borne by the
people of Texas, untill they reached that point at which
forbearance ceases to be a virtue. We then took up arms
Appendix 24
in defence of the national constitution. We appealed to

our Mexican brethren for assistance. Our appeal has
been made in vain. Though months have elapsed, no
sympathetic response has yet been heard from the
Interior. We are, therefore, forced to the melancholy
conclusion, that the Mexican people have acquiesced in
the destruction of their liberty, and the substitution therfor
of a military government; that they are unfit to be free,
and incapable of self government.
The necessity of self-preservation, therefore, now
decrees our eternal political separation.
We, therefore, the delegates with plenary powers of the
people of Texas, in solemn convention assembled,
appealing to a candid world for the necessities of our
condition, do hereby resolve and declare, that our
political connection with the Mexican nation has forever
ended, and that the people of Texas do now constitute a
free, Sovereign, and independent republic, and are fully
invested with all the rights and attributes which properly
belong to independent nations; and, conscious of the
rectitude of our intentions, we fearlessly and confidently
commit the issue to the decision of the Supreme arbiter
of the destinies of nations.
Richard Ellis, President
of the Convention and Delegate
from Red River.
Charles B. Stewart
Tho. Barnett
John S. D. Byrom
Appendix 24
James Collinsworth
Edwin Waller
Asa Brigham
Francis Ruis
J. Antonio Navarro
Jesse B. Badgett
Wm D. Lacy
William Menifee
Jn. Fisher
Matthew Caldwell
William Motley
Lorenzo de Zavala
Stephen H. Everett
George W. Smyth
Elijah Stapp
Claiborne West
Wm. B. Scates
M. B. Menard
A. B. Hardin
J. W. Burton
Thos. J. Gazley
R. M. Coleman
Sterling C. Robertson
Geo. C. Childress
Bailey Hardeman
Rob. Potter
Thomas Jefferson Rusk
Chas. S. Taylor
John S. Roberts
Robert Hamilton
Collin McKinney
Albert H. Latimer
James Power
Sam Houston
David Thomas
Edwd. Conrad
Martin Palmer
Edwin O. Legrand
Stephen W. Blount
Jms. Gaines
Wm. Clark, Jr.
Sydney O. Pennington
Wm. Carrol Crawford
Jno. Turner
Benj. Briggs Goodrich

G. W. Barnett
James G. Swisher
Jesse Grimes
S. Rhoads Fisher
John W. Moore
John W. Bower
Saml. A. Maverick (from Bejar)
Sam P. Carson
A. Briscoe
J. B. Woods
H. S. Kimble, Secretary
Appendix 24
5/11/2015
AgerequirementsonGoogleAccounts-AccountsHelp
Accounts Help
ACCOUNTS
Age requirements on Google Accounts

Below are the minimum age requirements to own a Google Account:
United States: 13 or older

Spain: 14 or older
South Korea: 14 or older
Netherlands: 16 or older
All other countries: 13 or older
Google Accounts is a unified sign-in system that gives you access to products like Google+, Gmail, YouTube,
and more. Learn more about Google Accounts .
Accounts in Apps for Education
domains may have different age requirements.
Product-specific age requirements

Some Google products have specific age requirements. Here are a few examples:
YouTube: When a YouTube video has been age-restricted, a warning screen is displayed and only users
who are 18 or older can watch it. Learn more about age-restricted videos
Google Wallet: 18+
AdSense: 18+
AdWords: 18+
Disabled account due to incorrect birth date

In Google+ and other Google products, if you enter a birth date indicating you are not old enough to have a
Google Account, your account may be disabled. If you incorrectly entered your birthdate, learn how to reenable your Google Account .
Share this:
Kaley is on the Accounts support team and author of this help page. Please leave suggestions below on how
to improve her article.
How helpful is this article:

https://support.google.com/accounts/answer/1350409?hl=en
Appendix 25
1/2
5/11/2015
AgerequirementsonGoogleAccounts-AccountsHelp
Not at all helpful

Not very helpful
Somewhat helpful
Very helpful
Extremely helpful
Get started with Google Accounts

Cost
Using Gmail
Age requirements on Google
Accounts
Frequently Asked Questions about
creating a Google Account
Frequently Asked Questions about
Google Account and Age
Requirements
2015 Google - Privacy Policy - Terms of Service English
https://support.google.com/accounts/answer/1350409?hl=en
Appendix 25
2/2
AUSTIN INDEPENDENT SCHOOL DISTRICT:

INEQUITABLE FUNDING AND VESTIGES OF SEGREGATION
-----------------------------------------------------WHY SOME AUSTIN SCHOOLS HAVE MORE MONEY AND BETTER EDUCATIONAL
OPPORTUNITIES THAN LOW-INCOME AND MINORITY SCHOOLS
A HUMAN RIGHTS REPORT OF THE TEXAS CIVIL RIGHTS PROJECT

September 2012
TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive
Austin, TX 78741-3438
512-474-5073 (telephone)
512-474-0726 (fax)
web: TexasCivilRightsProject.org
The Texas Civil Rights Project, a nonprofit foundation, promotes civil rights
and economic and racial justice throughout Texas.
Appendix 26
CREDITS AND ACKNOWLEDGEMENTS

This human rights report rests of the hard work of many people, some of them volunteers. We
give each and all credit and thanks for their dedicated, hard work.
TCRP staff attorney Joseph Berra doggedly and adroitly helped coordinate and shepherd this
report from the beginning through many different facets and incarnations. Abby Frank, another TCRP
attorney, and staff assistant Andrs Martnez played key roles in coordinating the production of this
report.
Others, who contributed their time and talent, without which we could not have done this report
and for which we are grateful, include, in alphabetical order:
Anna Blizzard
Carolyn Cadena
Travis Cox
Mary Kate Earnest
Emily Gerrick
Amanda Hill
Anne Marie Huff
Patricia Kelly
Roswill Mejia
Steven Miller
Tim Neal
James Nortey
Yesero Olowo-Okello
Julie Patel
Hillary Sanchez
Lindsey Smith
Walter Simons
Yen Tran
Marguerite Vichier-Guerre
Jefferson Yi
Alexandra Young
Jeffrey Zerda
We are also appreciative of the many people, inside and outside AISD, with knowledge of matters in
this report, who spoke to us candidly off the record, out of need to do so.
James C. Harrington
Director
Appendix 26
AUSTIN INDEPENDENT SCHOOL DISTRICT:

INEQUITABLE FUNDING AND VESTIGES OF SEGREGATION
-----------------------------------------------------WHY SOME AUSTIN SCHOOLS HAVE MORE MONEY AND BETTER EDUCATIONAL
OPPORTUNITIES THAN LOW-INCOME AND MINORITY SCHOOLS
A HUMAN RIGHTS REPORT OF THE TEXAS CIVIL RIGHTS PROJECT

September 2012

Austin, TX 78741-3438
512-474-5073 (telephone)
512-474-0726 (fax)
web: TexasCivilRightsProject.org
The Texas Civil Rights Project, a nonprofit foundation, promotes civil rights
and economic and racial justice throughout Texas.
Appendix 26
Appendix 26
TABLE OF CONTENTS
I.
INTRODUCTION: AISD SCHOOLS, SEPARATE AND UNEQUAL................................................1

A. SEVERE EDUCATIONAL INEQUITY AMONG AISD SCHOOLS...........................................................1
B. BUILDING EQUITY ON THE GROUND IN AISD SCHOOLS.................................................................2
C. THE TITLE I MYTH...........................................................................................................................3
D. EDUCATION MATTERS FOR THE COMMUNITY: ECONOMICALLY AND ETHICALLY.........................5
APPENDIX I-A: POPULATION STATISTICS OF AISD SCHOOLS BY PERCENT ECONOMICALLY
DISADVANTAGED...........................................................................................................................9
APPENDIX I-B: POPULATION STATISTICS OF AISD SCHOOLS (ALPHABETICAL BY LEVEL)..............15
II. REPORT SUMMARY: FINDINGS AND RECOMMENDATIONS...................................................21

A. FINDINGS: SEVERE INEQUITIES EXIST AMONG POORER AND WEALTHIER AISD SCHOOLS........21
B. REMEDIES TO REDRESS DISPARITIES AND CREATE PRIVATE RESOURCE EQUITY.......................22
1. Creating a District-Wide Foundation and an Endowment to Fund Programs for LowEquity Schools
2. Creating the position of Development Director in Each Low-Equity School
3. Partnering Schools for Better Resource Sharing
4. Better Distribution of Activity Funds and Monies Obtained from District Property Use
5. Community Organizers for Low-Equity Schools
6. Enlisting UT to Assist Low-Equity Schools: Teacher Training and Research, Mentoring
and Tutoring, Expanded Volunteer Programs (Extracurricular Activities and Sports
7. Curriculum-Based Technology Task Force for Low-Equity Schools
8. Commitment by Austin Businesses and Local Foundations to Prioritize Low-Equity Schools
9. Capping Central Administrative Costs and Salaries
10. Better Public/Private Resource Equity Utilization
a. Zero-based budgeting with equitable compensation for low-equity schools.
b. Revised weighted formula for intra-District funding.
c. Expansion of the REACH program and teacher incentives for high-needs schools
III. PUBLIC FUNDING OF ELEMENTARY AND SECONDARY EDUCATION:
TEXAS AND AISD..............................................................................................................................27
A. TEXAS PUBLIC SCHOOL FINANCE.................................................................................................27
1. Brief History of Texas School Finance Litigation: Still a Gordian Knot
2. The Legislatures Piecemeal Approach Leaves Inequity in Place
3. Synopsis of Structural Inequities in the State Funding Formula
B. SUPPLEMENTAL FEDERAL FUNDING.............................................................................................30
C. PUBLIC FUNDING: AUSTIN INDEPENDENT SCHOOL DISTRICT......................................................30
1. Distributions to AISD
2. AISDs Supplemental Federal Funding
Appendix 26
3. AISD Distributions to the Schools

4. Alternative Solutions
D. SUMMARY......................................................................................................................................36
APPENDIX III: HISTORY AND SUMMARY OF TEXAS SCHOOL FINANCE LITIGATION.........................39
IV. PRIVATE FUNDING OF SOME AISD SCHOOLS CREATES SIGNIFICANT AND
SUBSTANTIAL INEQUALITY WITH OTHER AISD SCHOOLS...................................................43
A. SOURCES AND CHALLENGES OF PRIVATE SUBSIDIZATION...........................................................43
B. HOW PRIVATE SUBSIDIZATION CREATES AND PERPETUATES A CHASM OF EDUCATIONAL
OPPORTUNITY INEQUALITY IN AISD............................................................................................44
1. Private Subsidy Funds (PSF) Per Student Per Year (Elementary Schools)
2. Private Subsidy Funds (PSF) Plus Documented PTA Revenues,Per Student Per Year
(Elementary Schools)
3. Private Subsidy Funds (PSF) Per Student Per Year (All Schools)
4. Private Subsidy Funds (PSF) Per Student,Compared to Percentage of Minority Students
5. Private Subsidy Funds (PSF) Per Student,Compared to Percentage of Economically
Disadvantaged Students
6. Private Subsidy Funds (PSF) Per Student, Compared to Percentage of At-Risk Students
7. Private Subsidy Funds (PSF) and College Readiness
8. Private Subsidy Funds (PSF) and Drop-out Rate
9. AISD Middle Schools and High Schools: Private Subsidy Funds (PSF) by percentage of
yes responses to the 2010 Student Climate Survey question I will go to college
C. THE ENRICHMENT MYTH.........................................................................................................55
D. HOW PRIVATE SUBSIDIZATION LEADS TO BETTER OUTCOMES FOR SOME STUDENTS................57
E. WHAT PRIVATE SUBSIDY FUNDS BUY IN AISD SCHOOLS: SPECIFIC SCHOOL ACTIVITY LEDGER
COMPARISONS...............................................................................................................................58
1. Elementary Schools: Inequity Begins Early On in Education
a. After School Program
b. Student Retreats
2. Middle Schools: The Inequity Continues
After-School Programs
3. High Schools: More Inequity
a. Academics, Arts, and Athletics
APPENDIX IV: ADDITIONAL CHARTS AND GRAPHS........................................................................73
V.
REDRESSING DISPARITIES AND LACK OF EQUITY IN AISD:

REMEDIES AND RECOMMENDATIONS...........................................................................83
A. BUILDING THE EDUCATIONAL ENVIRONMENT THROUGH PRIVATE RESOURCE EQUITY..............83
1. Creating a District-Wide Foundation and an Endowment to Fund Programs for LowEquity Schools
Appendix 26

6. Enlisting UT to Assist Low-Equity Schools: Teacher Training and Research, Mentoring
and Tutoring, Expanded Volunteer Programs (Extracurricular Activities and Sports
8. Commitment by Austin Businesses and Local Foundations to Prioritize Low-Equity
Schools
a. Zero-based budgeting with equitable compensation for low-equity schools.
b. Revised weighted formula for intra-District funding.
c. Expansion of the REACH program and teacher incentives for high-needs schools
B. STATE EDUCATIONAL FUNDING: AISD, FRIEND OR FOE?............................................................87
C. ALIGNING WITH PROPERTY-POOR DISTRICTS: THE BETTER COURSE FOR AISD.........................88
D. THE PITFALLS OF FREE-MARKET REMEDIES................................................................................88
APPENDIX V-A: ALL HANDS RAISED FOUNDATION -- PORTLANDS SCHOOLS FOUNDATION..........91
VI. METHODOLOGY..............................................................................................................................101
A. ACTIVITY LEDGERS AND DEMOGRAPHIC DATA.........................................................................101
B. PTA DATA AND ACCOUNTS........................................................................................................101
C. INTERVIEWS.................................................................................................................................102
D. STATISTICAL REGRESSION..........................................................................................................103
E. COMPLICATIONS AND OBSTACLES..............................................................................................103
F. PUBLIC FUNDING EXCEL METHODOLOGY..................................................................................105
G. COMPLICATIONS AND OBSTACLES..............................................................................................106
Appendix 26
It is no secret in the Austin Independent

School District that schools in some parts of town
have significantly better education programs and
resources than those in other parts of town. The
schools are dramatically different from each other,
both in quality of facilities and in quality of
education. The campuses are easily discernible
(and predictable) in terms of the affluence (and
often race) of the communities in which they are
located.
Though this lack of parity in facilities and
opportunity is widely known, there is little
discussion about it, and no attempt to remedy it.
Thus it is that economically-disadvantaged
children, who are often minority students, already
one step behind their colleagues across town,
cannot help but fall further behind, year after year,
in their academic progress. Their educational
journey should prepare them for life in the
American democracy and in our local communities,
but AISD does not prepare them as well as it could,
or should.
One reason for this inequitable and unfair
situation is that AISD allows and supports the
private subsidization of higher-income (or higherequity) schools, sometimes by as much as
$1,000/student more than the amount of funds that
support students in lower-income (or lowerequity) schools. It is no wonder with this grossly
unfair private subsidy that higher-income and
higher-equity schools offer their students expanded
educational opportunities that poorer students do
not have. AISD allows this to happen, and winks
its eye at it.
Appendix 26
I. INTRODUCTION: AISD SCHOOLS, SEPARATE AND UNEQUAL

A. SEVERE EDUCATIONAL INEQUITY AMONG AISD SCHOOLS
It is no secret in the Austin Independent School District that schools in some parts of town have
significantly better education programs and resources than those in other parts of town. The schools are
dramatically different from each other, both in quality of facilities and in quality of education. The
campuses are easily discernible (and predictable) in terms of the affluence (and often race) of the
communities in which they are located.
Though this lack of parity in facilities and opportunity is widely known, there is little discussion
about it, and no attempt to remedy it. Thus it is that economically-disadvantaged children, who are often
minority students, already one step behind their colleagues across town, cannot help but fall further
behind, year after year, in their academic progress. Their educational journey should prepare them for life
in the American democracy and in our local communities, but AISD does not prepare them as well as it
could, or should.
One reason for this inequitable and unfair situation is that AISD allows and supports the private
subsidization of higher-income (or higher-equity) schools, sometimes by as much as $1,000/student
more than the amount of funds that support students in lower-income (or lower-equity) schools. It is no
wonder with this grossly unfair private subsidy that higher-income and higher-equity schools offer their
students expanded educational opportunities that poorer students do not have. AISD allows this to
happen, and winks its eye at it.
AISD further exacerbates these educational disparities in its own distribution of taxpayer money
from the State of Texas. Though AISD receives extra money from the state due to the high number of
children in the District who come from economically-disadvantaged families or who have limited English
proficiency, it only makes a weak effort to ensure that this supplemental money reaches the students who
are supposed to benefit from it.
AISD actually uses special categorical funding for positions at poorer schools and then diverts
what would be regular funding throughout the District so that, in reality, all the schools have about the
same funding level per student, absent private subsidization. The greater cost of educating higher-needs
students is therefore not reflected in the distribution of state and local funds, even though additional funds
are provided for those students. This measure of input equity is never realized.
Not only that, AISD perpetrates a deceptive narrative throughout the community, that more funds
are actually provided to poorer schools because of federal government assistance and thus private funds
must make up the difference for higher-equity schools.
That is not, and has never been, true. Federal funds are targeted for special programs, remedial in
nature, designed to close the achievement gap between demographic groups. They do not provide the
same benefits provided by private subsidization. They are designed to supplement needy students
education and put them on a level playing field.
It is therefore unfair to point to federal funds as a way to justify the inequity of private
subsidization and the failure to adequately fund lower-equity schools with state and local funds. Instead
of leveling the playing field, AISD keeps it tilted against the poorer and lower-equity students.
In sum, funds that should be flowing to poorer students are not. What this means, bizarrely
enough, is that poorer students are subsidizing the salaries of the Districts administrative staff, as well as
subsidizing higher-equity schools, without a comparable gain for lower-equity schools.
It is a veritable double whammy: lower-equity schools do not receive directly all the funds they
should receive and need; and higher-equity schools raise substantial private funds to enhance their
educational opportunities, to the detriment of the poorer schools.
Appendix 26
This report seeks to puncture the deplorable silence around this unfair reality and call the people
of Austin to task, to pay attention to, and correct, this structured inequality. This report also shines the
light on AISDs complicity in this inequitable state of affairs and calls out the superintendent and her
staff, who perpetuate this systemic scheme.
Hopefully, this appeal to accountability will resonate and avoid the need for litigation,1 which
would distract the District and divert funds, for which there is other need. But that decision rests with
AISD and people in the District.
At the end of the day, private funding in the relatively economically advantaged schools skews
the system, creates inequality, and works to the detriment of poor children and those whose families and
neighbors have fewer financial resources.2
AISD is wholly complicit with this structured inequality, and fully aware of the discrimination
caused by private subsidization of schools. AISD not only tolerates it, but buries its organizational head in
the sand.
Finally, one should underline the lack of transparency in AISDs administration and allocation of
funding, which became evident in the preparation of this report. It is not necessarily that AISD
deliberately withholds information, but that it is utterly decentralized and sometimes unfathomable, even
to administrative and supervisory staff within the District. Nor does the District maintain central records
of the amount of private funds raised for, and spent by, a school campus.
Even more problematic, school campuses keep scattered records and use non-standardized
individual accounting methods. School PTAs, typically incorporated as IRS 501(c)(3) not-for-profit
entities, maintain their own records, which are not shared with, or recorded by, the individual schools or
the District.
Whether intentional or happily ignorant, the result is a lack of transparency.
B. BUILDING EQUITY ON THE GROUND IN AISD SCHOOLS
Austin ISDs diverse student body reflects the growing diversity of Austin itself, as well as the
challenges of a large, urban school district. The student body is majority minority, with substantial
percentages of higher-needs students, as indicated by the following chart:
Austin ISD Basic Data, 2011-20123
Students
African American
Asian
Hispanic
Native American
White
Other
TOTAL
1
Total
7,878
2,865
52,440
234
21,181
2,099
Percentage
9.1%
3.3%
60.5%
0.3%
24.4%
2.4%
86,697
100.0%
Suit was recently filed against Clint ISD regarding its unequal distribution of funds per student among different
high school and junior high campuses within the district, alleging state constitutional violations. Sonia Herrera
Marquez, et al. v. Clint Indep. School Dist., No. 2012DCV055582 (El Paso County Dist. Ct., 205 th Dist.).
2
The issue of private subsidization creating unequal intra-district education opportunities is a nationwide
problem. See, e.g., Kyle Spencer, Way Beyond Bake Sales: The $1 Million PTA, New York Times (June 1, 2012),
http://www.nytimes.com/2012/06/03/nyregion/at-wealthy-schools-ptas-help-fill-budget-holes.html?pagewanted=all.
This is also discussed in the remedies section of this report with regard to school districts in Portland, Oregon and
Oakland and Malibu, California.
3
AISD website at http://archive.austinisd.org/inside/docs/AISD_Basic_DataV3.pdf. This report uses the most
current data available at the time the writing process began. Sometimes, the data is for the current school year;
sometimes, it is from somewhat further back in time. However, even though current data might change a bit from
that of previous years, we are confident that it remains consistent with the overall conclusions of this report.
Appendix 26
Economically-Disadvantaged
Limited English Proficiency
Special Education
= 63.7%
= 27.4%
= 10.0%
The demographics of individual schools, however, are terribly skewed and segregated when
compared to AISDs demographics as a whole. Out of nearly 100 elementary and middle school
campuses, 39 schools have student populations that fit a common profile of at least 90% minority, 90%
economically-disadvantaged, and 40% limited English proficient (LEP). See Appendices I-A, I-B. These
schools with a greater concentration of higher-needs children and minority populations must be the focus
of efforts to achieve equity in AISD.
These high numbers of minority, economically-disadvantaged, and limited English proficient
students undermine AISDs even modest attempts to address these social inequities through limited bilingual or at-risk student programs, or through supplemental federal funds (most notably, Title I).
There is a minimum threshold that dictates federal funding eligibility for economicallydisadvantaged students (that is, school campuses where 40% of students are economicallydisadvantaged). However, AISD should further prioritize schools where the economically-disadvantaged
students comprise more than 90% of the campus, as this indicates a qualitative and quantitative leap in the
challenges facing a school in which nearly all students are economically-disadvantaged, and often from
minority communities.
Once we acknowledge this undeniable, de facto segregation of AISD schools and its impact on
student outcomes, we can begin to build a more equitable system. The local school is the unit upon which
to build District-wide equity, and we must begin building that equity in schools educating children who
overwhelmingly have the highest needs and are at greatest risk.
Our report focuses on elementary and middle schools with more than 90% economicallydisadvantaged students and on high schools with more than 80% economically-disadvantaged students.
These schools 50 elementary and middle schools and 4 high schools also have predominately
minority youth and the highest percentages of limited English proficient students. See Appendix I-A.4
Almost all these elementary and middle schools (35 of 50) are part of the school clusters within
the attendance zones of the four high schools represented: Eastside Memorial, Reagan, Lanier, and LBJ.
Similarly, almost all the schools in these attendance zones, including high schools, fall within criteria
defining high-percentage high-needs schools (39 of 40).5 This means the segregation is also, to a large
extent, geographical.
Obviously, the earlier the intervention and assistance for students, meaning elementary school,
the better the chances of helping them level out to where they should be in school and enhancing future
educational opportunity and achievement for them and lowering their dropout rate. This, in turn,
benefits them and the larger community.
C. THE TITLE I MYTH
Throughout the course of our research for this report, various myths regarding funding inequities
in AISD surfaced, but the most perplexing and distressing one involved Title I funds.
Data concerning the schools respective attendance and percentage of students who are minority, Limited
English Proficiency, economically-disadvantaged or at-risk organized by school can be found in Appendix I-B.
5
The criteria for high-percentage high-needs school is defined here as 90% economically-disadvantaged, 90%
minority, and 40% Limited English Proficiency. The only school in the four attendance zones that does not meet that
standard is Kealing Middle School, a magnet school. Kealing is 43.9% economically-disadvantaged, 6.6% Limited
English Proficiency, and 61.7% minority. It draws from five elementary schools, two of which (Blackshear and Oak
Springs) ultimately feed into Eastside High and are high-percentage higher-needs, as defined in this report. The
other three elementary schools Kealing draws from (Campbell, Lee and Maplewood) ultimately feed into McCallum
High. None of these three elementary schools are high-percentage, higher-needs, as defined in this report.
Appendix 26
The mistaken belief exists among parents and administrators at wealthier, higher-equity schools
that their schools are at a disadvantage because they do not receive Title I funds from the federal
government. Therefore, they come to see private funds as a way to level the playing field with the
poorer schools that have Title I federal assistance.
This mindset was evident in an interview with a high school PTA president, who commented, In
the low-income schools, they get title money. We dont; we need to make up the title money gap. Its not
like we have more money; they have more dollars, even with our private funding.6
First, it is simply not true that higher-equity schools, after private subsidization, end up with
fewer dollars than poorer schools or even the same amount of dollars. This report dramatically belies the
truth of that quite erroneous assertion. Higher-equity schools have significantly higher funding through
private subsidization.
Secondly, this misleading narrative regarding private resources and compensatory funding
exhibits itself in the discourse among District staff. Administrators at both poorer and more affluent
schools incomprehensibly fail to recognize disparities in private resource funding as an equity issue. They
often subscribe to the fallacy that private resources balance out or are balanced by Title I funds at
schools with a high percentage of economically-disadvantaged students. This is nave and erroneous, and
ultimately harmful to students in lower-equity schools since it undercuts any momentum to make funding
more equitable in those schools.
Title I funding is not intended to balance and much less justify inequities in private resource
access. Title Is purpose is to level the playing field to some extent for the greater cost involved in
educating higher-needs children, whether for reasons of economics, language skill, etc. Title I is intended
to supplement schools that educate a high percentage of economically-disadvantaged children, not
compensate them for, or balance out private income resources for, well-off schools.
In other words, federal funding attempts to raise the level of disadvantaged students to get them
closer to being on par, opportunity-wise, with students from higher-equity homes. Federal funds are
intended to compensate for the disadvantages that already exist within low-income schools. A recent
study reported that, Economically disadvantaged children require 20% to 40% more funds per student
than more advantaged students in order for them to be successful academically.7
There is no honest way to view private subsidization as leveling the playing field. To the
contrary, it does just the opposite it keeps the playing field tilted against students in poorer schools.
Indeed, many low-equity schools, even with Title I funding, lack the resources to provide basic
necessities, such as paper and pencils.8 How money is spent is equally as important as having access to
money itself.
We find the greatest returns in investment when money is spent toward quality teachers, small
class size, pre-kindergarten programs, interventions for struggling students, rigorous curriculum,
college/workforce readiness, and sufficient learning materials -- including technology.
6
Personal interview (2011). We conducted a large number of personal interviews for this report with teachers,
administrators, parents, and others. However, to protect their privacy and anonymity, we assured them this report
would not use their names. This was also necessary to prevent any adverse consequences or embarrassment for their
candor.
7
Bonnie A. Lesley, Money Does Matter!: Investing in Texas Children and our Future. Austin: Equity Center
(2005), at http://www.equitycenter.org/resources/reports/money-matters, p.30.
8
In fact, it is a back-to-school ritual for churches and non-profit groups to raise funds to buy school supplies for
students in the poorer schools. See, e.g., Juan Castillo, Manos de Cristo back-to-school drive needs help, Austin
American-Statesman (July 27, 2011), at http://www.statesman.com/blogs/content/sharedgen/blogs/austin/somosaustin/entries/2011/07/27/manos_de_cristo_backtoschool_d.html?cxntfid=blogs_somos_austin; Manos de
Cristo, at http://manosdecristo.org/2012BTSVolunteerOpportunities.html; St. James Neighbor 2 Neighbor, Norman
Elementary Back To School Supplies; 5th Annual Back to School Parade, http://backtoschoolparade.org/btsp/home/.
Appendix 26
An ancillary argument in this context points out that some economically-privileged schools
receive economically-disadvantaged transfer students. Those students are counted for Title I purposes in
their home attendance zone school under AISDs transfer policy, a policy with which we agree. The
argument suggests that better-off schools are shouldering an extra burden by accepting economicallydisadvantaged students, but not receiving Title I funding for them.
However, this attitude does not recognize that the Title I and intra-District transfer rules are to
ensure that resources do not flow to schools that do not have high percentages of higher-needs children,
and schools which in fact benefit from a more integrated demographic balance.
Similar to the demographics of the UT Elementary School charter in Austin, transfer students
typically tend to come from more well-established families and positive home environments. That a
parent of a transfer student is able to exercise the transfer option which involves research, advocacy,
commitment, and transporting the child to and from school -- is indicative of that students higher
likelihood of success.
Hence, the fact alone that they are economically-disadvantaged or minority students does not
always place them at the same level of risk in higher-equity schools. Indeed, transfer students leaving a
school in their attendance zone tends to weaken that school, given that such students and parents are
typically more motivated or supportive in terms of school programs and activities.
Nor do schools receiving transfer students approach anywhere near the same exceeding
percentage of higher-needs students as do poorer schools from which those students transfer. Schools in
zones with high percentages of higher-needs children are the intended beneficiaries of supplemental Title
I funds. The Districts way of counting students for Title I distribution is correct from an equity
standpoint, but the attitude within the District and the broader community lags in support.
This suspect attitude that receiving schools unfairly shoulder a burden of educating higher-needs
transfer children without extra resources is similar to AISDs attitude of entitlement for shouldering a
greater burden of higher-needs children while contributing to state equalization as a Chapter 41 district, as
discussed later in this report. District and community actors need to stop looking at equitable measures as
a handout to poor schools and a means to laud the sacrifice of rich schools and justify their private
resource equity as appropriate equalization for rich schools.
While no one actually uses those terms, the discourse belies these attitudes. These attitudes must
change to effectively promote equity within the District. AISD, as a privileged district, with privileged
schools and privileged members of the community, should fully embrace equitable measures where they
exist, rather than invert their logic and make them appear as a burden.
The inadequacy of available resources may help foment this narrow attitude. As state resources
are limited or cut back and the state funding system reaches the limits of its statutory capacity, all players
focus on their own constraints, limitations, and narrow interests sometimes looking for potential
scapegoats for their problems. Equitable measures should never be viewed as part of the problem in this
context, but part and parcel of the solution.
D. EDUCATION MATTERS FOR THE COMMUNITY: ECONOMICALLY AND ETHICALLY
This broken system has partially emerged from an us versus them mindset and a lost sense of
community. If we stopped looking at the mere effects of this system on us as individuals and started
looking at the broader scheme of reality, we would see the greater costs to the community of failing to
educate our children, as best we can.
Economists and others have calculated the significance, in terms of resources, of raising the bar
of academic achievement, which affects adult success. The level of ones education is directly correlated
to ones economic status, health and life expectancy. These economists have calculated the effect of
expenditures on resources as it relates to academic achievement and life earnings and have concluded that
there are substantial returns on investment.
Appendix 26
The Schott Foundation for Public Education calculated the annual cost to Texans for our current
failing education system to be $6.8 billion. This number includes the lost earnings of dropouts, losses in
healthcare costs, crime-related losses, and reductions in taxes paid every year.9
The Alliance for Excellent Education conducted a study in 2009 on the benefits of cutting school
dropout rates in half. The study calculated the millions of dollars that graduates saved in increased
earnings in an average year versus those students who dropped out of school, measuring: the increased
amount that graduates could earn, spend and invest in an average year: additional home and automobile
sales; the number of new jobs that would be created; the increased amount of Gross Regional Product
(GRP) by mid-career; the additional amount of taxes paid in an average year; and, increased percentage of
students continuing in post-secondary education.10
As income levels increase, so do taxes and additional spending that funnels into the system and
boosts the economy. A rise in jobs also helps the wealth of the community flourish. H.M. Levin
calculated in The Social Costs of Inadequate Education that the country loses $192 billion, 1.6% of
GDP, in combined income and tax revenue with each cohort of 18-year-olds who never complete high
school.11 Evidence confirms that dropouts are in need of more social services than citizens that have
attained higher levels of education; and numerous studies have revealed that the higher the level
education in population, the more taxpayers save on money otherwise expended for social services.
In Facts for Education Advocates: The Economic Impact of Education, the College Board
determined that:
A high school graduate lives nine years longer than a dropout and is less likely to
suffer from cardiovascular disease, cancer, lung disease, diabetes, and infection.
Individuals with a higher education level are far less likely to participate in
government-funded social programs, like Medicaid and food stamps.
Arrested or incarcerated persons are less likely to have completed high school.
Approximately 75% of state prison inmates, 59% of federal inmates, and 69% of jail
inmates did not complete high school.
In terms of reducing policing, government programs to combat crime, state-funded
victim costs, trials, sentencing and incarceration, the average savings per high school
graduate would be $26,000/year.12
The positive effects on the economy are worth investing in, not just for our childrens future, but
the future of the community. Edward Zigler, the founder of the Center in Child Development and Social
Policy at Yale University, wrote, A society that neglects its children, its most valuable and vulnerable
resources, also neglects its future.13
Moreover, in a 2007 review of studies, economists found that quality teachers can increase
graduation rates and that the schools which pay higher salaries are more likely to have higher quality
teachers. Their research calculated the cost of raising teacher salaries by 10% and the cost of two-year
programs aimed at preventing potential dropouts, which equaled a total cost of $82,000/student. With
each graduate, the public benefit in taxes and social services savings would be $209,100. Therefore, the
Lesley, supra note 7, p.46.

The Economic Benefits from Halving the Dropout Rate: A Boom to Businesses in the Nations Largest
Metropolitan Areas, Alliance for Excellent Education (2010), at http://www.all4ed.org/files/EconBeneCityCardBooklet011210.pdf, p. 3.
11
Lesley, supra note 7, p.48 (citing to Henry M. Levin, The Social Costs of Inadequate Education, Summary, at
http://mea.org/tef/pdf/social_costs_of_inadequate.pdf).
12
Id. pp. 48-49 (citing to Facts for Education Advocates: The Economic Impact of Education. The College
Board (2008), at https://professionals.collegeboard.com/profdownload/Facts_For_Education_Advocates_Sept.pdf
13
Id. p.46.
10
Appendix 26
net value for each graduate would be $127,100.14 Bonnie Lesley also reports, Even using conservative
estimates, the benefits are 2.55 times greater than the costs. Rarely do expenditures reap such high returns
on investment-for the individual and for the state.15
Learning resources have considerable returns on investment. These resources raise academic
performance and graduation rates, increasing the lifetime earnings and societal contributions of our
children, thus reducing potential future costs of social services and incarceration.
As expectations and demands for higher education have heightened in the current economic
situation, these resources are needed more than ever. According to the Schott Foundation for Public
Education, 12% of the opportunity to-learn gap and the educational and economic effects is accounted
for by Texas. California and New York are the only states that account for a higher percentage.16
Thus, the returns on investment of supplying more learning resources for children early on are
evident. Regardless of whether we even have children or our children are in private, charter, or home
schools, providing a poor quality, low standard education for children equally affects us all individually,
as well as our community and posterity.
Quite apart from the pragmatic economic arguments, of course, there are substantial, fundamental
ethical and moral arguments, namely, that we want to be teaching our children to be concerned about the
wellbeing and welfare of other children specifically, and society generally, and that there is a fundamental
flaw in a democracy that proclaims a meritocracy but has the deck stacked against our most vulnerable
kids and people.
14
H.M. Levin & C.R. Belfield, Educational interventions to raise high school graduation rates, C.R. Belfield
& H.M. Levin (eds.), The Price We Pay: Economic and Social Consequences of Inadequate Education (pp. 177-99),
Washington, DC, Brookings Institution Press (2007).
15
Lesley, supra note 7, pp. 16-17.
16
Id. p.13 (citing to Executive Summary, Lost Opportunity: A 50 State Report On The Opportunity To Learn In
America. Schott Foundation for Public Education (2008), at http://www.otlstatereport.org/national/executivesummary).
Appendix 26
Once we acknowledge
this undeniable, de facto
segregation of AISD schools
and its impact on student
outcomes, we can begin to
build a more equitable system.
The local school is the unit
upon which to build Districtwide equity, and we must
begin building that equity in
schools educating children
who overwhelmingly have the
highest needs and are at
greatest risk.
The mistaken belief exists among parents and

administrators at wealthier, higher-equity schools that
their schools are at a disadvantage because they do
not receive Title I funds from the federal government.
Therefore, they come to see private funds as a way
to level the playing field with the poorer schools
that have Title I federal assistance.
First, it is simply not true that higher-equity
schools, after private subsidization, end up with fewer
dollars than poorer schools or even the same amount
of dollars. This report dramatically belies the truth of
that quite erroneous assertion. Higher-equity schools
have significantly higher funding through private
subsidization.
Appendix 26
APPENDIX I-A
POPULATION STATISTICS OF AISD SCHOOLS

BY PERCENT ECONOMICALLY DISADVANTAGED
Appendix 26
10
Appendix 26
11
School
Oak Springs Elementary
Pickle Elementary
Wooldridge Elementary
Linder Elementary
McBee Elementary
Wooten Elementary
Govalle Elementary
Barrington Elementary
Andrews Elementary
Sims Elementary
Harris Elementary
Rodriguez Elementary
Ortega Elementary
Pecan Springs Elementary
Webb Middle
Allan Academy
Brooke Elementary
Blackshear Elementary
Jordan Elementary
Pearce Middle School
Hart Elementary
Langford Elementary
Overton Elementary
Cook Elementary
Winn Elementary
Zavala Elementary
Dobie Middle
Houston Elementary
Norman Elementary
Garcia Middle
Metz Elementary
Allison Elementary
Brown Elementary
Martin Middle
Blanton Elementary
Reilly Elementary
Burnet Middle
Graham Elementary
Appendix 26
%
ED %
LEP % White
% Minority At-Risk %
09-10
09-10
09-10
09-10
09-10
99.0
23.1
2.0
98.0
55.8
98.5
72.7
1.5
98.5
82.7
98.3
80.6
1.6
98.4
87.9
98.1
61.7
1.8
98.2
73.4
98.1
68.5
2.0
98.0
79.9
98.1
72.9
2.1
97.9
83.4
98.0
37.3
2.2
97.8
58.0
97.8
70.2
1.4
98.6
78.7
97.6
65.7
1.9
98.1
80.4
97.5
34.4
0.3
99.7
53.8
97.4
68.4
1.9
98.1
77.7
97.3
60.1
0.9
99.1
74.2
97.2
41.9
0.7
99.3
56.7
97.1
36.5
1.3
98.7
54.1
97.0
47.6
2.3
97.7
77.8
96.9
55.2
0.8
99.2
71.4
96.9
33.1
5.3
94.7
53.1
96.7
42.7
0.8
99.2
61.0
96.5
57.8
1.1
98.9
69.6
96.3
41.1
1.1
98.9
79.9
96.2
73.4
1.4
98.6
81.2
96.2
60.9
3.3
96.7
77.3
96.2
51.3
0.3
99.7
63.7
96.1
64.2
4.2
95.8
78.6
96.1
48.9
2.0
98.0
66.4
96.1
39.4
1.5
98.5
59.0
96.0
43.4
3.7
96.3
74.4
96.0
60.0
2.9
97.1
70.7
95.9
27.1
1.6
98.4
47.1
95.5
31.7
1.2
98.8
77.6
95.3
56.2
1.8
98.2
69.0
95.1
44.4
1.7
98.3
67.3
95.0
66.7
3.8
96.2
77.3
94.8
25.4
0.7
99.3
72.5
94.8
62.7
2.9
97.1
73.4
94.7
57.2
7.2
92.8
67.8
94.5
43.3
5.2
94.8
76.3
94.5
56.7
4.6
95.4
64.1
12
St. Elmo Elementary

Sanchez Elementary
Mendez Middle
Campbell Elementary
Walnut Creek Elementary
Widen Elementary
Perez Elementary
Becker Elementary
Ridgetop Elementary
Dawson Elementary
Pleasant Hill Elementary
Galindo Elementary
Eastside Memorial Global Tech High
Odom Elementary
Reagan High
Eastside Memorial Green Tech High
Palm Elementary
Lanier High
Bedichek Middle
Sunset Valley Elementary
Joslin Elementary
L B Johnson High
Travis High
Williams Elementary
Paredes Middle
Travis Heights Elementary
Blazier Elementary
Fulmore Middle
Casey Elementary
Kocurek Elementary
Pillow Elementary
Maplewood Elementary
Cunningham Elementary
Covington Middle
Akins High
Crockett High
Lamar Middle
Boone Elementary
Brentwood Elementary
Mathews Elementary
Menchaca Elementary
Appendix 26
94.5
94.2
94.1
93.9
93.9
93.8
93.1
91.5
91.5
91.3
91.3
91.2
90.6
89.8
88.3
87.8
87.7
84.9
82.8
82.1
81.4
80.3
79.0
78.1
77.3
77.1
76.5
75.5
70.3
68.4
67.3
66.0
64.7
64.5
62.6
61.1
54.6
54.4
53.2
52.4
48.4
58.8
59.0
46.5
25.7
65.6
50.0
47.5
37.6
59.6
36.6
41.9
54.0
24.3
42.3
36.5
27.5
41.6
35.3
18.3
47.6
37.2
19.5
25.3
22.2
22.6
27.2
31.2
26.2
16.6
16.7
35.5
18.6
13.3
13.9
14.2
13.4
12.5
10.1
14.3
19.7
19.9
3.7
2.1
1.0
0.8
3.3
1.1
5.5
5.3
7.4
6.0
6.4
6.7
1.0
7.6
2.5
2.0
4.7
5.0
11.3
14.2
15.2
1.7
4.9
12.4
13.9
19.6
10.7
15.6
24.4
29.9
20.7
30.7
27.3
28.8
15.3
21.4
38.6
39.2
46.5
34.5
34.5
96.3
97.9
99.0
99.2
96.7
98.9
94.5
94.7
92.6
94.0
93.6
93.3
99.0
92.4
97.5
98.0
95.3
95.0
88.7
85.8
84.8
98.3
95.1
87.6
86.1
80.4
89.3
84.4
75.6
70.1
79.3
69.3
72.7
71.2
84.7
78.6
61.4
60.8
53.5
65.5
65.5
68.3
71.0
80.9
45.5
75.1
68.5
62.5
59.8
72.9
52.0
59.6
68.4
95.0
59.4
86.6
85.8
65.4
80.2
65.4
58.5
55.4
82.8
78.3
47.0
64.5
49.9
47.6
59.9
37.2
37.7
52.2
41.2
39.9
48.9
69.5
74.5
49.2
26.2
29.1
38.4
36.4
13
Kealing Middle
Summitt Elementary
Oak Hill Elementary
O. Henry Middle
McCallum High
Zilker Elementary
Austin High
Bailey Middle
Davis Elementary
Cowan Elementary
Small Middle
Pease Elementary
Patton Elementary
Murchison Middle
Anderson High
Hill Elementary
Doss Elementary
Barton Hills Elementary
Lee Elementary
Bowie High
Baranoff Elementary
Bryker Woods Elementary
Gullett Elementary
Mills Elementary
Highland Park Elementary
Gorzycki Middle
Kiker Elementary
Clayton Elementary
Casis Elementary
Appendix 26
43.9
43.5
40.2
38.9
38.7
37.3
35.7
30.8
29.6
29.0
28.5
27.5
27.3
23.8
21.8
14.3
14.1
13.1
12.9
12.7
11.9
11.8
9.3
7.9
7.7
6.1
5.2
4.9
3.8
6.6
34.9
22.9
8.2
6.5
9.6
6.0
4.5
15.9
7.8
5.7
2.8
13.6
8.1
6.8
9.3
14.7
0.8
2.9
1.2
7.0
3.3
0.6
9.3
4.1
1.7
7.1
7.8
3.2
38.3
38.7
57.0
47.9
46.3
58.8
45.6
45.1
54.2
48.9
55.8
27.1
54.6
61.7
59.9
68.7
69.3
74.4
60.8
58.4
57.5
72.0
81.4
62.0
79.0
68.8
72.0
71.0
81.6
61.7
61.3
43.0
52.1
53.7
41.2
54.4
54.9
45.8
51.1
44.2
72.9
45.4
38.3
40.1
31.3
30.7
25.6
39.2
41.6
42.5
28.0
18.6
38.0
21.0
31.2
28.0
29.0
18.4
28.6
45.6
37.2
36.1
52.7
23.8
48.4
31.4
27.7
20.2
29.3
20.3
27.3
27.2
36.3
19.1
21.1
9.9
13.2
33.9
17.6
16.3
9.7
17.7
12.6
17.7
17.6
15.4
11.2
14
Appendix 26
15
APPENDIX I-B
POPULATION STATISTICS OF AISD SCHOOLS

(ALPHABETICAL BY LEVEL)
Appendix 26
16
Appendix 26
17
High School
Enrollment
09-10
At-Risk %
09-10
ED %
09-10
LEP %
09-10
% White
09-10
% Minority
09-10
Akins High
2650
69.5
62.6
14.2
15.3
84.7
Anderson High
1984
36.3
21.8
6.8
59.9
40.1
Austin High
2350
48.4
35.7
6.0
45.6
54.4
Bowie High
Crockett High
2805
1732
33.9
74.5
12.7
61.1
1.2
13.4
58.4
21.4
41.6
78.6
Eastside Memorial Global Tech High
202
95.0
90.6
24.3
1.0
99.0
Eastside Memorial Green Tech High
443
85.8
87.8
27.5
2.0
98.0
1433
80.2
84.9
35.3
5.0
95.0
977
82.8
80.3
19.5
1.7
98.3
1751
52.7
38.7
6.5
46.3
53.7
Lanier High
L B Johnson High
McCallum High
Reagan High
866
86.6
88.3
36.5
2.5
97.5
Middle School
1332
Enrollment
09-10
78.3
At-Risk %
09-10
79.0
ED %
09-10
25.3
LEP %
09-10
4.9
% White
09-10
95.1
% Minority
09-10
Bailey Middle
956
31.4
30.8
4.5
45.1
54.9
1021
65.4
82.8
18.3
11.3
88.7
Burnet Middle
960
76.3
94.5
43.3
5.2
94.8
Covington Middle
951
48.9
64.5
13.9
28.8
71.2
Dobie Middle
597
74.4
96
43.4
3.7
96.3
1010
59.9
75.5
26.2
15.6
84.4
Garcia Middle
693
77.6
95.5
31.7
1.2
98.8
Gorzycki Middle
834
17.7
6.1
1.7
68.8
31.2
Kealing Middle
1240
28.6
43.9
6.6
38.3
61.7
Lamar Middle
663
49.2
54.6
12.5
38.6
61.4
Martin Middle
677
72.5
94.8
25.4
0.7
99.3
Mendez Middle
865
80.9
94.1
46.5
1.0
99.0
Murchison Middle
1244
27.2
23.8
8.1
61.7
38.3
O. Henry Middle
1004
36.1
38.9
8.2
47.9
52.1
Paredes Middle
889
64.5
77.3
22.6
13.9
86.1
Pearce Middle
457
79.9
96.3
41.1
1.1
98.9
Small Middle
949
29.3
28.5
5.7
55.8
44.2
Webb Middle
572
Enrollment
09-10
77.8
At-Risk %
09-10
97.0
ED %
09-10
47.6
LEP %
09-10
2.3
% White
09-10
97.7
% Minority
09-10
Allan Academy
388
71.4
96.9
55.2
0.8
99.2
Allison Elementary
529
67.3
95.1
44.4
1.7
98.3
Andrews Elementary
572
80.4
97.6
65.7
1.9
98.1
Baranoff Elementary
852
17.6
11.9
7.0
57.5
42.5
926
78.7
97.8
70.2
1.4
98.6
375
9.9
13.1
0.8
74.4
25.6
Travis High
Bedichek Middle
Fulmore Middle
Elementary School
Appendix 26
18
Becker Elementary
189
59.8
91.5
37.6
5.3
94.7
241
61.0
96.7
42.7
0.8
99.2
Blanton Elementary
560
73.4
94.8
62.7
2.9
97.1
Blazier Elementary
727
47.6
76.5
31.2
10.7
89.3
Boone Elementary
485
26.2
54.4
10.1
39.2
60.8
477
29.1
53.2
14.3
46.5
53.5
Brooke Elementary
414
53.1
96.9
33.1
5.3
94.7
Brown Elementary
502
77.3
95.0
66.7
3.8
96.2
400
16.3
11.8
3.3
72.0
28.0
Campbell Elementary
393
45.5
93.9
25.7
0.8
99.2
Casey Elementary
656
37.2
70.3
16.6
24.4
75.6
Casis Elementary
815
11.2
3.8
3.2
81.6
18.4
Clayton Elementary
970
15.4
4.9
7.8
71.0
29.0
Cook Elementary
900
78.6
96.1
64.2
4.2
95.8
Cowan Elementary
742
20.2
29
7.8
48.9
51.1
556
39.9
64.7
13.3
27.3
72.7
Davis Elementary
703
27.7
29.6
15.9
54.2
45.8
Dawson Elementary
333
52.0
91.3
36.6
6.0
94.0
Doss Elementary
721
21.1
14.1
14.7
69.3
30.7
Galindo Elementary
719
68.4
91.2
54
6.7
93.3
Govalle Elementary
402
58.0
98.0
37.3
2.2
97.8
Graham Elementary
658
64.1
94.5
56.7
4.6
95.4
Gullett Elementary
527
9.7
9.3
0.6
81.4
18.6
Harris Elementary
737
77.7
97.4
68.4
1.9
98.1
Hart Elementary
850
81.2
96.2
73.4
1.4
98.6
634
12.6
7.7
4.1
79.0
21.0
Hill Elementary
691
19.1
14.3
9.3
68.7
31.3
Houston Elementary
958
70.7
96.0
60.0
2.9
97.1
Jordan Elementary
810
69.6
96.5
57.8
1.1
98.9
Joslin Elementary
323
55.4
81.4
37.2
15.2
84.8
Kiker Elementary
907
17.6
5.2
7.1
72.0
28.0
Kocurek Elementary
639
37.7
68.4
16.7
29.9
70.1
Langford Elementary
843
77.3
96.2
60.9
3.3
96.7
Lee Elementary
441
13.2
12.9
2.9
60.8
39.2
Linder Elementary
836
73.4
98.1
61.7
1.8
98.2
420
41.2
66.0
18.6
30.7
69.3
Mathews Elementary
391
38.4
52.4
19.7
34.5
65.5
98.0
McBee Elementary
806
79.9
98.1
68.5
2.0
Menchaca Elementary
698
36.4
48.4
19.9
34.5
65.5
Metz Elementary
491
69.0
95.3
56.2
1.8
98.2
Mills Elementary
1097
17.7
7.9
9.3
62.0
38.0
Appendix 26
19
Norman Elementary
314
47.1
95.9
27.1
1.6
98.4
Oak Hill Elementary
993
37.2
40.2
22.9
57.0
43.0
303
55.8
99.0
23.1
2.0
98.0
Odom Elementary
688
59.4
89.8
42.3
7.6
92.4
Ortega Elementary
284
56.7
97.2
41.9
0.7
99.3
Overton Elementary
716
63.7
96.2
51.3
0.3
99.7
Palm Elementary
661
65.4
87.7
41.6
4.7
95.3
Patton Elementary
765
27.3
27.3
13.6
54.6
45.4
Pease Elementary
251
20.3
27.5
2.8
27.1
72.9
523
54.1
97.1
36.5
1.3
98.7
Perez Elementary
800
62.5
93.1
47.5
5.5
94.5
Pickle Elementary
722
82.7
98.5
72.7
1.5
98.5
Pillow Elementary
648
52.2
67.3
35.5
20.7
79.3
623
59.6
91.3
41.9
6.4
93.6
Reilly Elementary
304
67.8
94.7
57.2
7.2
92.8
Ridgetop Elementary
188
72.9
91.5
59.6
7.4
92.6
955
74.2
97.3
60.1
0.9
99.1
Sanchez Elementary
617
71.0
94.2
59.0
2.1
97.9
Sims Elementary
314
53.8
97.5
34.4
0.3
99.7
St. Elmo Elementary
347
68.3
94.5
58.8
3.7
96.3
Summitt Elementary
747
45.6
43.5
34.9
38.7
61.3
464
58.5
82.1
47.6
14.2
85.8
525
49.9
77.1
27.2
19.6
80.4
901
75.1
93.9
65.6
3.3
96.7
Widen Elementary
804
68.5
93.8
50.0
1.1
98.9
Williams Elementary
668
47.0
78.1
22.2
12.4
87.6
Winn Elementary
440
66.4
96.1
48.9
2.0
98.0
881
87.9
98.3
80.6
1.6
98.4
Wooten Elementary
682
83.4
98.1
72.9
2.1
97.9
Zavala Elementary
388
59.0
96.1
39.4
1.5
98.5
Zilker Elementary
520
23.8
37.3
9.6
58.8
41.2
Appendix 26
20
Appendix 26
21
II. REPORT SUMMARY: FINDINGS AND RECOMMENDATIONS

A. FINDINGS: SEVERE INEQUITIES EXIST AMONG POORER AND WEALTHIER AISD SCHOOLS
1. Subsidization of local schools by private funds creates a stark inequality across AISD schools
in terms of educational opportunity such that schools in poorer areas of the community have significantly
less educational opportunity than schools in more affluent areas of the community.
2. The significant advantage for schools with high private resource levels is their ability to create
a positive, creative, and individualized educational environment, with multiple opportunities and supports
to develop student potential. These include a wide array of offerings in the arts, athletics, field trips,
retreats, classroom aids, technology, volunteer teaching assistants, extracurricular clubs, and other
activities.
3. Private resources also provide extra support and incentives to teachers, and aid in the
recruitment and retention of high quality teachers, often drawing such teachers away from low-equity
schools.
4. These inputs directly affect student outcomes; and, where lacking, students are deprived of an
enriched environment conducive to success and learning.
5. While AISD argues that ultimately poorer schools receive more public supplemental funding,
there is evidence that, in fact, because the District distributes funding to schools based on staffing
formulas, rather than a schools number of high-needs students, some wealthier schools receive more
public money than poor schools with similar enrollment numbers.
6. Several elementary schools in AISD with a high percentage of economically-disadvantaged
students not only fail to receive additional public, supplemental funding, but actually receive less funding
than schools with a low percentage of these students. This disparity clearly defies the purpose of state
distributions to the District, based on weighted average daily attendance (WADA), by allowing schools
with a high percentage of economically-disadvantaged students to receive less funding, not more, than
wealthier schools of comparable size.
7. Even when public funds are properly distributed, however, private subsidy funds create a great
divide between more affluent, majority-white schools (West Austin, for example) and the poorer, at-risk,
largely Hispanic or black schools in other areas of the city.
8. This divide is similarly reflected in the achievement gap between economically-privileged and
economically-disadvantaged students, and between white and minority students.
9. The data on achievement gaps for minority and economically-disadvantaged students is
alarming, and the gap in private resource equity among schools is a significant factor in those outcomes.
10. In other words, the typical monitoring data show that minority, economically-disadvantaged,
and limited English proficient students underperform, as compared to students not in those categories.
11. In comparing resources available to schools segregated along these lines, there is a significant
disparity in the access to private resource equity.
12. Private resource equity is a significant factor for determining successful educational outcomes.
If a student attends a school with limited private resource equity, he or she is more likely to drop out.
13. Parents at poorer schools often work several jobs, and many lack English language skills.
These factors make parental organization and local fundraising problematic, if not next to impossible,
especially in economically-disadvantaged communities, which, by definition, lack sufficient private
resources.
Appendix 26
22
B. REMEDIES TO REDRESS DISPARITIES AND CREATE PRIVATE RESOURCE EQUITY

We challenge the community to achieve greater equity for poorer schools, and propose the
following ideas and initiatives, recognizing that some of them may require extended time and additional
or reallocated funds to implement:
1. Creating a District-Wide Foundation and an Endowment to Fund Programs for Low-Equity
Schools
Our first, and major, recommendation for addressing the inequities caused by private
subsidization is creating a foundation and an endowment to help fund programs and provide education
support for low-equity schools.
The problem of intra-District inequity is so grave that creative initiatives, like a special
foundation and an endowment, are necessary for helping make educational opportunities in low-equity
schools comparable to those in high-equity schools.
One way of funding such a foundation is through a tithing contribution on private fundraising at
higher-equity, more affluent school campuses. This would involve AISD as a whole. Other districts
nationwide have implemented a tithing system on private fundraising to achieve greater private resource
equity.
Portland, Oregon is the leading example, where each individual school foundation contributes
one-third of the funds it collects in excess of $10,000 to a district-wide Equity Fund. These funds are then
distributed to higher needs schools within the district, according to need.
Appendix II-A describes the Portland plan in detail.
AISD should implement a similar initiative, and the Austin Council of PTAs should embrace it.
The second part of this project would be creation of an endowment through contributions from
local philanthropists, businesses, the public, the City, municipal entities, and others, which the foundation
would administer.
2. Creating the Position of Development Director in Each Low-Equity School
AISD has an Office of Innovation and Development (OID). A review of its funding partners
reveals that most partners or foundations are supporting projects in predominantly low-income schools,
such as STEM programs (Science, Technology, Engineering and Math), the Social Emotional Learning
initiative (SEL), the Early College High School program, professional development programs, and some
support for technology and materials.
All are intended for the most part to address needs in low-income schools. However, the amount
of support and impact OID and its partners have had on sustaining significant private resource equity in
schools with the highest need is not evident. In fact, AISD data suggests it is insufficient to address the
structural inequity. OID also manages AISDs accountability for state and federal entitlement grants, a
task that no doubt takes up significant time and resources.
We recommend decentralization of OID, and that all the schools in the four vertical teams
identified as most lacking of private resource equity (Reagan, Lanier, LBJ, and Eastside Memorial) have
(or share) a full-time fundraising and development person on campus at each school who would help
prioritize efforts to grow and sustain private resource equity in those schools. Decentralization would
allow each schools fundraising and development person to engage with and be accountable to each
vertical team community. The individuals would work directly with principals and PTAs, as well as with
AISD teams seeking to address priorities and develop successful programs in those vertical team areas.
The individuals would engage the broader business, academic, and residential communities to
mobilize resources and volunteers. Most importantly, these decentralized positions would help ensure
that, in addition to targeted programs for higher-needs students, these students would have the same
beneficial educational environment enjoyed by their colleagues at high private resource schools, such as
Appendix 26
23
quality offerings in art, athletics, field trips, retreats, technology aids, extracurricular clubs, and other
activities.
We recommend that AISD promote the partnering of high-equity and low-equity schools to better
share resources across the District. Common fundraisers, the sharing of organizational capacity, advocacy
skills, community resources, and social networks are all ways in which private resource equity could be
employed across the District. This should be a particular mandate and mission of AISD.
Beyond joint fundraising and sharing equitable resources, partner schools also would participate
together in combined field trips, extracurricular activities, or other programs.
There are logistical issues involved, such as transportation from one school to another, to which
AISD would have to apply creative problem-solving.
High-equity schools derive significant private resource funding from AISD property or AISDsponsored activities, such as sporting events, vending machines, rental of school space, and even parking
spaces (which high-equity schools auction off to parents).
While we do not suggest redistributing all private resource equity generated at high-equity
schools, AISD should evenly redistribute monies generated through use of its property or sponsored
activities. For example, funds from sporting events should be pooled and distributed equitably within
AISD by its Excellence and Equity Foundation.
The District should re-direct its focus from top-down communications to ground-up community
organizing. AISD should decentralize and readjust staff placement so that low-equity schools would each
have (or share) a full-time community organizer on staff to mobilize and engage the community in
developing solutions to improve students quality of education with support from the District. Genuine
community organizing will lead to better participative methods in developing and implementing hands-on
strategies for improving low-equity schools.
6. Enlisting UT to Assist Low-Equity Schools: Teacher Training and Research, Mentoring and
Tutoring, Expanded Volunteer Programs (Extracurricular Activities and Sports
The University of Texas is an excellent resource that should be recruited as a partner in achieving
greater equity in AISD schools. UT benefits from the Austin community in myriad ways; and, in turn, it
can provide enormous in-kind human and social contributions. AISD already has a relationship with some
university members as consultants, and UT operates the UT Elementary School, a demonstration school.
Both AISD and UT should assess their relationship in terms of improving the educational environment in
AISD low-equity schools.
Two strong partnership areas would be teacher training and research. Teaching assistants, who
intern at UT Elementary, also could intern in low-equity public schools. UT likewise could provide
greater continuing training opportunities for District teachers in low-equity schools. AISD should
coordinate with the UT Department of Education to maximize UTs positive impact on increasing equity
in AISD. AISD should likewise promote UT research aligned with the goals of increasing opportunities
and performance in low-equity public schools.
There is no limit to harnessing the potential of UT students and faculty, from significantly more
organized and expanded volunteer mentoring and tutoring programs to sports activities, classroom
assistants, extracurricular clubs, language programs, and social work interns.
Just a few hundred organized volunteers from UTs 50,000+ students and 12,500 faculty and staff
is not unimaginable, indeed rather probable, and would have an enormous impact on Austins schools.
Appendix 26
24
Why AISD doesnt systematically tap into and organize this dynamic resource at all levels is
unfathomable, and probably even inexcusable. There is no shortage of dedicated volunteers at UT.
We recommend that AISD establish a separate technology task force for low-equity schools.
There should be a priority focused on ensuring that low-equity schools have optimum classroom
technology and innovative curricula which use that technology. The District should make all its partners
aware of this priority and challenge them to make it a reality. AISD needs to organize Austins famed
high-tech corridor to step up to this challenge.
As part of this priority, AISD should provide added support for website development for lowequity schools and internet access in the homes and communities they serve. One evident disparity in
private resource equity shows up on school websites across the District. High private resource schools
have substantially more developed websites.
Developing the websites of low-equity schools in a participatory way for parents and students,
and increasing their internet access also will enhance self-image and create a positive environment for
educational progress. It is also an essential tool for recruiting volunteers, fundraising, and communicating
with families.
Local businesses depend on, and benefit from, locally educated and self-sustainable communities.
While the Austin business community has made notable (and laudable) efforts to partner with AISD
toward greater equity, more partnering projects are desperately needed.
Moreover, social networking is a significant feature in high-equity schools that produces
substantial resources from the business community for those schools. Because of the lack of accounting
transparency for these resources and corporate giving, it is unclear how those amounts compare to grants
and contributions to low-equity schools, but the balance surely favors high-equity schools.
AISD must persuade the Austin business community to the goal of helping make low-equity
schools places where the educational environment is at its highest level. Businesses must become the
private boosters that these schools currently lack in resource equity.
AISD also must convince local foundations to reconsider where and how to make their grants in
light of school inequities.
Some examples of endeavors that foundations and Austin businesses can undertake include:
a. Student mentoring programs during/after school and evening student/parent mentoring
programs;
b. Partnering with particular schools;
c. Adopting curricular and extra-curricular activities and sustaining projects that improve the
educational environment; and,
d. Grounds and facility improvement
Businesses and corporate and private foundations should not only support public education but
align their goals with an explicit AISD plan to raise the educational environment in low-equity schools.
The more educated a community, the more it thrives economically and socially.
In order to cover some of the costs of these proposals, the District must cut back and cap central
administrative expenses and salaries, pegging them to a percentage of teachers salaries.
Appendix 26
25
The District must also significantly reduce the percentage of Title I funds that it siphons off as
administrative costs and re-locate Title I positions from central administration to school campuses
receiving Title I funds.
Finally, we recommend the following three specific steps that AISD can implement immediately:
a. Establish zero-based budgeting with equitable compensation for low-equity schools;
b. Implement a revised weighted formula for intra-District funding that follows the student,
not the staff; and,
c. Expand the REACH program and teacher incentives for high-needs schools.
The mission of the Texas Education Code is a

public education system that:
ensur[es] that all Texas children have access to
a quality education that enables them to achieve
their potential and fully participate now and in the
future in the social, economic, and educational
opportunities of our state and nation.
TEX. EDUC. CODE, 4.001(a).
Appendix 26
26
Subsidization of local schools by private funds

creates a stark inequality across AISD schools in terms
of educational opportunity such that schools in poorer
areas of the community have significantly less
educational opportunity than schools in more affluent
areas of the community.
The significant advantage for schools with high
private resource levels is their ability to create a
positive, creative, and individualized educational
environment, with multiple opportunities and supports
to develop student potential. These include a wide
array of offerings in the arts, athletics, field trips,
retreats, classroom aids, technology, volunteer teaching
assistants, extracurricular clubs, and other activities.
Private resources also provide extra support and
incentives to teachers, and aid in the recruitment and
retention of high quality teachers, often drawing such
teachers away from low-equity schools.
These inputs directly affect student outcomes;
and, where lacking, students are deprived of an
enriched environment conducive to success and
learning.
Appendix 26
27
III. PUBLIC FUNDING OF ELEMENTARY AND SECONDARY EDUCATION: TEXAS AND

AISD
Public elementary schools provide a critical foundation for the development and education of
Texas citizens. The quality of a childs elementary education will have a long-term impact on not only the
growth and advancement of that individual, but also on the entire community of which that child is a part
and of which he or she will become an adult member.
Although public financing of education in Texas is not the main focus of this report, an overview
of it is important to understand its interplay with the private subsidization of AISD schools, which creates
the inter-school gulf of inequity that this report targets.
This section discusses the Texas statewide school funding system. It describes the legal
imperative of equity in public school finance and the extent of any progress toward funding equity among
and within school districts.
This section also provides an overview of public education funding for AISD.
A. TEXAS PUBLIC SCHOOL FINANCE
Education plays a crucial role in the economic, political, and social fabric of our society. The
Texas Constitution recognizes the critical importance of education and establishes the duty of the state to
provide free public education:
A general diffusion of knowledge being essential to the preservation of the liberties
and rights of the people, it shall be the duty of the Legislature of the State to establish and
make suitable provision for the support and maintenance of an efficient system of public
free schools.1
Moreover, the mission of the Texas Education Code is a public education system that:
ensur[es] that all Texas children have access to a quality education that enables them
to achieve their potential and fully participate now and in the future in the social,
economic, and educational opportunities of our state and nation.2
Unfortunately, the patchwork structure of the Texas public school system does not provide equal
access to resources and hence equal opportunity to children across the state. Due to the wide variety of
property wealth among school districts, coupled with the fact that property taxes are the most common
way of financing a school district, a huge access-to-funding chasm exists between property-wealthy and
property-poor districts. The unequal distribution of property wealth across the state has led to disparities
in property wealth as great as 500 to 1 between property-wealthy and property-poor districts.
This disparity is problematic because a significant percentage of children within many districts do
not receive the adequate education guaranteed to them and deemed essential to their well-being by the
Texas Constitution.
To combat these severe inequities, individuals have turned to litigation and the legislature, with
mixed results.
1. Brief History of Texas School Finance Litigation: Still a Gordian Knot
Parents in property-poor school districts3 first challenged the inequities in the public school
finance system in the early 1970s in a federal court case, Rodrguez v. San Antonio Independent School
Tex. Const. art. VII, 1.

Tex. Educ. Code, 4.001(a).
3
Property poor districts by and large are overwhelmingly made up of the poor, who live in areas of low or
depressed property values. They are also referred to here as poor districts.
11
2
Appendix 26
28
District, arguing that the grossly disparate finance system denied their children, who were students in
poorer districts, their fundamental right to an education, in violation of the U.S. Constitution.
The U.S. Supreme Court, however, ultimately refused to find a fundamental right to education in
the Federal Constitution or to remedy the gross inequity in school finance brought about because of
Texas reliance on property taxes, and ruled against the parents and their children.4
Finding no assistance from the federal courts, parents and students then turned to the Texas state
courts. In the Edgewood series of cases in the 1980s and 1990s, poor school districts, with varying
degrees of success, challenged the Texas system as being so inequitable as to render it unconstitutionally
inefficient under Article VII of the Texas Constitution. Subsequently, wealthy districts intervened to
protect their interests, arguing that state control over their local property taxes amounted to a state
property tax, which Article VIII of the Texas Constitution prohibits.5
In response to the Edgewood litigation, the legislature enacted Chapter 41 of the Texas Education
Code, which focused on equalizing wealth levels among public school districts. This goal is achieved
primarily by equalizing property wealth through weighted student distributions (WADA) 6 and
ensuring comparable tax revenue for similar tax efforts7 across districts, resulting in the recapture of tax
revenue from property-wealthy districts and its effective redistribution through the guaranteed yield
formulas to property-poor districts. In order to avoid problems with Article VIII, local school districts had
to retain sufficient discretion under the law to set their own tax rates.
Under Chapter 41, a property-wealthy district must reduce its property wealth to the equalized
level through one of five methods: (1) merging its tax base with a poorer district; (2) sending money to
the state to help pay for students in poorer districts; (3) contracting to educate students in other districts;
(4) consolidating voluntarily with one or more other districts; or, (5) transferring some of its commercial
taxable property to another district's tax rolls. Most property-wealthy districts, including AISD, choose
the second option.
On the other hand, local discretion and the prohibition of a statewide property tax have become
proxies for preserving the privileges of wealthy districts and maintaining inequalities. In what is known as
the West Orange Cove round of school finance litigation (2005), property-wealthy districts were adept at
using the argument of constitutional adequacy to force reforms increasing the overall financial capacity
of the system. Then, in the course of passing a new school finance reform bill, they influenced the
legislature to build back some of their privileges into the funding formulas.
Recent litigation also has challenged the Texas school finance system as inadequate to achieve
the general diffusion of knowledge, required by the Constitution, calling into question the overall
funding capacity of the system as districts reach their maximum taxing cap limit.
The latest case challenging the system, Texas Taxpayer and Student Coalition v. Scott, brought by
poor and rural districts coalescing around the Equity Center of Austin, challenges inequity through
inefficiency, inadequacy, and also through the suitable provision clause of Article VII.8
Other school districts across the state have intervened in the latest case so that there are basically
five configurations of plaintiffs: (1) the coalition of poor, mid-wealth and rural districts tied to the Equity
Center; (2) the poor, predominantly Latino districts that have traditionally united with Edgewood ISD and
4
San Antonio Indep. School Dist. v. Rodrguez, 411 U.S. 1 (1973).

Tex. Const. art. VIII, 1-e (No State ad valorem taxes shall be levied upon any property within this State.).
6
The weighted student count adds anywhere from 0.1 (e.g., for limited English proficient students) to 0.5 (for
each special education student) to the student count used in the funding formula, in recognition of the higher cost to
educate higher-needs students. These weights determine the basic count used in many funding formulas as the
number of weighted students in average daily attendance or WADA.
7
Tax effort is measured by each penny increase of the tax rate per $100 of property valuation.
8
Cause No. D-1-GN-11-003130, 200th Judicial District, Travis County (Texas Taxpayer Coalition). The
appendix to this section outlines the litigation and cases in greater detail.
5
Appendix 26
29
are represented by the Mexican American Legal Defense & Educational Fund; (3) a coalition led by large,
urban mid-wealth districts represented by the law firm of former Texas Education Agency General
Counsel David Thompson; and, (4) a coalition of the wealthiest districts represented by Mark
Trachtenberg of the law firm of Haynes and Boone, LP. 9
The interests of the first two plaintiff groups continue to be complementary, just as they were in
previous litigation. The latter two groups were joined in the last round of litigation under the West Orange
Cove plaintiff group, arguing adequacy as a more important objective than equity. Wealthy districts
sought to protect their privileges and ensure they would not have to contribute more money to state
equalization. Though the wealthiest districts have formed their own coalition in this latest round of school
finance litigation, the Thompson group also is focused on adequacy rather than equity. AISD,
unfortunately, has aligned with this group.10
As an analysis of the Texas school finance system would show, framing remedies for consistent
constitutional infirmities in terms of efficiency, adequacy or suitability is a chronically flawed and much
delayed process. These remedies are flawed precisely because the Supreme Court of Texas has yet to
view education as a fundamental right demanding equity in funding practices and an equal opportunity for
all to a quality education and educational environment.
Instead of addressing this key issue, Texas court decisions and legislative responses have parsed
the school funding crisis into competing interests that too often serve as proxies for preserving the
privilege of a few and justifying the disadvantage of many.
For now, constitutional efficiency stands in the place of equity in school finance litigation.
To a certain degree, constitutional adequacy, and more recently suitability, have been used to
challenge the ability of the Texas finance system to ensure that all children receive equal opportunity to a
quality education that enables them to achieve their potential and fully participate now and in the future
in the social, economic, and educational opportunities of our state and nation.11
2. The Legislatures Piecemeal Approach Leaves Inequity in Place
Unfortunately, legislative remedies and reforms to the statewide funding system have not
eliminated all inequities or resulted in across-the-board equalization of revenue. Part of the reason for the
remedies lack of success is their negligent and imprudent implementation by the individual districts.
Additionally, constitutionally-mandated local discretion over property taxes remains at odds with
the goals of equity and equal opportunity.
Moreover, the law does not equalize local tax revenue for facilities, and the state does not
adequately fund Tier 3 facilities financing for poor districts.12
Finally, the weights used in the state funding formula to adjust the cost of education for higher
needs students are also inadequate, meaning that districts with a high percentage of poor, limited English
proficient, or special needs students are chronically underfunded.
A fifth plaintiff group in this litigation is formed by an organization called Texans for Real Efficiency and
Equity in Education (TREE). This group seeks to reform the education system along the lines of charter schools.
10
AISD joined the lawsuit claiming that funding inequity is a violation of equal protection in Texas and that the
current public school financing system is inadequate, unconstitutional and arbitrary. The suit will cost $1 per
student up to a maximum of $65,000 for the 2011 school year, and it may dip into next years school budget. Laura
Heinauer, AISD Approves Joining School Finance Lawsuit, Austin American-Statesman (Oct. 24, 2011).
11
Tex. Educ. Code 4.001(a).
12
Tier 3 financing is assistance from the state for low-wealth districts to provide a guaranteed yield in their
Interest and Sinking fund tax rate to help pay off bonds for facilities financing. There is no guarantee that poor
districts will receive Tier 3 financing, however. The legislature allocates limited funds each biennium for Tier 3.
Therefore, not all districts that qualify receive Tier 3 funding.
Appendix 26
30
The 2006 legislative reforms in response to the West Orange Cove litigation artificially bought
the state more time to improve or change its public education financing system. Since then, structural
inequities have built up; and poor districts have once again found themselves reaching their taxing and
funding capacity, resulting in the current Texas Taxpayer Coalition litigation.
3. Synopsis of Structural Inequities in the State Funding Formula
1. Due to the wide variety of property wealth among school districts throughout Texas, coupled
with the fact that property taxes are the most common way of financing a school district, a huge funding
chasm exists between property-wealthy and property-poor districts.
2. Inadequate implementation of legislative remedies for inequity, such as weighted student
distributions (WADA), also prevents equalization across and within school districts statewide. The
weights used in the state funding formula to adjust the cost of education for higher-needs students are
deficient, meaning that school districts with a high percentage of poor, limited English proficient, or
special needs students are chronically underfunded.
3. Additionally, state constitutionally-mandated local discretion over property taxes remains at
odds with the goals of equity and equal opportunity across school districts statewide.
4. The law does not equalize local tax revenue for facilities, and the state does not adequately
fund Tier 3 facilities financing for poor districts.
B. SUPPLEMENTAL FEDERAL FUNDING
In addition to state funds, the federal government contributes funds meant to battle school
inequity, chiefly through the No Child Left Behind Act (NCLB). Title I of NCLB is the best known
section of NCLB, and the main source of funding. All Title I funds are meant to help close the
achievement gap between schools within a district. Title I funding is based on the number of students
eligible for the federal free/reduced lunch program. Eligible students are those who come from
households making up to 130% of the federal poverty guidelines. Schools eligible for Title I funding are
those which have at least 40% of students eligible for federal free and reduced lunch. These students are
also categorized as economically-disadvantaged under the state school funding formulas.
NCLB funds do not replace state and local funds for underserved schools. School districts need to
equalize educational services purchased by state and local funds before they apply for NCLB funds. This
requirement exists because NCLB funds are meant to supplement state and local funds rather than
supplant them.
Use of Title I funds is restricted. Individual schools may not use them on what are considered
extra programs, such as field trips. Instead, they fund only basic and necessary programs and positions
that directly contribute to closing the achievement gap but again, these programs and positions must be
funded after the schools receive funding for educational services that is comparable to funding received
by other schools within a school district.
C. PUBLIC FUNDING: AUSTIN INDEPENDENT SCHOOL DISTRICT
In Texas, school districts collect public education funding from local, state, and federal revenue
sources. Of these three sources, local property taxes are the primary source of revenue for school districts.
As already noted, the use of property taxes in his funding scheme creates a great divide between propertywealthy and property-poor districts.
This section addresses the discrepancy between distributions to the District and distributions to its
individual schools. While AISD receives additional funding from the state based on its WADA, the extra
money awarded to AISD, based on the higher-needs student populations, does not always directly reach
the actual students in higher-needs schools, who desperately need it.
AISD elementary schools are feeder schools for middle schools, which are then in turn feeder
schools for high schools. Thus, if children receive an inadequate or poor quality education at the
Appendix 26
31
elementary level, their options for the future are limited right from the very beginning of their educational
journey.
Austin, which has always been interested in providing the best quality education to the children of
its community, thus will be limited in its future endeavors by failing to adequately educate its next
generation of leaders.
1. Distributions to AISD
Within AISD, funding for public education follows the path laid out by the state and the Texas
Education Code. AISD has three main funding sources, as do other school districts in Texas: the General
Fund, Food Services, and Debt Services.
The General Fund, also known as the Operating Fund or Local Maintenance Fund, is the largest
fund. The General Fund, in turn, has three main sources for financing public education in school districts:
local, state, and federal. The local funds for public education generally come from property taxes. Each
school district in Texas adopts two tax rates: Maintenance & Operations, which supports the major
operational and educational programs in a school district; and Interest & Sinking, which supports a
repayment of bonded debt that district voters have approved.
In addition to the General Fund, two remaining aspects of the governmental funds finance public
education in Texas: Food Services and Debt Services. The Food Services fund goes toward operation of a
districts cafeteria meal program. The financing also comes from local, state, and federal sources. The
local sources for the program primarily consist of collecting fees from meals sold to students and teachers
as well as local earnings made on investment. The state funding source for the cafeteria program is mainly
financed by the Texas Education Agency. In regards to federal funding, the majority of the money comes
from the National School Lunch Program, but some financing comes from the U.S. Department of Health
and Human Services.
The Debt Services fund that finances public education is sourced by school districts issuing
bonds. The District pays back the interest and principal on the bond through ad valorem taxes.
The funding from the state is then distributed to the District based on the weighted student
attendance counts, WADA. High-needs students, such as those that are economically-disadvantaged or
Limited English Proficient, are weighted so that the District receives more money to educate these
students. Of the 48,715 students enrolled in AISD elementary schools during the 2010-2011 academic
year, a total of 33,383 students were economically-disadvantaged. Therefore, a majority (68.53%) of the
students in the District require special programming and resources in order to meet the higher needs of
their education. Consequently, AISD is awarded additional money based on the Districts WADA to
educate these students.
2. AISDs Supplemental Federal Funding
AISD applies for Title I funds from the Texas Education Agency. Once approved and funded, the
District distributes the funds to eligible schools. AISD has made it a priority to fund those campuses with
the highest percentage of economically-disadvantaged students. This means that not all eligible schools
receive Title I funding. Beginning with the campuses with the highest percentage of economicallydisadvantaged students (e.g., campuses that are 99% economically-disadvantaged), AISD generally funds
down to campuses with approximately 60% economically-disadvantaged students.
Before Title I funds reach individual schools, they are distributed to AISD central administration.
Under the application guidelines, the District can divert 30% of discretionary Title I funds to central
administration without causing a red flag. In our discussions with district officials and review of its Title I
budget, AISD regularly diverts over 30% of its discretionary Title I funding to central administration.
Appendix 26
32
From the years 2007 to 2012, central administration has kept between 34.1% and 53.5% in central
administration.13
Though some of the budget administered centrally actually goes to fund positions at the campus
level, funding for some central administration positions is questionable. For example, in the 2011-12
school year, Title I funds were diverted to partially (50%) fund ten (10) positions in the Districts public
relations department. It is also unclear how locating some bureaucratic positions funded by Title I in
central administration can more effectively close the achievement gap, as required by NCLB, than
locating those positions on school campuses. Indeed, we argue for the school campus option.
Some NCLB money that stays within central administration is earmarked for programs and costs
that directly benefit higher-need schools. However, as of yet, AISD has not specified in its responses to
our open records requests precisely how much money is set aside for these purposes. There is simply no
way for the public to know exactly how AISD is spending federal money, even by reviewing copies of its
NCLB grant applications.
It appears that AISD is keeping as much money in central administration as possible. If AISD is
able to effectively target the money to the schools that need it most, this could be a more efficient use of
funds. However, the extent to which this money seems to be spent on positions with either vague or
misleading job descriptions gives rise to concern. The District must ensure that Title I money is spent
directly on students who need it and programs that support them, and make that data transparent and
intelligible.
3. AISD Distributions to the Schools
One of AISDs major problems in distributing funding equitably is that it does not have a reliable
system in place for tracking the flow of money. This not only creates inconsistencies within the system,
but also impedes the system from functioning the way it was intended.
The problem arises when the District redistributes the funds it receives from the state to
individual schools. Rather than distribute the money based on the number of high-needs students at each
school, the District uses staffing formulas that allocate positions, rather than dollars, to schools.
This inconsistent system of distribution to schools is problematic because the staffing formulas do
not take into account the differences in costs of educating high-needs students. The formulas are instead
based on actual enrollment, which is then used to determine how many teacher positions a given school
has to fill.
Among other things, the staffing formula also does not take into account salary scales, which are
skewed in favor of wealthier schools since those schools attract more experienced teachers who receive
higher salaries.
Ultimately, the staffing formula allows teacher retention rates to affect the flow of resources and
educational quality among the schools because teachers who have taught longer have a higher pay rate
and frequently prefer to teach in high-equity schools. This decreases funding to the schools with a higher
percentage of economically-disadvantaged students, as they tend to have significantly lower teacher
retention rates. Teachers with more experience tend to be better teachers. Not retaining them and opening
their positions to less-experienced teachers adversely affects low-equity schools.
Further, although money comes to the District based on the WADA calculations, Texas does not
require the district to fund campuses based on WADA. Instead the state only requires that a certain
amount of money be spent on programs geared towards at-risk students, which includes limited English
13
Ten percent (10%) of Title I funds are set aside for specific non-discretionary programs under the rules. An
additional 20% must be set aside for transportation costs to provide for school choice to parents at schools under a
school improvement plan for failing to meet adequate yearly progress (AYP) in two consecutive years. AISD
recently announced that 12 Title I schools will be in stage 1 of the NCLP School Improvement Program.
http://www.austinisd.org/articles/AYP2012.
Appendix 26
33
proficient, economically-disadvantaged, special education, and other students. This means that the
District ultimately gets to determine how it spends its money on bilingual education and other programs
for at-risk students, including economically-disadvantaged students. The District does not ensure that
money intended to supplement the education of needy students actually reaches those students; nor does
the state require it to do so.
As a result, AISD does not actually know how much compensatory funding each school is
receiving because some factors that go into determining at-risk students do not get translated to the
campus-level, which results in schools with high percentages of economically-disadvantaged children
receiving less funding than they would if monetary distribution was based on their campus WADA.
The end result is that the salaries of about half the base number teachers at high economicallydisadvantaged schools are supported by this compensatory funding given to AISD and being reported as
satisfying the Districts obligation to provide a certain percentage of compensatory bilingual education.
So, rather than getting additional bilingual education teachers to compensate its base number of teachers
with this funding, the schools with a high percentage of economically-disadvantaged students still only
have the base number of teachers, even though the compensatory funding is being used to pay their
salaries.
We believe this results in the subsidization of high-equity schools by the students of low-equity
schools. On the one hand, LEP and economically-disadvantaged students bring more money to the
district through the weighted state school finance system. However, if two schools with comparable
enrollments receive the same number of staffing positions, the District can use positions at the low-equity
school for its reporting on compensatory education, without actually providing additional funds to that
school (and, because of the lower teacher retentions rates, may actually be paying less to fill those
positions than at a high-equity school). In this way the low-equity campuses not only do not receive
additional monies for compensatory education, they in fact subsidize other schools in the District with
fewer high-needs students.
The cost of educating an economically-disadvantaged student is significantly higher than the cost
of educating a non- economically-disadvantaged student, since supplemental programming and resources
are necessary to give high-needs students an adequate and equivalent education. Thus, schools with a high
percentage of economically-disadvantaged students require more funding for their education services to
be equitable.
Title I provides some supplementation, but the District should reconsider its internal funding
formula to ensure that weighted student funds flow to the children who need those resources. This can be
easily accomplished by incorporating weights into the staffing formulas. There is precedent for this in the
Districts funding of magnet programs. For a middle school with a magnet program, the teacher
allocation formula provides additional teachers based on 30% additional weight for the number of magnet
students. For LASA, additional teachers are provided based on a 25% additional weight for the number
of magnet students.14 If this is done to ensure the academic excellence of these magnet programs, why
cant the same be done based on the campus WADA for students who are English language learners and
economically disadvantaged?
While the District argues that ultimately schools with economically-disadvantaged students
receive more funding, there is evidence that, in fact, AISDs haphazard distribution system results in
some schools with wealthier student populations receiving more money than other schools with similar
enrollment numbers.
Some schools with a high percentage of economically-disadvantaged students not only fail to
receive supplemental funding, but also receive less funding than schools with a low percentage of these
students. This disparity clearly defies the purpose of distributions to AISD based on WADA, by allowing
14
AISD Staffing Formulas for 2011-2012, obtained through open records request.
Appendix 26
34
schools with a high percentage of economically-disadvantaged students to receive less funding, not more,
than wealthier schools of comparable size.
The problem is particularly evident in AISD elementary schools. We used the Districts own
Campus Data Sheets to analyze expenditures per student at campuses across the District.15 The numbers
and analysis below are based on five-year averages drawn from those data sheets.
The graph below compares the amount of funding per student at schools with a higher percentage
of economically-disadvantaged students with schools with a lower percentage of these students that are of
similar enrollment size.
Specifically, as the graph below demonstrates, despite the Districts contention that poorer
schools consistently receive more funding, several schools with a high percentage of economicallydisadvantaged students receive less funding than those with a low percentage of such students.
(1) Schools with a lower percentage of economically-disadvantaged students are located
in the wealthier areas of the District, have higher performance scores and more
resources, and are represented by lighter shading.
(2) Conversely, schools with a higher percentage of economically-disadvantaged
students generally tend to be under-enrolled, have lower performance scores, fewer
resources and teachers, and are represented by the darker shading.
This Public Funding Distribution graph illustrates that, even among schools with similar
enrollments, there are schools with more economically-disadvantaged students receiving less funding per
student than schools with fewer of these students. This is especially problematic for two reasons:
(1) The cost of educating an economically-disadvantaged student is significantly higher
than the cost of educating a non-economically-disadvantaged student. This means
that schools with a high percentage of economically-disadvantaged students require
more funding, since they need to provide supplemental programming and resources
to give their students an equivalent education or to level the playing field.
(2) The Texas Education Agency (TEA) recognizes the higher costs of educating
economically-disadvantaged students. Since a significant portion of the AISD student
population is composed of economically-disadvantaged students, TEA grants AISD
extra funding to equalize the education of economically-disadvantaged students to
15
See http://www.austinisd.org/sites/default/files/dept/budget/docs/Per_Pupil_Data_By_Campus.pdf. For this

report, we used the version which included the five years up to the budgeted expenditures for 2011-2012. The
version currently on the website includes the five years up to the budgeted expenditures for 2012-2013.
Appendix 26
35
that received by non- economically-disadvantaged students. Unfortunately, as the

above data shows, AISD does not consistently distribute this additional
economically-disadvantaged funding to the children on whose behalf it is receiving
the funding.
On average, elementary schools in AISD spend $5,689 per student.16 However, the data reported
by the District shows that of the 52 schools with the highest percentage of economically-disadvantaged
students, over half of them receive less than this amount to spend per student.
This is startling because the District contends that schools receive more funding on the basis of
having high numbers of economically-disadvantaged students. Yet the data reported by AISD itself
contradicts this argument. The current system of distributions by the District only compounds the
egregious inequities seen in AISD and in Texas as a whole.
This inequity alone is a troubling realization even without considering whether receiving $5,689
per student is actually adequate for a school to sufficiently address the educational needs of its students.
4. Alternative Solutions
Rather than maintaining its inconsistent and haphazard system of funding distribution that causes
some poorer schools with a high percentage of economically-disadvantaged students to receive less
financial support than wealthier schools, the District must consider alternative solutions.
In the interest of developing a system that would accurately and consistently track the funding
AISD receives and distribute it equitably, the Texas Civil Rights Project suggests a using a campus
WADA formula to serve as a proxy for AISD elementary schools.
Instead of, or in addition to tracking the compensatory funding through a program expenditures,
as AISD currently does, this campus WADA formula would redistribute and track the funding given to
individual campuses on the basis of the high-needs students they are intended to benefit. The money
follows the student, not the staff.
Our study examined how the District might then distribute funds schools based on their number
of high-needs students. We refer to this system as the adjusted WADA for the campuses because just as
the District is awarded extra money for their number of economically-disadvantaged, Limited English
Proficient, and high-needs students, the schools would also be funded in this manner, based on their own
weighted student attendance counts (WADA).
The adjusted WADA method of distribution aims to have the money follow the student, such that
the students who need the additional funding for their education actually receive it. In short, under the
adjusted WADA, the money follows the student.
The goal of this was to find how much money each elementary school in AISD was receiving to
educate their students and how much money these schools would receive per student under the modified
WADA.
We used enrollment data from TEA reports to determine how many students were enrolled in
each school for the 2010-11 academic year, and how many of these students were economicallydisadvantaged. We then multiplied the number of economically-disadvantaged students by their assigned
weight (0.2), as established by the legislature for the state school finance system.
For example, McBee Elementary had 757 students enrolled; 750 of these students (99.1%) were
economically-disadvantaged. When multiplying 750 economically-disadvantaged students by their
assigned weight (0.2), the school should be awarded funds for an additional 150 students.
16
This number is arrived at by averaging the costs per student reported by AISD over the last five school years.
To view the data, please see the Methodology section of this report.
Appendix 26
36
Therefore, McBees WADA enrollment is 907 students, meaning that, while only 757 students
are enrolled, the school would be funded as if it had 907 enrolled to compensate for the additional cost of
educating high-needs students. On average, McBee spends $4,817.80/student in an academic year. With
the adjusted WADA approach, McBee would receive $5,772.45/student, which is $954.65/student more
in compensatory educational funds than it then received.
This is one example of a lower-equity, poorer school with a high percentage of economicallydisadvantaged students. Given how the District currently allocates funds, it does not receive enough state
money to give each school the extra funds that would be required under the adjusted WADA.
It is incumbent on AISD to ensure an equal opportunity to children with higher needs. While the
District should continue efforts and explore avenues to secure additional funding for high-needs schools,
it must redistribute its money based more equitably on campus WADA. This will help level the playing
field and further the goal of overall success and student achievement. One way to do this, while still
using a staffing formula, would be to incorporate the campus WADA of high-needs schools similar to the
way magnet schools are weighted to receive additional teachers. Most of these high-needs schools would
receive an additional weight of about 25%. There may be other means to achieve the same equitable goal,
but the discussion must begin on this basis equitable distribution for schools like McBee.
Another way to minimize the current system of haphazard distribution would be to hold the
District accountable for reporting exactly where it spends the money it receives from the state on behalf
of the economically-disadvantaged students. More specifically, the District should report what amount of
the WADA-earned money it actually siphons off for its own administrative costs.
Because the District receives funding for state compensatory education programs and services for
educationally-disadvantaged students, this compensatory funding should follow the students. The states
accountability system in this regard is inadequate as we have seen, since ordinary teachers salaries can be
included in program accounting. Moreover, under Title 19 of the Texas Administrative Code (TAC)
105.11, school districts are allowed to spend up to 48 percent of the compensatory allotment on indirect
costs, including general administration costs, related to state compensatory education.17 District records,
however, simply do not make clear how these funds are being spent. Therefore, AISD is required to
spend at least 55 percent of the WADA allotment on the Districts identified state compensatory
education programs and services.
The District should be required keep and to release its expenditure records in order ensure that it
is not siphoning off more money than permitted by the TAC for its own administrative costs. If the
District does not know where the money it withholds for central administration is spent, or how much of
it is spent to benefit its different programs, then it cannot be expected to remedy some of the significant
disparities in educational equity identified in this report.
Moreover and more importantly, there is no requirement that AISD has to use the 48/52 formula.
It could adopt a 30/70 formula, for example, and send more money to the schools in great need of such
funds. Texas and AISD should make it a priority to ensure that the compensatory educational funds get to
the students and schools that so desperately need them.
D. SUMMARY
(1) Despite educations crucial role in the economic, political, and social fabric of our society,
the patchwork structure of the Texas public school financing system has failed to provide equal access to
resources and hence equal opportunity to children across the state.
(2) While individuals have attempted to use litigation to address the inequities in public
education, framing remedies for consistent constitutional infirmities in terms of efficiency, adequacy or
suitability is a chronically flawed and much delayed process. Until the Supreme Court of Texas
17
There are indications that school districts lobbied the legislature to increase this percentage.
Appendix 26
37
recognizes education as a fundamental right, the fight for equity in education must advance through state
and district policies and procedures.
(3) The state and federal governments have responded to the inequities produced by the unequal
distribution of property wealth across the state with equalization funding programs and formulas,
including weighted student attendance counts for high-needs students (WADA) and the No Child Left
Behind Act (NCLB).
(4) While AISD argues that ultimately poorer, lower-equity schools receive more funding, there
is evidence that, in fact, because the District distributes funding to schools based on staffing formulas,
rather than a schools number of high-needs students, some wealthier schools therefore receive more
money than poor schools with similar enrollment numbers.
(5) To ensure that the compensatory funding given to AISD based on the number of high-needs
students actually gets to the students and schools that truly need it, the District should reexamine its
haphazard and inconsistent methods of distribution. It should consider alternative solutions, such as
distributing the funds based on each schools WADA so that schools with the highest percentage of
economically-disadvantaged students receive the greatest amount of compensatory funds.
(6) Additionally, AISD should be held accountable for tracking and reporting where exactly its
funding from the state goes, including what portion of the WADA and Title I of NCLB funds the District
siphons off for its own administrative costs.
The cost of educating an economically-disadvantaged student is

significantly higher than the cost of educating a non-economicallydisadvantaged student, since supplemental programming and resources are
necessary to give higher-needs students an adequate and equivalent education.
Thus, schools with a high percentage of economically-disadvantaged students
require more funding for their education services to be equitable.
Appendix 26
38
One of AISDs major problems in distributing

funding equitably is that it does not have a reliable
system in place for tracking the flow of money. This
not only creates inconsistencies within the system, but
also impedes the system from functioning the way it
was intended.
The problem arises when the District
redistributes the funds it receives from the state to
individual schools. Rather than distribute the money
based on the number of high-needs students at each
school, the District uses staffing formulas that
allocate positions, rather than dollars, to schools.
This inconsistent system of distribution to
schools is problematic because the staffing formulas
do not take into account the differences in costs of
educating high-needs students. The formulas are
instead based on actual enrollment, which is then used
to determine how many teacher positions a given
school has to fill.
Among other things, the staffing formula also
does not take into account salary scales, which are
skewed in favor of wealthier schools since those
schools attract more experienced teachers who
receive higher salaries.
Ultimately, the staffing formula allows teacher
retention rates to affect the flow of resources and
educational quality among the schools because
teachers who have taught longer have a higher pay
rate and frequently prefer to teach in high-equity
schools. This decreases funding to the schools with a
higher percentage of economically-disadvantaged
students, as they tend to have significantly lower
teacher retention rates. Teachers with more
experience tend to be better teachers. Not retaining
them and opening their positions to less-experienced
teachers adversely affects low-equity schools.
Appendix 26
39
APPENDIX III
HISTORY AND SUMMARY OF TEXAS SCHOOL FINANCE LITIGATION
Appendix 26
40
Appendix 26
41
HISTORY AND SUMMARY OF TEXAS SCHOOL FINANCE LITIGATION

San Antonio Indep. School Dist. v. Rodriguez (1973)
Parents of schoolchildren filed suit in federal court and claimed that the Texas system was
unconstitutional because poorer districts had to tax lower-value property at a higher rate to fund their
schools. The U.S. Supreme Court, however, held that education was not a fundamental right and the
system did not violate the Federal Constitution.
Edgewood Indep. School Dist. v. Kirby (Edgewood I) (1984)
Property-poor districts challenged the school finance system in state court as violating Article VII of the
Texas Constitution. The Texas Supreme Court held that the system was not efficient under Article VII
because it allowed gross funding inequities between property-poor and property-rich districts for the same
tax effort. The court ordered the legislature to develop a more efficient finance system, based on
equitable revenue for similar tax efforts across districts.
Edgewood Indep. School Dist. v. Kirby (Edgewood II) (1991)
In response to the Texas Supreme Courts order in Edgewood I, the legislature increased funding for
public schools. The Court held that the increase in funding did nothing to change the underlying finance
system, and ordered the legislature to address the issue again.
Carrollton-Farmers Branch Indep. School Dist. v. Edgewood Indep. School Dist. (Edgewood III)
(1992)
Wealthy school districts challenged a new school finance system that required districts to tax property at a
certain level and distribute the proceeds among the districts. The Texas Supreme Court struck this plan
down as an unconstitutional statewide property tax under Article VIII of the Texas Constitution.
Edgewood Indep. School Dist. v. Meno (Edgewood IV) (1995)
The Texas Supreme Court upheld a complex plan that tied a certain amount of state funding to a districts
levying a minimum property tax, with discretion to increase property tax rates to a certain cap, and
equalization of property tax revenue across districts to reduce the disparities in funding. Fundamental
aspects of this system of equalization have remained in place, with some modifications.
Neely v. West Orange Cove Consol. Indep. School Dist. (West Orange Cove) (2005)
This challenge from wealthy districts focused on the adequacy of the state finance system to achieve the
general diffusion of knowledge standard required by Article VII of the Texas Constitution. It
challenged whether that standard was being met with a majority of school districts at the time taxing at
the cap or maximum rate. Poor districts joined the lawsuit to argue the case from their perspective. The
Texas Supreme Court held that, because most districts had to tax at the maximum rate to adequately
provide for a general diffusion of knowledge, the system resulted in an unconstitutional de facto state
property tax.
Texas Taxpayer and Student Coalition v. Scott (filed 2011)
A taxpayer group along with rural and property-poor districts have all challenged the present state finance
system under the efficiency, adequacy, and for the first time the suitable provision clause of
Article VII. Plaintiffs argue that the legislative remedies in response to West Orange Cove, which made
multiple modifications to the system, were arbitrary and created widening inequities, driving poor
districts quickly to the maximum rate.
Appendix 26
42
Despite educations crucial role in the economic,

political, and social fabric of our society, the patchwork
structure of the Texas public school system has failed to
provide equal access to resources and hence equal
opportunity to children across the state.
While individuals have attempted to use litigation to
address the inequities in public education, framing remedies
for consistent constitutional infirmities in terms of
efficiency, adequacy or suitability is a chronically flawed
and much delayed process. Until the Supreme Court of
Texas recognizes education as a fundamental right, the fight
for equity in education must advance through state and
district policies and procedures.
The state and federal governments have responded to
the inequities produced by the unequal distribution of
property wealth across the state with equalization funding
programs and formulas, including weighted student
attendance counts for high-needs students (WADA) and the
No Child Left Behind Act (NCLB).
While AISD argues that ultimately poorer, lower-equity
schools receive more funding, there is evidence that, in fact,
because the District distributes funding to schools based on
staffing formulas, rather than a schools number of highneeds students, some wealthier schools therefore receive
more money than poor schools with similar enrollment
numbers.
To ensure that the compensatory funding given to AISD
based on the number of high-needs students actually gets to
the students and schools that truly need it, the District should
reexamine its haphazard and inconsistent methods of
distribution. It should consider alternative solutions, such as
distributing the funds based on each schools WADA so that
schools with the highest percentage of economicallydisadvantaged students receive the greatest amount of
compensatory funds.
Additionally, AISD should be held accountable for
tracking and reporting where exactly its funding from the
state goes, including what portion of the WADA and Title I
of NCLB funds the District siphons off for its own
administrative costs.
Appendix 26
43
III.
PRIVATE FUNDING OF SOME AISD SCHOOLS CREATES SIGNIFICANT

AND SUBSTANTIAL INEQUALITY WITH OTHER AISD SCHOOLS
A. SOURCES AND CHALLENGES OF PRIVATE SUBSIDIZATION

The most obvious solution to inequitable public school subsidization, it would seem, is to simply
have the low-equity schools raise more money to fund the programs they need. Many sources of private
subsidization are currently in use throughout AISD schools, including:
Direct voluntary contributions

Parental contributions through enrichment and other fees
Government or nonprofit grants or donations
Donations or sponsorships by businesses
Traditional school fundraisers, like candy or magazine sales
Super-fundraisers, like silent auctions or golf tournaments with expensive entry fees
However, every one of these subsidization sources requires a substantial starting investment of
money, time, and social capital all of which are in short supply for most parents of low-equity school
students. Direct voluntary contributions, as well as parental contributions through enrichment and other
fees, are obviously out of the question for most parents at schools where many students are classified as
economically-disadvantaged in other words, eligible for the federal free/reduced school lunch program.
But other types of subsidization are more difficult too.
While the District does some grant writing for schools, that amount makes only a small difference
for low-equity schools, as is obvious in our activity ledger comparison, and additional grant writing
requires both time and a level of education and expertise most people dont have in low-equity
communities.
Business sponsorships, relied on heavily by high-equity schools for extra revenue, would be a
possibility; but, as one PTA president pointed out logically, in low-equity schools, whats the quid pro
quo for the business?1 Businesses sponsor or donate to schools because it gets them advertising, like a
link on the schools website; and parents at those schools are more likely to shop at a business that
supports their childrens education.
At low-equity schools, many of which dont even have a developed website other than the
minimal page provided on the AISD website, there is no quid pro quo because parents lack the extra
disposable income to patronize a florist or dry-cleaner to support their childrens education; and
businesses know it.
Finally, traditional school fundraisers, like candy or gift wrap sales, only succeed when the
childs parents, parents friends, or neighbors have disposable income to buy nonessential items, or when
the parents have time and gas money to take the children door-to-door and drive them around.
Super-fundraisers, which make a huge amount of money for schools that undertake them, rely on
parents who have social networks that can mobilize donations, and even greater access to disposable
income to purchase expensive seats at social events or to bid on items at school auctions.
It is certainly possible to fundraise or add value to the educational experience in other ways
without a large amount of starting capital, but only if parents and students have the time and involvement
to be creative with their resources.
This is relatively simple for high-equity schools, where many families have one stay-at-home
parent. But for low-equity schools, where many parents work two or even three low-paying jobs, neither
time nor money nor social capital is available to invest in subsidizing education to an acceptable level.
1
Interview with a PTA president (2011).
Appendix 26
44
PTAs at many low-equity schools struggle to even maintain a quorum at meetings, much less find
adequate numbers of volunteers for events or classroom support.
This is also attributable to the lack of organizing skills that poorer parents in low-equity schools
generally possess, for a variety of reasons, as compared to higher-equity schools where more middle-class
parents have learned to be more adept at organizing. The kind of equity-sharing this report envisions
would also have the collateral effect of increasing the organizing skills of parents in low-equity schools.
B. HOW PRIVATE SUBSIDIZATION CREATES AND PERPETUATES A CHASM OF EDUCATIONAL
OPPORTUNITY INEQUALITY IN AISD
The struggle around school finance in Texas has two chronicles: one is the hotly contested
historical legal battle to make financing more equitable across and among all school districts in the state.
The other chronicle -- much less contested because it happens under the horizon -- is the
distribution of funding within school districts themselves. Severe inequities in funding and resources exist
among schools within the same district across the state,2 and AISD is no exception.3
Our research into Austin ISD, a property-wealthy district by state standards,4 demonstrated
conclusively that schools within the District itself are not equally funded or similarly equipped to provide
a comparable, quality education. To the contrary, our study showed severe inequities in funding and
resources among schools in AISD.
Indeed, there is a huge divide between more affluent, majority-white schools (west Austin, for
example), and the poorer, at-risk, largely Hispanic or African American schools in other areas of the city
(east Austin, for example).5 This divide is similarly reflected in the achievement gap between
economically-privileged and economically-disadvantaged students, and between white and minority
students.
This raises a corollary concern: the extent to which the equity gap for schools within the District
contributes to an achievement gap among these schools.
The reason for the equity divide seems to be that, in the wake of the chronic crisis of Texas
school financing, the states public school system has devolved into a set of inadequately-funded public
schools overall, which are rescued through private subsidization in wealthier and more affluent areas of a
district, such as AISD.
The private subsidization of schools is the hidden structural component of public education
funding in the state that leads to enormous inequities among schools within the same district. This is true
of AISD.
Because of private subsidization, even in a relatively well-funded district like AISD, there exists a
distinct two-tier public education system, which strongly reflects race and socioeconomic class. At the
lower tier are schools in low-income, minority communities, identified in our report as poorer, high-needs
See Hayley Kappes, Clint student-spending disparity targeted, El Paso Times (July 19, 2012), at
http://www.elpasotimes.com/news/ci_21106199/clint-student-spending-disparity-targeted?source=rss.
3
In AISD, the lack of consistent data and uniform reporting requirements at the individual school level and
within the District itself mask these inequities. Nor does the District make any effort to track private subsidization
levels at schools apparently a kind of eye-winking approach.
4
AISD is a Chapter 41 District, meaning that its property wealth per student is above the equalized level for the
state. As such it must reduce its wealth level by one of the appropriate measures to the maximum equalized level,
which is still higher than the equalized level for property-poor Districts. See Bonnie A. Lesley, Money Does
Matter!: Investing in Texas Children and our Future, Austin Equity Center (2005), at
http://www.equitycenter.org/resources/reports/money-matters, pp.35-44, for a discussion of the persistent inequity in
funding between property poor and property rich Districts.
5
East Austin was once the center of inferior, segregated schools. There are now minority and low-income areas
in different areas of the city, such as southeast, northeast and central.
2
Appendix 26
45
schools.6 Persistent disparities in outcomes, as reflected by test scores and graduation rates, chronically
plague these schools. These campuses have limited access to private resource equity.
State funding formulas and federal Title I funds attempt to compensate or supplement for the
higher cost of educating higher-needs children. As noted in the public funding section, the state funding
formulas do not translate into as noticeable compensatory funding, as one would expect, for poor, highneeds schools at the ground level.
Title I funds do provide a supplement. Although they are limited, strictly controlled, and can be
used only toward specific objectives and programs, like educating at-risk students, supporting parental
involvement or professional development, districts, including AISD, have a way of siphoning off more
funds than they should or need -- for central administration.
This compensatory and supplemental public funding, however, even if used appropriately, is still
insufficient to cover the real costs of educating high-needs children.7 Private resource supplementation to
overcome that gap is extremely limited. Parents at these schools, for example, have low family incomes,
often work several jobs, and frequently lack English language skills. These factors make parental
organization and local fundraising problematic, if not next to impossible.
The Austin communitys economic leaders, rather than using their resources and time to petition
for greater public and private funding to benefit all children, simply subsidize their own childrens public
education, solidifying unequal opportunities.
A 2004 paper for the National Center for Education Statistics of the U.S. Department of
Education identified the inconsistencies and lack of accurate accounting for resources spent at the school
level,8 which are true of AISD. The report identifies four reasons why the lack of clarity around how
resources are distributed within a school district is especially problematic:
(1) Without accurate and consistent accounting of resources spent at the school level,
accountability measures and requirements lose significance;
(2) Uneven and inequitable distribution of resources gives rise to potential legal problems of
within-district inequity;
(3) Insufficient school level accounting leads to poorly informed decisions on resource
allocation; and,
(4) Accounting inaccuracy leads to a deficient understanding of the relationship between
resources and outcomes.9 If, for example, the public knows the full amount of resources spent
or invested in successful schools, we might have a more accurate picture of what it costs to
turn a failing school around and how to better distribute resources toward that goal.
AISD is deficient on all four points.
The little-studied area of private subsidization adds another level of complexity and difficulty to
these issues. As with AISD public resource funding, there is poor accounting at the school level for
private resource funding. It is a large component of school funding, but is ignored as such in the analysis
We contrast poorer, high-needs schools to wealthier, privileged schools throughout the report to signify the set
of factors contributing to resource disparity, including disparities in family income, school funding, educational
resources, and social and cultural capital at the disposal of local schools, and, inversely, the higher needs and
challenges facing poorer, high-needs schools.
7
Lesley, supra note 4, at pp. 40-41.
8
Lawrence Miller, Marguerite Roza, and Claudine Swartz, A Cost Allocation Model for Shared District
Resources: A Means for Comparing Spending Across Schools. Developments in School Finance: 2004, U.S.
Department of Education, pp.71-80.
9
Id. at p.72.
Appendix 26
46
of resource allocation, or, as we found, viewed inappropriately as a way for wealthier, privileged schools
to balance the supplemental funding received by poor, high-needs schools.
Including the realm of private subsidization in the Texas school finance picture will help AISD
make better decisions about how to fund what students need to succeed and how to achieve greater equity
across the District.10
Traditionally, school fundraising projects evoke images of bake sales, raffles, and other smallscale endeavors. Maybe the money from baked goods could buy extra classroom supplies, a class pizza
party, or small teachers gifts expenditures unlikely to impact the quality of education.
But todays private subsidization goes far beyond traditional fundraising, ranging from golf
tournaments to high-cost silent auctions (like $5,000 privileged parent parking places in the school lot) to
school sponsorships from any business seeking the patronage of higher-income parents, including dry
cleaners and liquor stores.11 Moreover, parents increasingly contribute directly to classroom activities,
programs and educational services. This revenue makes a substantial difference in educational quality and
teacher satisfaction.
Just how much of a difference? Our most complete data comes from the activity ledger accounts
kept by the schools.12 These accounts record revenues and expenditures from direct contributions by
parents/students or other private sources (grants), and may include classroom enrichment fees for
supplies, teacher support and appreciation,13 technology or equipment support, booster clubs, additional
teachers or teaching assistants, extra-curricular educational activities, etc.
Under these terms, the least-subsidized elementary school, Winn Elementary, receives a private
subsidization of $22.34 per student per year. The most-subsidized school, Pease Elementary School, has a
private subsidization of $856.37 per student per year. That is an astonishing per student difference of
$834.03, which, with an average expenditure of $5,700 per student in AISD elementary schools, amounts
to a 15% increase in funding due to private subsidization.
10
Lesley, supra note 4, pp.40-41 (discussing inequitable state funding based on failure to adequately take into
account different student needs).
11
These later fundraising examples came from the Highland Park Elementary Schools PTA website. See
Partners in Education, at http://archive.austinisd.org/schools/website.phtml?id=070.
12
Here, too, there is a lack of uniform record-keeping (and sometimes no record-keeping), making transparency
problematic and incomplete. If there is a coherent AISD policy on accounting for private funds, it is clearly not
respected or enforced.
13
Teachers in more affluent schools can typically expect to receive gifts from students, such as gift cards to
movie theatres, salons, retail stores, or restaurants. Teachers in poorer schools receive significantly fewer gifts and
of substantially less value.
Appendix 26
47
1. Private Subsidy Funds (PSF) Per Student Per Year (Elementary Schools)47
.
According to District administrators, the activity ledger accounts do not include the revenue
raised and contributions made by local Parent-Teacher Associations (PTAs).48 Our only access to this
source of school revenue was through their tax returns filed with the Internal Revenue Service as IRS
501(c)(3) nonprofits.
There may be some overlap with District accounts, if, for example, a PTA funds a full time
employment (FTE) position. This money must be routed through the District. More often than not, a
higher-equity school PTA will fund part-time or contract positions to enhance programs and services at
the school, such as a reading specialist or Spanish instructor, as has been the case at Lee Elementary. 49
47
Note that PSF per student data was garnered from school records acquired in April 2011. These funds have
been prorated to account for the fact that the 2010-11 school year was not complete when the data was acquired and
averaged over five school years.
48
Accounting for these resources is problematic, and we received some conflicting assertions by District
administrators as to whether or not PTA monies appear in any accounts kept by the District. This is only indicative
of the lack of accountability for school level resources and contributes to the problems noted above in footnote 6 for
appropriately funding schools for success and equal opportunity.
49
2009 IRS 990 of Robert E. Lee Elementary PTA.
Appendix 26
48
While we were unable to obtain tax returns for all the schools, where we did find more consistent
filings was for some of the wealthier, privileged schools. The poorer, higher-needs schools probably do
not raise enough money to require filing an IRS tax return.
Some of the wealthier PTAs raise more than $200,000/year, making an impact of as much
$384/student per year over the last four years available:
2. Private Subsidy Funds (PSF) Plus Documented PTA Revenues,
Per Student Per Year (Elementary Schools)
For the above chart, we used only data that was complete for the last four years available.
However, a recent tax return from Graham Elementary, a poor, high-needs school, is indicative of what
PTAs at those schools probably are able to raise. In 2009, the Graham PTA raised $3,367, which amounts
to only $5.12/student for that year.
The top 20% of elementary schools in private subsidy funding spend on average $483/student per
year, while the bottom 20% spends only $40/student. This means that the top quintile increases average
funding per student by 8.5% through private subsidization, while the bottom quintile increases funding by
only 0.7%. For a typical elementary school of 500 students, this amounts to an extra $241,500 in funds
for schools in the top 20%.
The same gap in private subsidy funds between poor, high-needs and wealthier, more privileged
schools exists, when comparing all the schools in the District. The following charts show the distribution
Appendix 26
49
curve of private subsidy funds (PSF) for all schools (elementary, middle, and high) in the District for
which we received data.50
3. Private Subsidy Funds (PSF) Per Student Per Year (All Schools)
Private subsidization was the missing piece of the puzzle of AISDs tiered education system. As
the data show, it is not difficult to predict which schools receive private subsidization and which do not.
There are strong correlations between a schools private subsidy funds (PSF) and percentage of minority
and higher-needs students:
50
Notably missing from the data was Eastside Memorial, one of the low-equity high schools. Other schools
missing were Garcia and Gorzycki Middle Schools. See tables with this data for all schools in the appendix.
Appendix 26
50
4. Private Subsidy Funds (PSF) Per Student,

Compared to Percentage of Minority Students
$900.00
100
$800.00
90
$700.00
$600.00
$500.00
80
70
60
50
$400.00
$300.00
$200.00
$100.00
$0.00
40
PSF per student per year

% Minority Students
Linear (% Minority Students)
30
20
10
0

Compared to Percentage of Economically-Disadvantaged Students
$900.00
100
$800.00
90
$700.00
$600.00
$500.00
80
70
60
50
$400.00
$300.00
$200.00
$100.00
$0.00
Appendix 26
40
30
20
10
0
PSF per student per

year
Economic
Disadvantage
Linear (Economic
Disadvantage)
51

Compared to Percentage of At-Risk Students
$900.00
100
$800.00
90
80
$700.00
70
$600.00
60
PSF per student

per year
50
At-Risk %
09-10
40
Linear (At-Risk
% 09-10)
$500.00
$400.00
$300.00
30
$200.00
20
$100.00
10
$0.00
These students make up a very substantial percentage of AISD students overall. In 2011-2012, the
latest school year for which data was available, when this report was undertaken:
52
data.
74.6% of students were non-white,
63.7% were economically-disadvantaged, and
27.4% had limited English proficiency.51
There were 53.9% at-risk students in 2009-2010, the latest school year for which we obtained
Even more significant, comparison of the these demographics between the low-equity schools in
the bottom 20% tier of private subsidies and the high-equity schools in the top 20% tier shows a startling
segregation of these resources.
51
AISD website, at http://archive.austinisd.org/inside/docs/AISD_Basic_DataV3.pdf.

At-risk data comes from an AEIS report, at http://ritter.tea.state.tx.us/perfreport/aeis/2010/district.srch.html
for Austin ISD, 2009-2010.
52
Appendix 26
52
There are equally strong correlations between PSF and achievement outcomes, including between
PSF and the percentage of students who are college ready, the percentage of the students who drop out,
and the percentage of the students who believe they will go to college:
7. Private Subsidy Funds (PSF) for High Schools and College Readiness
a. Data
ID
006
007
004
008
017
010
005
002
013
009
High School
Reagan
Travis
Lanier
Crockett
Akins
L B Johnson
McCallum
Austin
Bowie
Anderson
PSF/student per year

$120.23
$153.80
$158.29
$185.07
$191.82
$356.67
$439.80
$480.92
$613.40
$638.79
College Ready %
24.0
27.0
25.0
33.0
35.0
19.0
58.0
58.0
65.0
73.0
b. Chart
$700.00
$600.00
100
90
80
$500.00
$400.00
70
60
50
$300.00
$200.00
40
PSF per student per year
30
College Ready % *
20
$100.00
$0.00
Appendix 26
10
0
53
8. Private Subsidy Funds (PSF), High Schools, and Drop-Out Rate

a. Data
ID
006
007
004
008
017
010
005
002
013
009
High School
Reagan
Travis
Lanier
Crockett
Akins
L B Johnson
McCallum
Austin
Bowie
Anderson
PSF per student/year

$120.23
$153.80
$158.29
$185.07
$191.82
$356.67
$439.80
$480.92
$613.40
$638.79
Drop-out Rate *
6.9
8.7
7.4
3.7
4.3
4.3
3.9
1.3
0.6
1.1
b. Chart
$700.00
$600.00
10
9
8
$500.00
$400.00
7
6
5
$300.00
$200.00
4
3
2
$100.00
$0.00
Appendix 26
1
0

Dropout Rate *
54
9. AISD Middle Schools and High Schools: Private Subsidy Funds (PSF) by percentage of yes
responses to the 2010 Student Climate Survey question I will go to college53
$700.00
100
90
$600.00
80
$500.00
$400.00
70
60
50
$300.00
$200.00
40
30

CS'10 - "will go to college"
yes %
Linear (CS'10 - "will go to
college" yes %)
20
$100.00
10
$0.00
Thus, the raw data indicate that students who are non-white, economically-disadvantaged, at-risk,
and/or have limited English proficiency (in other words, the majority of AISD students) are less likely to
have their public education privately subsidized at a significant level. At the same time, it indicates that,
to the extent a childs public education is privately subsidized, she or he is more likely to succeed.
The extent of this subsidization and its effect on quality of education will become clearer in the
remainder of this report. Statistically, we were able to find indicia of a positive relationship between
private subsidy funds and student outcomes, although it was difficult to separate out the effect in relation
with other factors.54 Certainly, it is a factor that needs to be taken into consideration and studied more.
Our concern here is to call the community and the District to a more equitable distribution of private
resources, one that serves to meet the challenge of providing real opportunity to high-needs children,
rather than aggravating the problem.
The fact that the more affluent and involved parents of wealthier schools can pay out-of-pocket to
bring their public schools up to standard lets AISD ignore the fact that the basic level of education in
the District, absent private subsidization, falls far short of the requirements of the Texas Constitution.
The next section takes an in-depth look at the myth and misuse of the category of educational
enrichment, the sources and challenges of private subsidization, and how subsidization leads to better
outcomes for kids.
53
Student climate survey data was taken from http://archive.austinisd.org/inside/accountability/evaluation/survey_reports.phtml.

54
See statistical regression analysis in the Methodology section.
Appendix 26
55
C. THE ENRICHMENT MYTH

The State of Texas defines the mission of the public education system to:
ensure that all Texas children have access to a quality education that enables them to
achieve their potential and fully participate now and in the future in the social, economic,
and educational opportunities of our state and nation. That mission is grounded on the
conviction that a general diffusion of knowledge is essential for the welfare of this state
and for the preservation of the liberties and rights of citizens. It is further grounded on the
conviction that a successful public education system is directly related to a strong,
dedicated, and supportive family and that parental involvement in the school is essential
for the maximum educational achievement of a child. [emphasis added].55
The State has watered down this quality education definition to a measurement of only three
factors: (1) scores on the Texas Assessment of Knowledge and Skills (TAKS) test, (2) drop-out rate, and
(3) completion rate.56
Each school receives an accountability rating of Exemplary, Recognized, Academically
Acceptable, or Academically Unacceptable, based on these three criteria. A school that receives a score of
Academically Unacceptable for several years in a row is in danger of intervention or closure by the Texas
Education Agency.
The State does not consider its own accountability for the many other factors required for the kind
of quality education outlined in the Texas Education Code. Preparedness for future social, economic, and
educational opportunities must take place in an environment conducive to success, with offerings and
services that address both particular student needs and the whole person in todays dynamic, changing
world. It must begin with genuine and equitable educational opportunities in pre-kindergarten and
continue through high school.
The creation of this educational environment and opportunity includes, from among many factors,
access to technology, quality teachers, extracurricular activities, social networking abilities, effective
intervention programs, and adequate resources to master a rigorous curriculum. The State evaluates none
of these critical factors on a regular, formal basis, or on any basis for that matter.
TEA has an extremely low standard of accountability for itself and for schools. Apart from failing
to consider many important components of education, TEA relies much too heavily on the TAKS test,
which is more lenient than its national counterpart, the National Assessment of Educational Progress
(NAEP). In one example, in Grade 8 reading, 95% of Texas students scored as proficient on the TAKS
test, while only 27% scored as proficient on the NAEP. Again, in Grade 8 mathematics, 79% of Texas
students scored as proficient on the TAKS test, while only 36% reached that level on the NAEP.57
The narrow scope and subpar standards of Texas accountability system masks the differences in
educational environment and opportunities at the school level. Without an adequate assessment of the
quality of education possible at the school level, given available resources, the state system avoids
looking at its own responsibility and failure to provide necessary funding for a quality education.
It is a false and outmoded dichotomy of basic education and enrichment to say that all AISD
schools are well-funded enough to provide for basic education sufficient to pass the STAAR,58 and to
classify the valuable educational components paid by private subsidization as extras that enrich the
educational experience but are not part and parcel thereof.
55
Texas Education Code 4.001.

http://ritter.tea.state.tx.us/perfreport/aeis/2010/glossary.html.
57
58
As of Spring 2012, the State of Texas Assessments of Academic Readiness (STAAR) test has replaced the
TAKS test.
56
Appendix 26
56
As school finance equity studies show, the basic education/enrichment dichotomy ensures
minimal adequacy for some children and excellence for others.59 Austin reproduces this same system
internally as a two-tiered system, divided by the private resource equity chasm.
Sociological, educational, and economic research suggests the categorical distinction between
basic education and enrichment is false and misleading. Investment in educational environment
quality and different measures of educational opportunity, such as those identified by Dr. Bonnie Lesley
and other researchers, cannot fit into one or another category.60
Recruiting and retaining quality teachers, implementing effective intervention programs for highneeds students, ensuring early childhood development and after-school resources and activities to
stimulate and develop the whole person, equipping the classroom with appropriate learning materials and
technology are all interconnected, linked to results, and require resources.
Investment in educational opportunity is not a luxury, but a necessity for attaining the goals of
public education: excellence, quality, equality, and ultimately each childs ability to achieve his or her
potential and fully participate in the social, economic, and democratic life of our local, state, and national
communities.
Educational norms have developed far beyond the old-time three Rs of reading, writing, and
arithmetic. Instead, educators, legislators, researchers, parents, and the State of Texas agree that schools
must focus on educating well-rounded students. This means students who graduate knowing how to use
technology, how to interact socially, how to be involved in their communities, and how to take control of
their education. In short, realization of the childs potential, of new skills and putting them to use, of the
ability to engage in diverse relationships with others and the world around them, of the educational
process itself is the new fourth R.
This section analyzes how specific expenditures made possible by subsidization lead to a higher
quality educational environment and hence better outcomes for students of high-equity schools, and leave
behind students of low-equity AISD schools.
The parents interviewed for this report agreed strongly with this analysis of enrichment. When
asked whether they would still feel their children had a quality basic education, absent the enrichment
they paid for either with fundraisers or out-of-pocket, not a single parent replied yes.61 Rather, they all
said enrichment was necessary to a basic education.
In the words of one principal at a higher-income, high performing high school, if kids are
connected in a non-academic way, through clubs and organizations, they tend to perform better in the
classroom. They are around other students interested in grades, school, and education so their grades
improve. Any time you get kids connected, it tends to improve their performance.62
There is a final troubling implication of the deficient subsidization of poorer schools. Parents and
communities at schools with less private funding have substantially less input into the education their
children receive. With the discretionary spending made possible by private subsidization, communities
can customize and tailor education to their specific needs. They can create a Spanish program at the
elementary level, or launch a Lego Robotics club to encourage kids to get excited about science and
technology. They can recruit reading intervention specialists to make sure struggling elementary students
get off to a strong start. They can show appreciation to their teachers, or even pay the salaries of teachers
of art, music, or other areas cut off by the lack of public funding.
59
Lesley, supra note 4, p. 40 (citing Cortez, A. 2009. The status of school finance equity in Texas, pp. 4 and
11. San Antonio, TX: Intercultural Development Research Association, from http://www.eric.ed.gov/PDFS/ED510074.pdf).
60
Id.
61
Personal interviews (2011).
62
Interview with a school principal (2011).
Appendix 26
57
Meanwhile, the sparse discretionary funds that poorer schools manage to raise are used to buy
pencils and snacks for the STAAR test. (Somehow, AISD does not cover even these expenditures). More
often than not, teachers at poorer school have to reach into their own pockets to purchase these and other
items, and just basic school supplies.
The enrichment made possible by private subsidization is completely integral to a quality
education, which is something owed to every parent, child, and community regardless of race or
socioeconomic status. It is crucial to the realization of the students full potential and to the functioning of
a democratic and economically productive society.
D. HOW PRIVATE SUBSIDIZATION LEADS TO BETTER OUTCOMES FOR SOME STUDENTS
This reports collected data from AISD is hardly unique in showing that more money leads to
better outcomes for kids. In fact, a broad consensus of researchers, including many economists, finds that
investing even moderate amounts of money [in education] results in significant increases in
achievement.63 One scholar, in fact, found that school resources make a bigger difference than student
characteristics in educational achievement.64
What makes private subsidization more contentious, of course, is that it is much less available for
non-white, economically-disadvantaged, and at-risk students. A 1997 U.S. Department of Education
study reviewed existing research on the link between increased economic resources and student
achievement and found that, not only is there a strong correlation between increased economic resources
and increased achievement, but also that additional money matters greatly for minority and
disadvantaged students, but much less or little for advantaged students.65
In addition, where this additional money is spent is especially important. According to Money
Matters, additional funds make the most difference and provide the greatest return on investment in:
Effective teachers;
Small class sizes;
Pre-kindergarten;
Interventions for struggling students, and
Rigorous curriculum and college/workforce readiness, along with adequate and appropriate
learning materials, including technology.
Effective teachers top the list, as they are most fundamental to influencing academic achievement
and providing students with an opportunity to learn. A 2002 Texas study found that, having a highquality teacher throughout elementary school can offset or even eliminate the effects of poverty.66
Moreover, intervention programs are necessary in developing the potential of higher-needs
children, yet are not funded as part of a basic education. Public funding for such programs is
inadequate; and, as of this juncture, there is no way to ensure equitable distribution of private
subsidization for these programs.
Equal educational opportunity demands that the District allocate resources based on need.
Equitable and need-based distribution of private subsidies for intervention programs must be a District
goal.
63

Id. at p. 11.
65
William J. Fowler, Developments in School Finance, 1997: Fiscal Proceedings from the Annual State Data
Conference, July 1997 (Washington, DC: U.S. Dept. of Education, Office of Educational Research and
Improvement, 1998), p.36.
66
64
Appendix 26
58
Another critically important and chronically underfunded quality education component is

technological fluency. The Education Code calls for preparing students for full participation in economic
and educational opportunities in other words, for college or the workforce. But many AISD schools still
lack essential, adequate technology, including computers, science lab equipment, and technical support.
This lack of technology is especially problematic at poorer, lower-equity schools because
students living in poverty are much less likely to have access to computer technology at home. It is absurd
to expect students to be ready for college research or non-menial employment without computer skills.
This problem will only become worse and more problematic as time passes and the economy becomes
ever more reliant on technology.
According to 92% of Texas teachers, access to quality curriculum materials and technology is
either absolutely essential or very important to teacher retention.67
Technology is an area where subsidization makes a significant difference. We spoke to parents at
schools to determine if our data and their experiences matched up. What we found did not surprise us. We
asked a standard question of all interviewees: If your school had an extra $200 per student in
discretionary, non-instructional funds, what would you do with it?
The PTA president at an elementary school prioritized technology and reading assistance. Her
goal was to provide one set of computers for every grade level. As of now, the students only have access
to two sets of computers that the entire school must share. She would also hire a technology person for
maintenance and routine updates for the computers.
AISD does not provide this assistance. Yet, many of the wealthier schools are able to subsidize
their own tech person where poorer schools only see someone at the tech support desk once a year.
Parents recognize the great need for up-to-date technology and support.
E. WHAT PRIVATE SUBSIDY FUNDS BUY IN AISD SCHOOLS:
SPECIFIC SCHOOL ACTIVITY LEDGER COMPARISONS
To see what difference private subsidization makes in education, we broke down schools by level
elementary, middle, and high and then chose several schools at each level, which were representative
of the high and low subsidy ends of the spectrum. We then analyzed their activity ledgers by account to
ascertain the difference in revenue and expenditures for programs common to all schools, as well as to
determine which programs were only available at certain schools.
As one can see below, there is an inverse relationship between the private subsidy funds and the
percentage of economically-disadvantaged students. That is, for the greater the amount of private subsidy
funding per student, there is a lower percentage for economically-disadvantaged schools.
Therefore, the schools with the greatest percentage of economically-disadvantaged students have
access to the least amount of resources. According to the Equity Center, Excellence is impossible to
achieve without equity since equity includes both equitable funding and also equitable access to effective
teachers and to opportunities to learn.68
Our current system offers the least resources to children who are in need of them the most, and
that constitutes the majority of Texas children.69 According to a 2010 study by the Center for Public
Policy Priorities, more than 60% of Texas children are eligible for the free/reduced lunch program.70
In 1997, the National Center for Education Statistics also examined the correspondence between
money and student achievement from existing research and found that unequivocally, the evidence
67
Id. at pp.30-34.
Id. at, at p.2.
69
Id.
70
Id. at p.4 (citing The State of Texas Children 2009-2010, 24, Center for Public Policy Priorities (2010), at
http://cppp.org/factbook09/tkc_2009_10.pdf).
68
Appendix 26
59
supports the thesis that additional money matters greatly for minority and disadvantaged students, but
much less or little for advantaged students.71
4. Elementary Schools: Inequity Begins Early On in Education
The elementary schools, which this report analyzed in further detail, were Winn, Graham, and
McBee at the lower-tier private subsidy level; and Kiker, Highland Park, and Mills, at the higher-tier
private subsidization level.72 These six schools had the most and least PSF/student per year:
Elementary School
Winn
Graham
McBee
---Mills
Highland Park
Kiker
Total students over 5 years

2529
3414
3659
5-year average private subsidy per student

$ 22.34
$ 29.86
$ 30.43
4953
2984
3958
$ 513.66
$ 561.85
$ 571.43
As already noted, effective teachers are among the most important reasons for student success.
According to Dr. Lesley and other researchers, the number one factor in a teachers retention is working
conditions at a school.73
Even something as simple as clean school facilities contributes to teacher retention.74 In this way,
subsidization, which helps pay for both faculty development and faculty appreciation, buys better
outcomes for students by helping schools retain better teachers those who can afford to be selective
about choosing the schools where they teach.
Below is the amount of private subsidy funds spent on staff or faculty development at the mostsubsidized and least-subsidized elementary schools over the last five years75:
Elementary School
Category
Expenditure
Private Revenue
Graham
Staff Development
$ 4,665.41
$ 4,034.8176
McBee
Winn
Staff Development
Faculty Development
$ 4,139.22
$ 9,409.53
$ 5,403.97
$ 6,313.96
Mills
Highland Park
Kiker
Staff Development
Staff Development
Faculty Development
$20,865.08
$31,710.18
$55,319.27
$24,366.99
$48,808.58
$86,657.30
Another subsidized account, typically called a Social Committee or a Courtesy or Hospitality

account, depending on the school, includes what one would normally call teacher appreciation. It pays
for flowers, gifts, and food at retirement parties, bereavements, teacher-of- the-year awards, and even
71
Id. at p.12.
We excluded Pease (an outlier, transfer-only school) and Lee (its accounting system was much different than
that of the comparison schools).
73
Lesley, supra note 4, at pp.15-17.
74
Id. at p.16.
75
Note that the expenditure date used in this table and similar tables throughout the rest of the chapter represents
the total amount spent over a nearly five-year span from the 2006-07 school year to April of the 2010-11 school
year, when these records were disclosed.
76
Sometimes, some local school ledgers, as here, reflect higher expenditures than income. The reasons are not
clear from the ledger. Perhaps there is carry-over from the previous year.
72
Appendix 26
60
jewelry for a teacher in one case. This amount varies widely by school, and likely has an important effect
on teacher happiness and retention:77
Elementary School
Winn
Graham
McBee
Highland Park
Mills
Kiker
Category
Social Committee
Courtesy
Courtesy
Courtesy
Courtesy
Social Committee
Expenditures
$ 1,476.11
$ 2,335.09
$ 5,283.86
$ 8,805.44
$ 9,122.46
$14,636.61
Private Revenue
$ 1,995.65
$ 2,564.17
$ 6,500.01
$11,780.70
$12,259.24
$17,085.11
Logic would argue that the schools with higher private subsidy funds tend to have greater teacher
retention and, as a corollary, more experienced teachers. And the data confirms this belief.
Elementary School
McBee
Winn
Graham
Kiker
Highland Park
Mills
Avg. Teacher Experience (Years)

(from AEIS data 2006-11)
8.1
8.4
9.1
13.4
15.1
15.3
Yet, another key account for student success is the Library Fund. The revenue in this account
generally comes from book fairs and is used to update the school library with new, quality books.
In the words of one PTA president, commenting on the difficulty of launching a successful book
fair at a lower-income school without a high level of parental involvement or disposable income, How
can you have educated kids without enough books or the right books in the library?78
Elementary School
Winn
McBee
Graham
Highland Park
Mills
Kiker
Category
Library
Library
Library
Library
Library
Library
Expenditures
$ 12,023.89
$ 5,866.33
$ 25,285.02
$ 31,235.99
$ 87,188.00
$131,085.48
Private Revenue
$ 20,086.22
$ 25,228.21
$ 30,076.22
$ 53,351.08
$113,167.47
$177,047.96
A further interesting source of comparison is the Art and Music accounts, found in nearly every
schools private subsidization ledger.
77
Holiday and end-of-the-year gifts are different for teachers in higher/lower-equity schools. Teachers in higherequity schools often receive substantial gifts, such as movie theater, restaurant, salon, or store gift certificates, for
example.
78
PTA President, personal interview (2011).
Appendix 26
61
Elementary School
Winn
Mills
Graham
McBee
Highland Park
Kiker
Category
Art
Art
Art
Art
Art
Art
Expenditures
$ 1,073.94
$ 3,201.41
$ 4,449.78
$ 2,927.46
$ 68,580.51
$174,792.47
Elementary School
Category
Expenditures
McBee
Music
$ 1,388.25
Graham
Music
$ 1,847.49
Winn
Music
$ 3,470.00
Highland Park
Music
$ 9,680.21
Kiker
Music
$ 17,983.44
Mills* (two programs) Music
$ 3,922.75
Mills*
Choral Music
$ 24,273.44
Appendix 26
Private Revenue
$ 2,103.94
$ 4,394.62
$ 6,567.80
$ 9,441.52
$ 87,787.98
$210,178.63
Private Revenue
$ 1,388.25
$ 2,383.56
$ 5,058.65
$11,631.61
$24,003.02
$ 4,816.45
$36,367.77
62
More Affluent, Higher-Equity
Elementary School Activities (45):
After School Child Care (HP)
Afterschool Program (M)
Astronaut Club (K)
Campus: Building (HP)
Campus: Landscape (HP)
Campus: Tennis Courts (HP)
Character Education (HP)
Chess Club (HP, M)
Courtyard (K)
Destination Imagination (K)
Early Childhood (K, M)
Flight Club (M)
Intramurals (M)
Literacy (HP, M)
Lego Robotics Club (K)
Mars Camp (M)
Math 362 (M)
Math Pentathlon 1 (HP)
Math Pentathlon I and III (K)
Multi-Cultural Star Program (M)
Pals (K)
Photo Club (K)
Pre-K Afterschool Care (M)
QSP Fundraiser (K)
Roaring Readers (M)
Robotics Club (M)
Safety Patrol (K)
SBS Unit (HP)
School Year Voyager (K)
SCORES Unit (HP)
Social Activity Dance (K)
Social Activity Golf (K)
Spanish (HP)
Spanish Club (M)
Special Area Teacher (M)
Student Field Trips (M)
Summer Camp (HP)
Summer Voyager (K)
Technology (HP, K, M)
Track (HP)
Volleyball (M)
-----------------------------------------Poorer, Lower-Equity Elementary

School Activities (4):
Band (W)
CATCH Program (W)
Exxon Mobile Grant (W)
Safety Patrol (Mc)
Special Areas (G)
There is wide consensus that arts courses are an essential

component of education and a requirement for personal development,
contributing to spatial reasoning, analytic abilities, and even learning
certain math skills, among other things.79 Former U.S. Secretary of
Education Rod Paige called cuts to public school arts education
disturbing and just plain wrong.80 Unfortunately, AISD considers
funding these types of special area programs to be enrichment.
As AISD cut teachers in these areas, some high-equity schools
are able to subsidize teachers salaries and retain them, while lowequity schools were not so lucky.81
a. After School Programs
In addition to creating school-day advantages, private subsidies
also fund an extended school day. The more money parents can spend
on school-affiliated aftercare programs, the more these programs come
to resemble an extended learning experience rather than an inexpensive
childcare (babysitting) option for parents who work late.
Kiker Elementarys after-school program, Voyager, is a
themed learning experience, with topics like Fairy Tales and
Mythology, Cowboys, and T-Rex. It includes homework time, crafts,
and supervised play, as well as additional computer time, which helps
develop technological fluency all administered by certified teachers
to provide an enriched, hands-on curriculum, for the fee of
$240/month.82 Thats more than the three low-equity schools have for
each student for an entire year, including voluntary parent expenditures
like after-school tuition.
b. Student Retreats
Both Kiker Elementary and Highland Park Elementary, two of
the three high-equity elementary schools we looked at, used private
money to underwrite a retreat at Camp Allen for 5th graders. Highland
Park spent $77,691.00 over five school years. Kiker also spent about
that amount, though its money for this purpose was not in a separate
account and so was difficult to calculate exactly.
For one year, however, Kikers retreat cost $11,130.00 for 121
students, nearly $100/student, which was still far more than many
elementary schools, including the three comparison schools (Winn,
Graham, and McBee) can spend per student per year total, including
such essentials as STAAR test snacks.
Undoubtedly, this several-day leadership camp contributes to a
feeling of an educational community as well as preparedness for middle
school success, a sort of capstone experience to elementary school. The
Kiker PTA newsletter best describes its value:
79
See, for example, Critical Links, a compendium of research sponsored by the U.S. Department of Education
and National Endowment for the Arts on the links between arts education and cognitive and social development, at
http://www.artreachsandiego.org/research/CriticalLinks.pdf.
80
http://www2.ed.gov/teachers/how/tools/initiative/updates/040826.html.
81
Interview with a school principal (2011).
82
Details on Voyager program. http://kikerpta.org/programs/voyager-after-school.
Appendix 26
63
This annual Kiker tradition is a favorite for students and parents alike. The purpose of the
trip is to foster the elementary students sense of independence as they begin to see
middle school on the horizon. The students are taught team building, problem solving and
survival strategies, while enjoying traditional camp fun.83
The problem is not the existence of these programs. They add needed quality and value to the
education of students at Kiker, Highland Park, and other high-equity elementary schools. The problem is
that there are no comparable alternatives offered at low-equity schools and no way for students at these
schools to access them.
The comparison of activity accounts funded at high-equity schools versus low-equity schools,
shown in the preceding sidebar,84 is a staggering illustration of the extreme inequality of elementary
education within the District. It is unacceptable to make such a small investment in this crucial level of
education, which determines so much of student success further down the road. Two-tier school
disparities build the wall of a two-tier society.
With such a vast disparity in resources available at the school level, it is impossible to have
reliable measures of student outcomes. Or, to put it another way, only when poor schools can provide
equivalent access to a quality educational environment and opportunities will those measures have
meaning, and we can adequately assess the relationship between resources and outcomes.
5. Middle Schools: The Inequity Continues
The private subsidy disparities extend beyond AISD elementary schools to the middle schools.
This report will focus on the three middle schools with the highest subsidization funding (Small, O.
Henry, and Bailey Middle Schools) and the three with the lowest subsidization funding (Burnet, Mendez,
and Pearce Middle Schools).
For comparison, the average yearly enrollment and the average private subsidy, per student per
year for each of the elementary schools over the past five school years show:
Middle School 5-Year Total Students 5-Year Average Private Subsidy Per Student
Burnet
4862
$ 64.67
Mendez
4748
$ 80.23
Pearce
2648
$ 81.13
Bailey
5518
$324.68
O. Henry
4705
$349.74
Small
5389
$364.32
Again, as expected, there is an inverse relationship between the private subsidy funds (PSF) and
the percentage of economically-disadvantaged students. That is, for the greater the amount of private
subsidy funding per student, there is a lower percentage for economically-disadvantaged schools. Bailey
Middle School, with the highest PSF, has less than a third of economically-disadvantaged students, and
30.8% less than Burnet Middle School, which has the lowest PSF and 94.5% economically-disadvantaged
students.
83
Kiker PTA Newsletter (October 2007).

This includes only accounts found in high-equity schools, but not low-equity schools, and vice versa. It does
not include the accounts found in all schools, like General Student, grade level accounts, and any accounts listed
above, such as Library and Courtesy.
84
Appendix 26
64
Middle School PSF/Student per Year At Risk % 09-10 Economic Disadvantage %

Burnet
$ 64.67
76.3
94.5
Mendez
$ 80.23
80.9
94.1
Pearce
$ 81.13
79.9
96.3
Bailey
$324.68
31.4
30.8
O. Henry
$349.74
36.1
38.9
Small
$364.32
29.3
28.5
There is a nearly $300 gap between the least subsidized school, Burnet Middle School, which
receives a private subsidization of $64.67/student per year, and the most subsidized school, Small Middle
School which receives a private subsidization of $364.32/student per year. As they did in elementary
school, children from middle schools at the higher private subsidization level have more access to lower
class sizes, quality teachers, technology, and a multitude of after school activities.
Below is the amount of private subsidy funds spent on staff or faculty development at the most and
least subsidized middle schools over the last five school years:
Middle School
Category
Expenditure
Private Revenue
Burnet
Staff Development
$8,976.02
$9,582.98
Pearce
Staff Development
$10,883.92
$11,550.79
Mendez
Staff Development
$31,625.59
$31,727.95
Bailey
Staff Development
$26,444.17
$35,557.96
Small
Staff Development
$44,901.09
$56,214.78
O. Henry
Staff Development
$130,376.60
$153,502.86
Again, the teacher appreciation subsidized account, referred to as Courtesy, Social Committee,
or Hospitality, pay for things such as flowers, gifts, food at retirement parties, bereavements, and teacherof-the-year awards.
There are substantial gaps between the totals of the most and least privately subsidized schools.
These amounts are likely to affect teacher satisfaction and thus teacher retention rates. Effective teachers
are fundamental to providing a quality education.
Middle School
Mendez
Pearce
O. Henry
Small
Bailey
Burnet
Category
Courtesy
Hospitality
Courtesy
Courtesy
Hospitality
Courtesy
Expenditures
$
14.55
$ 1,610.49
$ 2,928.81
$ 6,194.31
$ 6,016.75
$10,078.84
Private Revenue
$
29.10
$ 2,310.94
$ 4,388.66
$ 8,097.99
$ 8,129.22
$14,566.78
Once again, as in the elementary schools, increased private funds for staff development and
hospitality or courtesy tend to correlate with more experienced teachers.
Appendix 26
65
Middle School Avg. Teacher Experience (Years) (from AEIS data 2006-11)
8.5
Mendez
9.1
O. Henry
9.6
Pearce
10.2
Bailey
10.5
Burnet
13.8
Small
Another account tied to student success is the library fund. This revenue in this account is
generated from book fairs and is used to update the school library with new and quality books.
Middle School Category
Expenditures
Private Revenue
Pearce
Library
$13,861.17
$20,357.14
Mendez
Burnet
Small
O. Henry
Bailey
Library
Library
Library
Library
Library
$3,366.96
$34,183.89
$38,506.60
$54,807.19
$72,953.58
$28,290.41
$43,935.62
$44,331.03
$67,569.75
$80,934.97
The art and music accounts found in each schools private subsidization ledger were also an
interesting source of comparison because art influences self-directed learning, improves attendance, and
cultivates critical and creative skills that are essential in a shifting global economy.85
Middle School
Pearce86
Mendez
Burnet
Bailey
O. Henry
Small
Category
Expenditures
Choral Music
Choral Music
Choral Music
Choir
Choral Music
$10,424.51
$12,758.06
$63,683.45
$67,442.16
$80,660.02
Middle School
Small
Pearce
Burnet
Mendez
O. Henry
Bailey
85
Category
Art
Art
Art
Art
Art
Art
Expenditures
$1,224.26
$ 785.95
$3,650.00
$4,349.16
$21,674.81
$23,105.29
Private Revenue
$13,366.00
$13,403.62
$72,631.42
$77,134.79
$89,134.46
Private Revenue
$1,107.30
$1,311.47
$6,620.75
$8,154.59
$27,483.96
$28,667.19
Importance of Arts Education, http://www.educationfund.org/programs/artoffoundobjects/importanceofartseducation/ (2007).

86
The data could not be found in the activity ledger accounts to support the existence of a choral program at
Pearce Middle School.
Appendix 26
66
More Affluent, Higher-Equity
Middle School Activities (80):
Algebra Fund (OH)

After-School Programs (S)
Athletic Uniform (OH)
Booster Club Athletics (Ba, S)
Booster Club Band (Ba)
Booster Club Bear Dads (Ba)
Booster Club Choir (Ba)
Booster Perform & Visual Arts (BA)
Color Guard (Ba)
Cheer Camp (S)
Cougar Success Initiative (S)
Cougar Tales (S)
Dance Camp (S)
Environmental Club (Ba, OH)
Family Career Consumer Leaders (S)
Fellowship of Christian Athletes (Ba)
Foreign Language (Ba, OH)
French Club (Ba, S)
Future Teachers of America (Ba)
German Club (Ba)
Golf (OH)
Golf Team (OH)
Grants (OH)
Greenhouse (S)
Health Class (*) (Ba, OH)
LaCross [sic] Club (Ba)
Latin Club (S)
Library Book Club (OH)
Life Skills (Ba, S)
Locks (OH)
Lunch Bunch (Ba)
Marquee (S)
Math (Ba, OH)
Math Club (S)
Math Counts (Ba)
Monarch Project (S)
Mosaic Club (OH)
Motorola Girl Start (OH)
Mustang Club (OH)
Mustang Day (OH)
Native Plants (S)
Native Plants/Animals (Ba)
O. Henry History Day (OH)
Outdoor Habitat (S)
Partners in Education (Corporate
Sponsorships) (OH)
Pep Squad (Ba, OH)
Picture (S)
Photography, Photojournalism (OH)
Photo Journalism (S)
PTA Scholarship (OH)
Scholarship 1 (S)
School Newspaper RollingStone
(OH)
Seedfolks Grant (S)
Self-Contained Fundraiser A (S)
Shop-Manufacturing Class (Ba)
Skate Club (Ba)
Soccer Team (OH)
Spanish (Ba)
Appendix 26
Sp Ed Cougar Caper (S)

Spirit Cards (OH)
Spirit Club (OH)
Special Projects ($31,000) (Ba)
Student ID (Ba)
Teacher of the Year (S)
Tech Ed Fund (OH)
Tech Know (S)
Technology (Ba, OH)
Technology Education (S)
Technology Explorers (S)
Tennis Club (Ba)
Theater (S)
Tutoring (S)
Track & Field (S)
Transition (OH)
Transition Camp (S)
Ultimate Frisbee (OH)
Volleyball Camp (S)
Write Thing Grants (S)
--------------------------------------------
Poorer, Lower-Equity
Middle School Activities (43):
4 H Club (M)
Adopt A School (Bu)
African American Heritage Club (M)
Applied Materials Grant (P)
Arts and Crafts (Bu)
AVID II (Bu)
AVID Activity Fund (P)
Booster Club Band (M)
Business Professors of America (P)
Campus/Clean Campus Club (Bu)
Clothing (M)
Communities in School (Bu)
ESL (Bu, M, P)
Faculty T-Shirts (Bu)
Family/Consumer Science (M)
Family Resource Center (M)
Future Homemakers of America (Bu)
Future Teachers (Bu)
Guitar (M)
Journalism (P)
Junior ROTC (M)
Life Skills (P)
Literacy Club Writer Block (Bu)
Maverick Book Club (M)
Museum Club (M)
Parent Involvement (Bu)
P.E. Uniforms (P)
Pep Squad (Bu)
Pre-Vocational Job Training (Bu)
School Events Committee (M)
School-Wide Fundraiser (Bu)
Science Club (Bu)
Science Fair (M)
Science Family Fun Night (Bu)
Science Inquiry (Bu)
Skills for Living (Bu)
Soccer (P)
Student Reward Donations (P)
Student Store (P)
Technology (Bu)
Tennis (Bu)
Vocational Education (Bu)
Volleyball (Bu)
When asked if each student were given an

extra $1000 of private funding per year to be spent
on areas outside of instruction, leadership and
everything else paid for by public money, one of
the school principals we interviewed concluded that
the school would use the money toward providing
more teachers to lower class sizes, purchasing
supplemental
technology
and
instructional
materials and paying teachers to sponsor clubs.
The principal also emphasized that the
school would use the money toward the fine arts
and he affirmed that their middle school highly
valued fine arts programs, such as band, choir,
orchestra, and dance, as invaluable components to
an education.
After-School Programs
The higher-equity middle schools, Small, O.
Henry, and Bailey, have eighty privately funded
additional extra-curricular school activities while
poorer, higher-needs Burnet, Mendez and Pearce
middle schools, have forty-three additional
programs. The highest private resource income
school, Small Middle School, has thirty-five extracurricular activities, more than triple the amount of
one of the lowest income schools, Pearce Middle
School, with ten activities. Evidently, these
wealthier schools are able to provide a diversity of
extended school day programs in comparison to the
lower-equity schools.
Bailey Middle School makes a point to team
teachers together with students to raise money for
additional clubs, such as music and video game
clubs.
An administrator of a privately subsidized
middle school couldnt imagine not having private
fundraising money, and looked to the PTA for a
number of things, including helping out the science
and math departments and purchasing technology,
specifically innovation stations that provide a
projector and surround-sound that brings classroom
learning to life.
Another administrator of one of the most
privately subsidized middle schools reported that
money raised from private fundraising goes toward
hiring additional teachers and purchasing
technology,
instructional
materials,
and
consumables for science class, such as frogs to
67
dissect. These materials add depth to the classroom educational experience. Like the earlier middle school
administrator, this one reported that private money makes all the difference in the world, and even then
it is not enough.
Both administrators agreed that lower class sizes and technology are critical to an adequate
education. Yet, to manage lower class sizes, a school has to have more teachers.
Having previously worked at one of the least subsidized middle schools, one administrator
observed that the current campus is staffed with teachers who devote more time to students success,
which makes all the difference to student achievement outcomes. Teachers volunteer extra time to build
and run fundraising events for extracurricular activities, clubs, technology, and additional teachers.
When asked what a school should do with an additional $1,000 in private funding per student per
year, a person associated with a higher-equity school suggested putting the money toward getting students
out to experience museums, visiting businesses, and doing other such field trips because these
extracurricular, outside-of-the-classroom experiences, were important to a childs education.
The higher-equity middle schools are able to use extra thousands of private dollars for clubs and
organized extracurricular programs, such as cheer, dance, golf, environmental, science, math, and mosaic
clubs, Christian Athletes, foreign language (French, Spanish, and German), health, life skills,
photojournalism, theatre, ultimate Frisbee, and even A Rolling Stone Newspaper Club. Further, these
higher-equity middle schools have a Library Book Club in addition to their library fund. All three schools
also have Math Clubs whereas the three low-equity middle schools have none.
It would be difficult to dispute the potential importance of these programs on the lives of young
students. Any one of them has the capacity to ignite a spark of interest in the arts, music, a foreign
language, science, writing, or dance and inspire the musicians, Broadway actors, ambassadors, scientists,
and writers of our future.
Ken Robinson, an internationally recognized leader, author, and speaker in the development of
education, argues that creativity is just as important as literacy. He stresses the personalization of
education in which we can build achievement on discovering the individual talents of each child, to put
students in an environment where they want to learn and where they can naturally discover their true
passions.87
Each child has his or her own individual potential that can be tapped into through clubs and
organizations such as these that have the ability to foster a childs dream in a way often not found at
home.
Even a simple Life Skills Club can cultivate a world of opportunities for young students to learn
how to function in the real world, whether that means balancing out a checkbook, making a budget, filling
out job applications, or learning basic communication skills. To fulfill their potential, whatever that may
be, and educate them in basic life skills not only benefits the children themselves but our community:
Education has the possibility of making both the individual receiving it and others better
off. A more educated society may lead to higher rates of innovation and invention, make
everybody more productive by helping firms introduce new and better production
methods, and lead to more rapid introduction of new technologies.88
Parents in high-equity schools also organize and operate booster clubs and bring in additional
money for equipment and develop support for student programs. The high-equity middle schools,
particularly Bailey, have several booster clubs, including band, Bear Dads, choir, and the performing and
visual arts. Mendez is the only low-equity middle school that has a booster club.
87
Ken Robinson, The Element: How Finding Your Passion Changes Everything (Viking Adult 1st ed. 2009)
Eric A. Hanushek, Why Quality Matters in Education. 2 Finance and Development 2 (June 2005), at
http://www.imf.org/external/pubs/ft/fandd/2005/06/hanushek.htm.
88
Appendix 26
68
The lack of booster clubs reflects the shortage of parental involvement in the low-equity middle
schools. The parents in these schools often lack the time and skill to develop and run supplementary
programs such as booster clubs. Many parents must work two or three jobs to merely provide for their
families.
There is yet another facet of this analysis.
In Bilingual Education: A Critique, Peter J. Duignan writes, High dropout rates for Latino
students, low graduation rates from high schools and colleges have imprisoned Spanish speakers at the
bottom of the economic and educational ladder in the United States.89 With limited English proficiency,
students are more likely to fall behind, which inevitably increases their risk of dropout.
As one can see below, using 2009-2010 school year data, the lower the amount of private subsidy
funds, the higher the percentage of limited English proficient students:
Middle School
Burnet
Mendez
Pearce
--Bailey
O.Henry
Small
PSF/ Student Per Year

$ 64.67
$ 80.23
$ 81.13
Limited English Proficiency % 09-10

43.3
46.5
41.1
$ 324.68
$ 349.74
$ 364.32
4.5
8.2
5.7
Not only this, but the least-subsidized middle schools also have the highest percentages of
minority students, a vestige of segregation in Austin.
Middle School
Burnet
Mendez
Pearce
--Bailey
O. Henry
Small
% White 09-10
5.2
1.0
1.1
45.1
47.9
55.8
% Minority 09-10
94.8
99.0
98.9
54.9
52.1
44.2
CS 10 will go to college yes %

55.0
54.0
63.0
82.0
80.0
83.0
Thus, schools that need these resources the most to educate a substantial body of both minority
and limited English proficient students have the least amounts of private subsidy funding to do so.
6. High Schools: More Inequity
Of AISD high schools,90 those with the highest PSF per student are Anderson, Bowie, Austin,
McCallum, and LBJ. The low-equity high schools are Reagan, Travis, Lanier, Crockett, and Akins High
Schools.
For comparison, this chart shows the enrollment and average private subsidy per student per year
for each of the high schools over the past five school years:
89
Peter J. Duignan, Bilingual Education: A Critique, Hoover Institution Stanford University Publications
(September 1998).
90
This does not include magnet programs or other specialized high-school level programs located in a specific
high school or the Ann Richards Academy for Women Leaders.
Appendix 26
69
High School
Reagan
Travis
Lanier
Crockett
Akins
--L. B. Johnson91
McCallum
Austin
Bowie
Anderson
Enrollment 06-11
4,503
7,107
7,675
9,050
12,695
AVERAGE
PSF/student per year

$120.23
$153.80
$158.29
$185.07
$191.82
5,796
8,663
11,309
14,015
10,277
$356.67
$439.80
$480.92
$613.40
$638.79
9,109
$333.88
When averaged, the lowest private subsidized school Reagan High receives almost a third less than
the average PSF and more than a fifth less than the PSF of Anderson High, the highest subsidized school.
a. Academics, Arts, and Athletics
Extra funds play a huge role when it comes to the high school level. Subsidization helps to
support extra-curricular programs such as athletics and artistic programs -- that boost college-bound
rsums. Subsidization also helps support the retention and hiring of quality teachers in both specialized
and higher-level courses, such as APs, which allow college-bound students to attain college credit while
still in high school. These two areas of pre-college preparation are crucial to providing students with areas
in which to excel and prepare the groundwork for a successful career after high school.
Unfortunately, there is a dramatic difference in the type and quantity of extracurricular and
advanced programs available in high schools at varying private subsidization levels within AISD. To
show this disparity, information was taken and analyzed from the lowest and highest subsidized high
schools Reagan and Anderson, respectively.
Reagan and Anderson provided financial activity ledgers in response to a Public Information Act
request. Included in this data was information on the beginning balance for the schools as a whole and for
individual programs within the schools, taken as of March 1, 2010. This information provides, essentially,
a snapshot of the amount of cash on hand for the school and for individual programs within the school.
We have categorized some of these programs as academic, artistic or athletic in nature. While the data
provides only a snapshot of the finances as they existed on a particular day, it is illustrative of the
discrepancy both in the extent to which different programs are proportionally funded and the wide gap in
total dollars available to low-equity and high-equity high schools.
Programs
Academics
Arts
Athletics
Total Beginning Balance
Overall Budget
91
Reagan High
$ 1,109.96
$ 9,507.36
$11,243.33
$21,860.65
$45,584.21
Anderson High
$145,698.33
$ 58,891.86
$ 93,601.81
$298,192.00
$538,106.82
LBJ High School in East Austin has a magnet program and a non-magnet program in one building. The
magnet school draws students from all over Austin, while the non-magnet school has mainly local students. See
http://www.lasaonline.org/index.jsp.
Appendix 26
70
This means that 48% of Reagan Highs cash on hand 48% and 55.4 % of Anderson Highs cash
on hand, respectively, was earmarked for areas related to academics, arts, and athletics; but the variances
in amounts spent was as stark as night and day.
(1) Academics
In the chart above, academic areas were determined according to their function from the records
we obtained. National Honor Society, Student Council, IB Program, German Club, and other Honor
societies, for instance, are types of programs that fall into this sector.
At Reagan High, only seven programs appeared related to academic achievement or enrichment.
Of those, four contributed to the beginning budget quoted above, or to 2.4% of Reagan Highs overall
beginning budget.
At Anderson High, 57 programs were coded as related to academic achievement or enrichment.
Of those, 36 contributed to the beginning budget quoted above, or to 27.1% of Andersons overall
beginning budget.
There was also a wide disparity when it came to AP test financing. Anderson High School
brought in $52,863 in AP testing fees and $29,589 in IB testing fees. Reagan High brought in $0 for both
types of testing.
(2) Arts
As this report demonstrates, a schools support of the arts decreases along with its PSF. This is
the case at the high school level.
In the chart above, programs were recognized by their artistic nature. Band, choir, drama, and
orchestra comprise some of the programs in this area.
At Reagan High, only three programs were artistic in nature. Of those, all contributed to the
beginning budget quoted above, which comprised 20.9% of their total beginning budget. The one booster
club, band, began with a budget of $39.71 and raised $2,053.00 last year.
At Anderson High, six programs appeared as artistic in nature. Of those, all contributed to the
beginning budget quoted above, which comprised 10.9% of their total overall budget. Two booster clubs
choir and theater began with a combined budget of $11,093.91, and raised $13,702.82.
(3) Athletics
In the chart above, volleyball, basketball, coach professional development, and JROTC are
examples of athletic programs available.
At Reagan High, fifteen athletic activities were identified. Of those, all fifteen contributed to the
beginning budget quoted above, which comprised 24.7% of Reagans overall budget.
At Anderson High, 21 athletic activities were coded. Of those, all 21 contributed to the beginning
budget quoted above, or to 17.4% of Andersons overall beginning budget. Anderson also had an active
booster club for 17 of its athletic programs, which had a total beginning budget of $177,246.50 and which
raised an additional $211,260.30 last year.
Reagan High had no booster club support for its athletic programs.
So not only does Reagan High have fewer academic, artistic, and athletic programs to offer its
students, but many of the programs it does maintain have little, if any, beginning budget to support them.
Perpetuation and financing of even these programs falls directly on the shoulders of their constituents,
who are significantly more likely to be underprivileged or poorer families and less able to support them.
Yet, these are students who would currently benefit most by being able to participate in these
programs, for there is a strong correlation between college preparedness and PSF, which is tied directly to
the school districts ability to support academic and non-academic extra-curricular programs. The lack of
Appendix 26
71
such programs at the high school level has a profound effect on a students belief about whether he or she
will attend college or feels prepared for college, as seen in earlier charts and graphs.
Therefore, the lack of extra funds at the high school level produces a cycle of insufficient and
emaciated academic performance in students, who live and study in those environments. The continuance
of these practices is clearly unhealthy and, as already noted, provides an unreliable measure of student
outcomes and of each students individual potential, both in AISD and beyond.
The State of Texas defines the mission of the public

education system to:
ensure that all Texas children have access to a
quality education that enables them to achieve their
potential and fully participate now and in the future
in the social, economic, and educational
opportunities of our state and nation. That mission is
grounded on the conviction that a general diffusion of
knowledge is essential for the welfare of this state and
for the preservation of the liberties and rights of
citizens. It is further grounded on the conviction that
a successful public education system is directly
related to a strong, dedicated, and supportive family
and that parental involvement in the school is
essential for the maximum educational achievement
of a child.
[emphasis added].
Texas Education Code 4.001
Appendix 26
72
Appendix 26
73
APPENDIX IV
ADDITIONAL CHARTS AND GRAPHS
Appendix 26
74
Appendix 26
75
Private Subsidy Funds in AISD Middle Schools, 2006-2011

ID
046
058
048
053
055
043
051
054
061
045
044
057
052
059
047
060
Middle School Total private RE PSF adjustedl Enrollment 06-11* PSF per student per year
Burnet
$288,446.05
$314,406.19
4,862
$64.67
Mendez
$349,464.87
$380,916.71
4,748
$80.23
Pearce
$199,764.89
$217,743.73
2,684
$81.13
Webb
$288,123.42
$314,054.53
2,838
$110.66
Dobie
$319,836.16
$348,621.41
3,150
$110.67
Fulmore
$534,675.08
$582,795.84
5,096
$114.36
Martin
$445,752.07
$485,869.76
3,529
$137.68
Bedichek
$711,077.12
$775,074.06
5,363
$144.52
Paredes
$687,026.27
$748,858.63
4,808
$155.75
Lamar
$505,532.82
$551,030.77
3,464
$159.07
Kealing
$1,344,880.42 $1,465,919.66
6,171
$237.55
Covington
$1,026,886.59 $1,119,306.38
4,653
$240.56
Murchison
$1,402,357.22 $1,528,569.37
6,043
$252.95
Bailey
$1,643,645.28 $1,791,573.36
5,518
$324.68
O. Henry
$1,509,664.28 $1,645,534.07
4,705
$349.74
Small
$1,801,217.42 $1,963,326.99
5,389
$364.32
AVERAGE
$816,146.87
$889,600.09
4,564
$183.03
Private Subsidy Funds in AISD Middle Schools, 2006-2011
$400.00
$350.00
$300.00
$250.00
$200.00
$150.00
$100.00
$50.00
$0.00
Appendix 26
76
ID
Elementary School
157
159
165
160
150
161
174
162
118
145
124
102
126
175
109
108
141
163
111
130
125
171
144
101
127
168
116
178
106
149
120
156
142
139
114
176
140
133
164
132
129
122
107
105
136
151
172
Winn
Graham
McBee
Linder
Norman
Cook
Rodriguez
Houston
Harris
Zavala
Metz
Andrews
Ortega
Widen
Brown
Brooke
Walnut Creek
Hart
Campbell
Pleasant Hill
Oak Springs
Palm
Wooten
Allison
Sanchez
Langford
Govalle
Barbara Jordan
Blanton
Barrington
Joslin
Odom
Allan
Sims
Dawson
Galindo
Travis Heights
Ridgetop
Pickle
Reilly
Pecan Springs
Maplewood
Brentwood
Blackshear
St. Elmo
Pillow
Kocurek
Appendix 26
Total PSF
51,838.53
93,512.11
102,158.37
136,805.14
71,465.33
156,955.82
174,828.23
176,861.17
138,241.73
84,291.49
117,593.14
130,187.77
57,983.19
174,803.03
111,831.17
86,989.70
201,401.85
193,758.22
87,847.70
158,229.89
76,857.38
170,350.21
176,908.32
141,524.89
164,723.29
231,841.51
109,951.91
206,964.09
169,338.56
262,527.09
104,401.26
218,922.84
121,806.53
114,546.01
109,368.61
238,346.36
192,760.01
70,787.30
256,450.04
104,614.81
196,358.42
143,052.57
174,950.83
101,706.00
150,081.44
239,659.31
271,444.00
PSF adjusted
Enrollment
total
06-11*
56,504.00
2,529
101,928.20
3,414
111,352.62
3,659
149,117.60
4,387
77,897.21
2,010
171,081.84
4,351
190,562.77
4,709
192,778.68
4,673
150,683.49
3,609
91,877.72
2,178
128,176.52
2,815
141,904.67
3,109
63,201.68
1,366
190,535.30
4,064
121,895.98
2,572
94,818.77
1,957
219,528.02
4,513
211,196.46
4,272
95,753.99
1,876
172,470.58
3,123
83,774.54
1,512
185,681.73
3,310
192,830.07
3,329
154,262.13
2,607
179,548.39
3,034
252,707.25
4,227
119,847.58
1,983
225,590.86
3,677
184,579.03
2,822
286,154.53
4,354
113,797.37
1,731
238,625.90
3,608
132,769.12
1,985
124,855.15
1,810
119,211.78
1,728
259,797.53
3,618
210,108.41
2,816
77,158.16
1,013
279,530.54
3,523
114,030.14
1,431
214,030.68
2,653
155,927.30
1,873
190,696.40
2,253
110,859.54
1,300
163,588.77
1,887
261,228.65
2,943
295,873.96
3,317
PSF per student

per year
$22.34
$29.86
$30.43
$33.99
$38.75
$39.32
$40.47
$41.25
$41.75
$42.18
$45.53
$45.64
$46.27
$46.88
$47.39
$48.45
$48.64
$49.44
$51.04
$55.23
$55.41
$56.10
$57.92
$59.17
$59.18
$59.78
$60.44
$61.35
$65.41
$65.72
$65.74
$66.14
$66.89
$68.98
$68.99
$71.81
$74.61
$76.17
$79.34
$79.69
$80.67
$83.25
$84.64
$85.28
$86.69
$88.76
$89.20
77
138
113
173
104
154
152
166
170
147
123
146
148
183
103
117
110
112
182
179
155
158
143
181
119
180
121
128
Summitt
Cunningham
Casey
Becker
Doss
Wooldridge
Williams
Boone
Menchaca
Mathews
Zilker
Oak Hill
Cowan
Barton Hills
Gullett
Bryker Woods
Casis
Baranoff
Davis
Hill
Sunset Valley
Patton
Mills
Highland Park
Kiker
Lee
Pease
200
AVERAGE
Appendix 26
291,713.07
229,705.61
329,044.19
98,193.75
332,961.82
425,593.80
320,009.31
263,374.80
374,822.17
235,680.12
318,209.50
591,034.65
517,921.79
288,818.98
396,643.07
329,197.49
706,697.72
783,756.44
645,911.70
824,126.61
547,532.67
1,122,119.84
2,334,110.48
1,538,136.26
2,074,960.80
1,097,000.44
991,504.57
$338,332.55
317,967.25
250,379.11
358,658.17
107,031.19
362,928.38
463,897.24
348,810.15
287,078.53
408,556.17
256,891.33
346,848.36
644,227.77
564,534.75
314,812.69
432,340.95
358,825.26
770,300.51
854,294.52
704,043.75
898,298.00
596,810.61
1,223,110.63
2,544,180.42
1,676,568.52
2,261,707.27
1,195,730.48
1,080,739.98
3,424
2,690
3,680
1,033
3,476
4,382
3,239
2,631
3,595
2,050
2,467
4,520
3,434
1,853
2,456
2,026
3,987
4,146
3,296
3,529
2,228
3,939
4,953
2,984
3,958
2,087
1,262
$92.86
$93.08
$97.46
$103.61
$104.41
$105.86
$107.70
$109.11
$113.65
$125.31
$140.60
$142.53
$164.40
$169.89
$176.03
$177.11
$193.20
$206.05
$213.61
$254.55
$267.87
$310.51
$513.66
$561.85
$571.43
$572.94
$856.37
368,782.48
2,957
$124.69
78
Economically Disadvantaged College Readiness % by PSF per student per year

ID
School
ED CR % *
006
Reagan High
$120.23
23.0
007
Travis High
$153.80
23.0
004
Lanier High
$158.29
26.0
008
Crockett High
$185.07
27.0
017
Akins High
$191.82
28.0
010
L B Johnson High
$356.67
17.0
005
McCallum High
$439.80
40.0
002
Austin High
$480.92
25.0
013
Bowie High
$613.40
42.0
009
L C Anderson High
$638.79
33.0
$700.00
$600.00
50
45
40
$500.00
$400.00
35
30
25
$300.00
$200.00
20
15
10
$100.00
$0.00
Appendix 26
5
0
PSF per
student/year
79
PSF by Percentage of Minority Students

ID
157
159
165
160
150
161
174
162
118
145
124
102
126
175
109
108
141
163
111
130
125
171
144
101
127
168
116
178
046
106
149
120
156
142
139
114
176
140
133
164
132
058
129
048
122
107
School
PSF per student per year % Minority Students
Winn Elementary
$22.34
98.0
Graham Elementary
$29.86
95.4
McBee Elementary
$30.43
98.0
Linder Elementary
$33.99
98.2
Norman Elementary
$38.75
98.4
Cook Elementary
$39.32
95.8
$40.47
99.1
Houston Elementary
$41.25
97.1
Harris Elementary
$41.75
98.1
Zavala Elementary
$42.18
98.5
Metz Elementary
$45.53
98.2
Andrews Elementary
$45.64
98.1
Ortega Elementary
$46.27
99.3
Widen Elementary
$46.88
98.9
Brown Elementary
$47.39
96.2
Brooke Elementary
$48.45
94.7
$48.64
96.7
Hart Elementary
$49.44
98.6
Campbell Elementary
$51.04
99.2
$55.23
93.6
$55.41
98.0
Palm Elementary
$56.10
95.3
Wooten Elementary
$57.92
97.9
Allison Elementary
$59.17
98.3
Sanchez Elementary
$59.18
97.9
Langford Elementary
$59.78
96.7
Govalle Elementary
$60.44
97.8
Barbara Jordan Elementary
$61.35
98.9
Burnet Middle
$64.67
94.8
Blanton Elementary
$65.41
97.1
$65.72
98.6
Joslin Elementary
$65.74
84.8
Odom Elementary
$66.14
92.4
Allan Elementary
$66.89
99.2
Sims Elementary
$68.98
99.7
Dawson Elementary
$68.99
94.0
Galindo Elementary
$71.81
93.3
$74.61
80.4
Ridgetop Elementary
$76.17
92.6
Pickle Elementary
$79.34
98.5
Reilly Elementary
$79.69
92.8
Mendez Middle
$80.23
99.0
$80.67
98.7
Pearce Middle School
$81.13
98.9
$83.25
69.3
$84.64
53.5
Appendix 26
80
105
136
151
172
138
113
173
104
154
152
166
170
053
055
147
043
006
123
051
146
148
054
007
061
004
045
183
103
117
110
008
017
112
182
179
044
057
052
155
158
143
059
047
010
060
005
002
181
119
St. Elmo Elementary
Pillow Elementary
Kocurek Elementary
Summitt Elementary
Casey Elementary
Becker Elementary
Doss Elementary
Williams Elementary
Boone Elementary
Webb Middle
Dobie Middle
Menchaca Elementary
Fulmore Middle
Reagan High
Mathews Elementary
Martin Middle
Zilker Elementary
Oak Hill Elementary
Bedichek Middle
Travis High
Paredes Middle
Lanier High
Lamar Middle
Cowan Elementary
Gullett Elementary
Crockett High
Akins High
Casis Elementary
Baranoff Elementary
Davis Elementary
Kealing Middle
Covington Middle
Murchison Middle
Hill Elementary
Patton Elementary
Gordon Bailey Middle
O. Henry Middle
L B Johnson High
Small Middle
McCallum High
Austin High
Mills Elementary
Appendix 26
$85.28
$86.69
$88.76
$89.20
$92.86
$93.08
$97.46
$103.61
$104.41
$105.86
$107.70
$109.11
$110.66
$110.67
$113.65
$114.36
$120.23
$125.31
$137.68
$140.60
$142.53
$144.52
$153.80
$155.75
$158.29
$159.07
$164.40
$169.89
$176.03
$177.11
$185.07
$191.82
$193.20
$206.05
$213.61
$237.55
$240.56
$252.95
$254.55
$267.87
$310.51
$324.68
$349.74
$356.67
$364.32
$439.80
$480.92
$513.66
$561.85
99.2
96.3
79.3
70.1
61.3
72.7
75.6
94.7
30.7
98.4
87.6
60.8
97.7
96.3
65.5
84.4
97.5
65.5
99.3
41.2
43.0
88.7
95.1
86.1
95.0
61.4
51.1
25.6
18.6
28.0
78.6
84.7
18.4
42.5
45.8
61.7
71.2
38.3
31.3
85.8
45.4
54.9
52.1
98.3
44.2
53.7
54.4
38.0
21.0
81
180
121
013
009
128
Kiker Elementary
Lee Elementary
Bowie High
L C Anderson High
Pease Elementary
Appendix 26
$571.43
$572.94
$613.40
$638.79
$856.37
28.0
39.2
41.6
40.1
72.9
82
Appendix 26
83
V. REDRESSING DISPARITIES AND LACK OF EQUITY

IN AUSTIN INDEPENDENT SCHOOL DISTRICT:
REMEDIES AND RECOMMENDATIONS
A. BUILDING THE EDUCATIONAL ENVIRONMENT THROUGH PRIVATE RESOURCE EQUITY
The data on achievement gaps for minority and economically-disadvantaged students is alarming,
and our study found that the gap in private resource equity among schools is a significant factor in those
outcomes.
In other words, the typical monitoring data shows that minority students underperform as
compared to white students, and economically-disadvantaged and limited English proficient students
underperform as compared to students not in those categories.
In comparing resources available to schools segregated along these lines, we found a significant
disparity in the access to private resource equity. When we analyzed this disparity, we found that, private
resource equity is a significant factor determining outcomes and success. If a student attends a school
with limited private resource equity, he or she more likely will drop out.
The significant advantage we found in schools with high levels of private resource equity is their
ability to create a positive, creative, and individualized educational environment, with multiple
opportunities and supports to develop student potential. These include offerings in the arts, athletics, field
trips, retreats, classroom aids, technology, volunteer teaching assistants, extracurricular clubs, and other
activities.
Private resources also provide extra support and incentives to teachers, and aid in the recruitment
and retention of high quality teachers.
These inputs directly affect student outcomes; and, where lacking, students are deprived of an
added environment conducive to success and learning. Yet there is a stark inequality across AISD
regarding private resource equity.
We began this report by proposing changes in how private resources are mobilized, accessed, and
deployed so as to more equitably share them within the District. We return to our proposals once again,
having put them in context and desiring to emphasize them and their importance.
We challenge the community to achieve greater equity for poorer schools, and propose the
following ideas and initiatives, recognizing that some of them may require extended time and additional
or reallocated funds to implement:
1. Creating a District-Wide Foundation and an Endowment to Fund Programs for Low-Equity
Schools
Our first, and major, recommendation for addressing the inequities caused by private
subsidization is creating a foundation and an endowment to help fund programs and provide education
support for low-equity schools.
The problem of intra-District inequity is so grave that creative initiatives, like a special
foundation and an endowment, are necessary for helping make educational opportunities in low-equity
schools comparable to those in high-equity schools.
One way of funding such a foundation is through a tithing contribution on private fundraising at
higher-equity, more affluent school campuses. This would involve AISD as a whole. Other districts
nationwide have implemented a tithing system on private fundraising to achieve greater private resource
equity.
Appendix 26
84
Portland, Oregon is the leading example, where each individual school foundation contributes
one-third of the funds it collects in excess of $10,000 to a district-wide Equity Fund. These funds are then
distributed to higher needs schools within the district, according to need.
Appendix II-A describes the Portland plan in detail.
However, one does not need to go as far as the Pacific Northwest to find examples of creative
ways to equitably fund education. San Antonio Mayor Julian Castro is proposing a 1/8 cent sales tax (an
average cost of $7.74/household annually) to expand pre-kindergarten educational opportunities,
potentially allowing more than 22,000 additional children to enroll in Pre-K programs over an eight year
period.1 Castro argues for the proposal, which will be voted on this November, by pointing out that preK and student loans arent charity. Theyre a smart investment in a workforce that can fill and create the
jobs of tomorrow. Were investing in our young minds today to be competitive in the global economy
tomorrow.2
AISD and the City of Austin should implement similar initiatives, and the Austin Council of
PTAs should embrace them.
The second part of this project would be creation of an endowment through contributions from
local philanthropists, businesses, the public, the City, municipal entities, and others, which the foundation
would administer.
AISD has an Office of Innovation and Development (OID). A review of its funding partners
reveals that most partners or foundations are supporting projects in predominantly low-income schools,
such as STEM programs (Science, Technology, Engineering and Math), the Social Emotional Learning
initiative (SEL), the Early College High School program, professional development programs, and some
support for technology and materials.
All are intended for the most part to address needs in low-income schools. However, the amount
of support and impact OID and its partners have had on sustaining significant private resource equity in
schools with the highest need is not evident. In fact, AISD data suggests it is insufficient to address the
structural inequity. OID also manages AISDs accountability for state and federal entitlement grants, a
task that no doubt takes up significant time and resources.
We recommend decentralization of OID, and that all the schools in the four vertical teams
identified as most lacking of private resource equity (Reagan, Lanier, LBJ, and Eastside Memorial) have a
full-time fundraising and development person on campus at each school who would help prioritize efforts
to grow and sustain private resource equity in those schools. Decentralization would allow each schools
fundraising and development person to engage with and be accountable to each vertical team community.
The individuals would work directly with principals and PTAs, as well as with AISD teams seeking to
address priorities and develop successful programs in those vertical team areas.
The individuals would engage the broader business, academic, and residential communities to
mobilize resources and volunteers. Most importantly, these decentralized positions would help ensure
that, in addition to targeted programs for higher-needs students, these students would have the same
beneficial educational environment enjoyed by their colleagues at high private resource schools, such as
quality offerings in art, athletics, field trips, retreats, technology aids, extracurricular clubs, and other
activities.
1
Katherine Leal Unmuth, Democratic National Convention: Mayor Julian Castro Slips Pre-K Reference Into
Keynote Speech, Latina Lista (Sept. 5, 2012), at http://latinalista.com/2012/09/democratic-national-conventionmayor-julian-castro-slips-pre-k-reference-into-keynote-speech/.
2
Id.
Appendix 26
85
We recommend that AISD promote the partnering of high-equity and low-equity schools to better
share resources across the District. Common fundraisers, the sharing of organizational capacity, advocacy
skills, community resources, and social networks are all ways in which private resource equity could be
employed across the District. This should be a particular mandate and mission of AISD.
Beyond joint fundraising and sharing equitable resources, partner schools also would participate
together in combined field trips, extracurricular activities, or other programs.
There are logistical issues involved, such as transportation from one school to another, to which
AISD would have to apply creative problem-solving.
High-equity schools derive significant private resource funding from AISD property or AISDsponsored activities, such as sporting events, vending machines, rental of school space, and even parking
spaces (which high-equity schools auction off to parents).
While we do not suggest redistributing all private resource equity generated at high-equity
schools, AISD should evenly redistribute monies generated through use of its property or sponsored
activities. For example, funds from sporting events should be pooled and distributed equitably within
AISD by its Excellence and Equity Foundation.
The District should re-direct its focus from top-down communications to ground-up community
organizing. Low-equity schools should each have a full-time community organizer on staff to mobilize
and engage the community in developing solutions to improve students quality of education with support
from the District. Genuine community organizing will lead to better participative methods in developing
and implementing hands-on strategies for improving low-equity schools.
6. Enlisting UT to Assist Low-Equity Schools: Teacher Training and Research, Mentoring and
Tutoring, Expanded Volunteer Programs (Extracurricular Activities and Sports)
The University of Texas is an excellent resource that should be recruited as a partner in achieving
greater equity in AISD schools. UT benefits from the Austin community in myriad ways; and, in turn, it
can provide enormous in-kind human and social contributions. AISD already has a relationship with some
university members as consultants, and UT operates the UT Elementary School, a demonstration school.
Both AISD and UT should assess their relationship in terms of improving the educational environment in
AISD low-equity schools.
Two strong partnership areas would be teacher training and research. Teaching assistants, who
intern at UT Elementary, also could intern in low-equity public schools. UT likewise could provide
greater continuing training opportunities for District teachers in low-equity schools. AISD should
coordinate with the UT Department of Education to maximize UTs positive impact on increasing equity
in AISD. AISD should likewise promote UT research aligned with the goals of increasing opportunities
and performance in low-equity public schools.
There is no limit to harnessing the potential of UT students and faculty, from significantly more
organized and expanded volunteer mentoring and tutoring programs to sports activities, classroom
assistants, extracurricular clubs, language programs, and social work interns.
Just a few hundred organized volunteers from UTs 50,000+ students and 12,500 faculty and staff
is not unimaginable, indeed rather probable, and would have an enormous impact on Austins schools.
Why AISD doesnt systematically tap into and organize this dynamic resource at all levels is
unfathomable, and probably even inexcusable. There is no shortage of dedicated volunteers at UT.
Appendix 26
86
We recommend that AISD establish a separate technology task force for low-equity schools.
There should be a priority focused on ensuring that low-equity schools have optimum classroom
technology and innovative curricula which use that technology. The District should make all its partners
aware of this priority and challenge them to make it a reality. AISD needs to organize Austins famed
high-tech corridor to step up to this challenge.
As part of this priority, AISD should provide added support for website development for lowequity schools and internet access in the homes and communities they serve. One evident disparity in
private resource equity shows up on school websites across the District. High private resource schools
have substantially more developed websites.
Developing the websites of low-equity schools in a participatory way for parents and students,
and increasing their internet access will also enhance self-image and create a positive environment for
educational progress. It is also an essential tool for recruiting volunteers, fundraising, and communicating
with families.
Local businesses depend on, and benefit from, locally educated and self-sustainable communities.
While the Austin business community has made notable (and laudable) efforts to partner with AISD
toward greater equity, more partnering projects are desperately needed.
Moreover, social networking is a significant feature in high-equity schools that produces
substantial resources from the business community for those schools. Because of the lack of accounting
transparency for these resources and corporate giving, it is unclear how those amounts compare to grants
and contributions to low-equity schools, but the balance surely favors high-equity schools.
AISD must persuade the Austin business community to the goal of helping make low-equity
schools places where the educational environment is at its highest level. Businesses must become the
private boosters that these schools currently lack in resource equity.
AISD also must convince local foundations to reconsider where and how to make their grants in
light of school inequities.
Some examples of endeavors that foundations and Austin businesses can undertake include:
a. Student mentoring programs during/after school and evening student/parent
mentoring programs;
b. Partnering with particular schools;
c. Adopting curricular and extra-curricular activities and sustaining projects that
improve the educational environment; and,
d. Grounds and facility improvement
Business and corporate and private foundations should not only support public education but
align their goals with an explicit AISD plan to raise the educational environment in low-equity schools.
The more educated a community, the more it thrives economically and socially.
In order to cover some of the costs of these proposals, the District must cut back and cap central
administrative expenses and salaries, pegging them to a percentage of teachers salaries.
The District must also significantly reduce the percentage of Title I funds that it siphons off as
administrative costs and re-locate Title I positions from central administration to school campuses
receiving Title I funds.
10. Better Public/Private Resource EquityUtilization
Appendix 26
87
Finally, we recommend the following three specific steps that AISD can implement
immediately:
a. Establish zero-based budgeting with equitable compensation for low-equity schools;
b. Implement a revised weighted formula for intra-District funding that follows the student,
not the staff; and,
c. Expand the REACH program and teacher incentives for high-needs schools.
B. STATE EDUCATIONAL FUNDING: AISD, FRIEND OR FOE?
Although this report deals with intra-District school funding inequities, rather than inter-District,
a few additional comments about state funding are important to reflect our overall goals as a society and
their impact on bringing about better equity among Austin ISD schools.
Building a fairer District must begin with a change in attitudes. We are appalled by the
insidiously narrow attitude that courses through the discussion within AISD on the distribution of
resources for public education. This attitude exhibits itself, for example, in the schizophrenic
simultaneous touting and bemoaning of the Districts contribution to the state school finance system as
a Chapter 41 District, which the law requires to lessen property wealth disparities and help share
resources among school districts.
Equalization under Chapter 41 is a constitutional and ethical mandate to achieve a minimum of
fundamental school finance fairness for all children across the state. Too often, the discourse of AISD
board members, administrators, and community members characterizes our Chapter 41 obligations as a
burden, softened by a self-satisfied pat on the back for our sacrifice. Implicit (and at times explicit)
is also a call to keep more of those Chapter 41 monies within the District to address our own needs.
This attitude logically leads to the Districts alignment with other property-wealthy districts in
school finance litigation. Whether AISD participates wittingly or unwittingly, the strategy of those
districts has been to whittle away broader, statewide equitable measures and keep more money within
their own coffers, regardless of the impact on social equity.3
This narrow-minded and flawed position ultimately hurts our local community and Texas at large,
if only because of transitory population patterns within the state. AISD should have no part of this
misguided mission and should realign in the ongoing litigation in which it has involved itself.
There are ethical and pragmatic components at issue. The ethical element addresses assisting
children to attain their potential, share in equal opportunity, and expand their practice of the nations
democratic ideals. In pragmatic terms, a democratic society cannot survive or flourish with an uneducated
citizenry, either in whole or in part. Without educational equity, our society will split further into a twotiered society, which offends our democratic principles, economically weakens society, and undermines
self-governance.
AISD claims not to be a rich district, and points to its student population, which is
majority/minority and economically-disadvantaged. This is disingenuous discourse. Chapter 41
equalization is based on property wealth, and AISD is clearly within the minority of property-wealthy
districts when compared with other districts in the state. AISD should support equalization unequivocally
and quit raising it subtly as a funding woe factor.
Another, separate mechanism for statewide funding equity involves weighted funding for special
needs students. AISD may have more similarities with property-poor districts with respect to challenges
in educating a high percentage of economically-disadvantaged or limited English proficient students. A
3
Low-wealth school districts are participating in this litigation to ensure greater equity in the state school finance
system. AISD should ally itself on the side of equity and excellence in education for all.
Appendix 26
88
proper ethos of equity should align complaints about an inadequeate state school finance system with the
interests of property-poor school districts, which are seeking greater equity and attempting to educate
higher-needs children. Regretably, in the latest round of school finance litigation in the courts, AISD has
aligned itself once again with property-wealthy districts.
Through a new and sharpened ethos of equity, AISD should re-align with property-poor districts
and districts with significant percentages of higher-needs children in statewide advocacy and litigation,
and commit to a principled vision of intra-District fairness.
C. ALIGNING WITH PROPERTY-POOR DISTRICTS: THE BETTER COURSE FOR AISD
The woefully inadequate state funding system promotes unhealthy competition and the two-tiered
structure of public education identified in our analysis of private resource equity, to the detriment of poor
and minority students. Our society must ensure that the most high risk, high needs, and traditionally
excluded children receive comparably good educational opportunities in comparably good educational
environments.
Reform schemes that seek to impose efficacy through unfunded, top-down demands for
excellence and competition within an already inequitable system are doomed to failure, and have failed:
successful schools will tend to rise, and failing schools will tend to fall in their wake.
AISD and the Austin community should advocate politically to increase dramatically the capacity
of the state school finance system, and to build greater equity within that system. This would include
advocating for the following measures:
1. Eliminating current equity gaps in state equalization by ensuring the same amount of
tax dollars per student statewide for each penny of tax effort;
2. Increasing the weights assigned to higher-needs students to adequately reflect and
compensate for the additional supplemental costs associated with their education; and,
3. Equalizing financing for facilities and/or guaranteeing a benchmark for Tier III
funding (facilities financing for property-poor districts) that requires the state to offer
effective, equivalent support for facilities financing to property-poor districts.
These are goals AISD can support now by aligning with property-poor districts in school finance
litigation. This would send a strong message to both the legislature and other property-wealthy districts of
the Districts new ethos. When property-wealthy districts are unable to expand their current privileges in
the state school finance system and find themselves in the same position as property-poor districts, they
should become common stakeholders in seeking improved funding for students across the state, rather
than protecting and expanding their privilege. Austin ISD should take the lead as a property-rich district
in this movement of solidarity toward the common good.
D. THE PITFALLS OF FREE-MARKET REMEDIES
AISD and its community partners should focus on developing a new, creative plan to prioritize
the low-equity schools and transform them from the ground up. We believe that a concerted effort to
transform the mobilization of resources and center the culture and delivery of services around the quality
of education in these schools with priority on the school clusters within the Eastside Memorial, Reagan,
Lanier and LBJ attendance zones, will make AISD more efficient and more equitable.
Certain remedies in vogue, however, contain obvious pitfalls. The proposal to implement
District charter schools in the the Eastside Memorial attendance zone produced similar division, and
now there is discussion of treating these charter schools as magnet schools to help them succeed.4
The uncritical application of free market principles, competition, and school choice to the
challenge of school reform in lower-equity schools is largely experimental. The District needs to search
4
Richard Whittaker, Enrollment Stalling; IDEA Gets Magnetic, Austin Chronicle (April 13, 2012).
Appendix 26
89
for an integral, holistic approach to improving the quality of education and educational opportunity to
lower-equity schools.
Moreover, the controversy surrounding the proposed implementation of District charter schools
in the Eastside Memorial attendance zone demonstrates a lack of community consensus and failure to
achieve effective community participation in the proposed solution. It is a far-reaching proposal, flawed
in its process, and divisive in its operation. Ultimately, the District will be setting up further competition
for which the non-experimental public schools are at a fundamental disadvantage. This type of
competition does not take place on a level playing field and is not designed as an integral solution to the
problem of reform.
A liberal District transfer policy, while laudable at some levels and for some families, also fails to
address the total problem and the fundamental challenge of providing high quality education lower-equity
communities. By not addressing the larger issue, a liberal transfer policy will tend to produce shrinking
attendance in the lower-equity communities, more limited educational opportunity there, and thus
impoverished options for families who must ultimately rely on their neighborhood school.
All these partial remedies under free market principles belie the pitfalls of competition and
school choice as motors to effect school reform and increase the quality of education in high-needs,
high minority schools. If the District fails to make the necessary commitment to these schools, these free
market remedies will also fail and only aggravate the problem. The goal of the public education system
and of AISD should be to offer parents an excellent choice within their childs attendance zone, one that
meets the childs needs and offers meaningful opportunities in a high quality educational environment.
The communities of Reagan and Eastside Memorial mobilized to save their schools from closure
under the states accountability system. The extent of success of their efforts to change the direction of the
schools results within the state accountability system demonstrate energy and potential in the
community. However, the context of their struggle was narrowly constrained by the state accountability
system and the limited resources and support offered by the District.
The extent of their limited success remains to be seen. It is doubtful whether progress is
sustainable under the framework of the state accountability system, limited resources, and current policies
dictating distribution of those resources, both private and public. The District should set its goals beyond
that of the state accountability system, and resist being narrowly contstrained and shortsighted in its
efforts to transform lower-equity schools.
The District needs to work with the energies and capacities in the lower-equity communities, but
it must have a new model of community consultation and participation; and it must bring a priority and
commitment to raise the quality of each school in those communities, instead of a partial experimentation
strategy. It also should work with teachers and administrators who are committed to lower-equity schools,
and give them appropriate support.
We, therefore, caution the District and the broader community, and qualify our own
recommendations: the necessary prioritizing of low-equity schools requires on-going dialogue with those
school communities and the committed educators in their midst. Our ears and minds must be open to each
others thoughts and ideas, aimed at the common goal of equity.
We hope our recommendations and analysis regarding intra-District equity will contribute to that
dialogue.
Appendix 26
90
Appendix 26
91
APPENDIX V
ALL HANDS RAISED FOUNDATION -- PORTLANDS SCHOOLS FOUNDATION
Appendix 26
92
Appendix 26
93
ALL HANDS RAISED FOUNDATION -- PORTLANDS SCHOOLS FOUNDATION

How the one-third/two-thirds policy came about in Portland, Oregon:
A task force of parents, community leaders, and board members, established by the Portland
Public School (PPS) Board in 1994, focused on two interrelated problems: that (1) teaching positions
across the district were in danger of being cut due to lack of funding and (2) fundraising for individual
schools resulted in uneven results across the district since some schools lacked the financial capacity to
raise significant funds toward hiring staff for their own campuses.1
The task force recommended establishing a citywide foundation, called the Portland Schools
Foundation (PSF), to address this dual problem. By 1995, PSF enacted a policy, informally called onethird/two-thirds, where one-third of the funds raised through local school foundations in excess of
$5,000 were placed in a citywide foundation for the purpose of providing equity between schools.2 The
remaining two-thirds returned to the account of the local school that raised them."3
PSF (recently rebranded as the All Hands Raised Foundation)4 realized that the district-wide
one-third policy, although a step in the right direction, was imperfect since it required affluent and lowincome schools alike to contribute a third of their funds. Taking money from low-income schools, which
typically raised only a few thousand dollars, seemed counterintuitive.
In 1998, the floor was raised to from $5,000 to $10,000, whereby a school could raise up to
$10,000 total each year and receive 100% of those funds; anything above $10,000 "floor" would be
subject to the one-third/two-thirds policy.5 Thus, affluent schools contribute a third of the funds they
raise over $10,000 to the foundation, which redistributes these funds to schools in need. Moreover,
because affluent schools keep the bulk of their fundraising efforts ($10,000 + 2/3 of whatever they
fundraise), de-motivation became less of an issue.
How the one-third/two-thirds operates today:
Grants from the PPS Equity Fund and Grants are based on an equity formula that takes into
account key financial resources at individual schools, as well as the demographic profile of the school.
Once the equity formula is applied and a needs-based ranking emerges, the total amount of funds
available is established as equity grants.6 Through the efforts of parents, teachers, and staff, 39 separate
local school foundations raised a record $3 million for the PPS Local School Foundation in 2011 alone
(and $8 million since 1994).7 School principals and regional administrators decide on how to allocate the
grants.
In theory, equity grant recipients can use funds to hire and keep school staffing. However,
usually the funds are not enough to pay for a single position. That said, principals can use funds for
partial positions or education assistance. In practice these grants frequently are applied for math and
Portland School Foundation FAQ, http://www.thinkschools.org/local-school-foundations/faq/. Some of this

information in this section is based on an interview of Samantha Lopez, Portland Schools Foundation manager and
spokesperson.
2
Id.
3
Id. Individual schools had access to first $5,000 raised for their campuses.
4
Portland Schools Foundation: A Program of All Hands Raised, https://www.thinkschools.org/index.php?page=local-school-foundations. All Hands Raised is a separate legal organization from the Portland School District.
It operates as a parent-fundraising arm parent-driven and parent-supported. Although they work closely with the
district their goal is to serve parents.
5
Portland School Foundation FAQ website, supra n.1.
6
Portland Schools Foundation: A Program of All Hands Raised, http://allhandsraised.org/.
7
Id.
Appendix 26
94
literacy programming at the schools. The money raised helps offset the budget challenges that Portland
Public schools face during difficult economic times.8
Equity Funds and Grants:
The PPS Equity Fund focuses on increasing student academic achievement, and each year the
PSF Board re-examines the specific criteria for each grant program to ensure that funds are being used as
strategically as possible.
Applying the weighted formula detailed above, Portland schools received $845,000 in donations
through equity grants in 2011,9 and more than $965,000 for the 2012-2013 academic year.10 In the 20102011 school year, donations pay for 110 staff positions.11 According to Education Week, All Hands
Raised distributed on average $20,000 to $40,000 to schools with the greatest need in 2011.12 In 2012,
the grants ranged from $20,000 to $30,000; and five alternative schools received $12,000 grants.13
Political Reception of PSF/All Hands Raised:
The program, which has been in place for over seventeen years, is very well received in the
Portland community. Initially, the program was aimed primarily at fundraising, but now All Hands
Raised is committed to impacting broader change. Although the reception remains positive, there are
those who wish the floor was higher; and the proportion given to the fund, smaller.
Samantha Lpez, PSF manager and spokesperson, attributes the positive reception to the unique
way in which different members of the Portland community (community leaders, parents from affluent
schools, etc.) came together to address the staff shortage problem. Also, All Hands Raised and local
schools that receive funding both try to spread the word on the positive effects of the equity grants
through monthly publications on the amount of money raised and examples of how it is spent.
What We Can Do:
Getting members involved from different areas helped create and maintain buy-in for the Portland
funding program. Samantha Lpez recommends: (1) tapping into leaders that are already in place who
are committed to achieving equity in Austin schools; and (2) recruiting people that may not initially be
keen on getting involved. e.g., leadership from affluent communities and schools will be a challenge but
very important.
------------------The following is from https://www.thinkschools.org/local-school-foundations/faq/:
1. What is the Portland Schools Foundation?
The Portland Schools Foundation (PSF) is an independent, community-based organization that
mobilizes the resources, leadership, ideas, and the political support necessary to ensure a worldclass public education for every child, in every school, in every Portland neighborhood.
2. Does our school have a local school foundation?
Yes. Under the non-profit "umbrella" of the Portland Schools Foundation, every school in the
Portland Public School district already has a local school foundation account. Parents at many of
8
Id.
Parent, Community Groups Pressed to Fill K-12 Budget Gaps, http://www.thinkschools.org/uploads/File/Education%20Week%203_12_12.pdf, p.4.
10
Portland School Foundation FAQ, supra n.1.
11
Parent, Community Groups Pressed to Fill K-12 Budget Gaps, 31 Education Week 24, pp. 1,18 (March 13,
2012).
12
Id.
13
Portland Schools Foundation: A Program of All Hands Raised website, http://www.-thinkschools.org/localschool-foundations/.
9
Appendix 26
95
these schools are actively fundraising for their local school foundation under the PSF's 501(c)(3)
non-profit status.
Seven schools within the Portland Public School District have elected to establish their own nonprofit local foundations, independent of PSF. PSF continues to work with these independent
organizations to provide specific services, and continues to accept donations on behalf of those
schools.
3. Why do schools raise funds through their local foundations?
As established by PPS School Board policy, local school foundations are the only way in which
school communities and parents may raise funds to pay for personnel (FTE). All funds raised at
local schools intended for personnel costs pass through the PSF and on to the school's account
(called an "S0083 Account") at the Portland Public School district.
4. What is the one-third/two-thirds policy?
In 1994, the Portland Public School Board established a task force of parents and community
members to look at the issue of schools raising private funds for teachers, other staff positions,
and other basic "core" operations of a school. In the wake of Measure 5, many parents realized
that teaching positions would be cut. Several schools established their own non-profit foundations
to raise funds to buy back staff that had been cut. Unfortunately, not all schools have the financial
capacity to raise significant funds toward hiring staff, so the potential for creating inequities
across the district needed to be addressed.
The 1994/95 task force recommended the establishment of a citywide foundation and that onethird of the funds raised through local school foundations be given to this citywide foundation for
the purpose of providing equity between schools. The Portland Schools Foundation was
established, in part, to be that citywide foundation, and to route the other two-thirds to the
school's account at PPS ("S0083 Account.")
In 1998, the Foundation recommended a change in the policy. Many low-income schools were
not capable of raising more than a few thousand dollars each year and it seemed that equity was
not being served by deducting one-third of those funds. A new procedure was put into place so
that the one-third formula would be applied for each school only after the first $10,000 had been
raised each school year (July 1 - June 30). In other words, a school could raise up to $10,000 total
each year and receive 100% of those funds; anything above that $10,000 "floor" would be subject
to the one-third/two-thirds policy.
5. How does the Portland Schools Foundation use the one-third funds?
The Board of Directors of the Portland Schools Foundation honors its original charge from the
PPS School Board by allocating 100% of the one-third funds (PPS Equity Funds) for direct grants
to schools working to close the achievement and opportunity gap. The PSF does not use ANY of
these funds for operations or staffing; those costs are paid by other fundraising activities.
The PPS Equity Fund is focused on increasing student academic achievement. Each year the PSF
Board re-examines the specific criteria for each grant program to ensure that funds are being used
as strategically as possible.
6. Our group of parents wants to raise funds for our school through the Portland Schools Foundation - are
there any special papers that we need to fill out?
Because every school in the Portland Public Schools District already has a local school
foundation under the umbrella of the Portland Schools Foundation, there are no special forms to
fill out. Every year the PSF tries to have an accurate email list of parent contacts at every school.
We encourage you to contact our office to make sure that we have the correct information for
your school foundation contacts.
Appendix 26
96
7. Does my local school foundation need to establish a board or committee?

No, the PSF recognizes that all schools have different levels of parent interest and capacity and
does not require that a school have a specific type of leadership group for its local school
foundation. However, to be successful at fundraising, you will need to form some kind of
committee or team no one person can fundraise alone!
Local school foundations that operate successfully make sure that the following conditions are
met:
The local school foundation has a good working relationship with the principal and mutual
understanding of clear goals and objectives for the fundraising effort.
The foundation has good communications with the school leaders and community in
establishing its funding priorities (many foundations poll parents regarding funding
priorities in partnership with site councils, etc.)
The foundation has a simple fundraising plan that helps schedule the activities for the
school year.
The most successful school foundation fundraising activities are based on:
o
Individual contributions from parents and families at the school.
One significant fundraising event per year.
8. What types of contributions can be made to a local school foundation or the Portland Schools
Foundation?
Checks
American Express, MasterCard, or VISA (online @ www.thinkschools.org)
Monthly contributions through credit cards (online @ www.thinkschools.org)
Securities Shares of stocks, bonds and mutual funds
In-kind gifts
Wills, bequests, trusts
9. What are the steps the Portland Schools Foundation takes to process a contribution?
The Portland Schools Foundation sends a thank you letter and tax receipt to the donor.
The donor's gift information is added to the PSF database.
The donation is deposited into the PSF's bank account. The PSF calculates whether or not the
$10,000 floor has been reached and records the 2/3 of the gift be transferred to the school's
account at PPS.
After each monthly financial period is reconciled, a report is sent to PPS to PPS reflecting the
amount raised at each school. The funds are then directly accessible to pay for personnel costs
and are accessed by the school principal through the PPS District Finance Office.
10. How does a local school foundation find out how much is in its holding account?
Individual school foundations receive two types of reports:
The PSF will send two reports: These report will be sent monthly to the school Principal
the LSF Chair/Co-Charis and the LSF Treasurer.
Appendix 26
Monthly Donation & Expense Report: This report will include 1)A list of donors, the date and
the amount of their contribution for the month, and 2) A detailed list of Expenses for the month.
97
Year to Date Statement: This report will include a year-to-date statement showing activity by
month including deposits, expenses, amount contributed to the PPS Equity Fund and the
amount available in your school's account at PPS.
11. What are the advantages to operating a local school foundation through the Portland Schools
Foundation versus starting a separate non-profit?
The PSF provides a variety of services that allow schools to concentrate on fundraising rather
than administrative and legal details. Included in the ways which the PSF assists school
foundations are:
Processing all gifts in accordance with IRS guidelines
Legal liability rests with the PSF's board of directors, including an annual audit
Maintaining a database of donors
Providing technical assistance for fundraising activities, such as developing direct mail
campaigns and holding major events
Filing of the IRS 990 and State of Oregon Dept. of Justice CT-12
Coverage under the PSF's general liability insurance
Providing capability for online giving
Use of the PSF's mail permit
Processing of stock gifts through the PSF's brokerage account
12. Who can I call when I have questions?

Samantha Lpez
Manager of Partner Programs
503.234.5404, ext. 13
Call for fundraising technical assistance.
The following
foundations:
information
is
from
https://www.thinkschools.org/index.php?page=local-school-
Parents in Portland Public Schools are doing amazing things! For over 17 years, the Portland
Schools Foundation has engaged the community to meet the most urgent educational needs of our kids,
by supporting the work of PPS Local Schools Foundations (LSFs), stewarding the funds raised by LSFs,
and managing the PPS Equity Fund. This work will continue as our work expands as the managing
partner of the Cradle to Career partnership in Portland and Multnomah County.
In 2011, PPS Local School Foundations raised a record $3 million. Parents, principals, teachers
and staff, and others in the 39 school communities that raised these funds, should be thanked. These funds
are especially critical for the 2012-13 school year as Portland Public Schools faces the proposed cuts in
response to our state's current economic challenges.
The numbers for the 2012-13 PPS Equity Grants are staggering - more than $965,000 was
awarded to 43 PPS schools, as well as five alternative programs. The PPS Equity Fund and Grants are
based on an equity formula that takes into account key financial resources at schools, as well as the
demographic profile of the schools. Once the equity formula is applied and a needs-based ranking
emerges, the total amount of funds available is applied. This year the grants range from $20,000 to
$30,000, with $12,000 grants for five alternative schools.
Appendix 26
98
Since 1994, on the heels of Measure 5s cuts to public education, PPS parents have
created vibrant LSF's to raise funds to support teaching positions. Today that initiative has grown to 39
active local foundations. To date, LSF's have raised roughly $27 million for PPS schools, of which
roughly $8 million has been distributed through the PPS Equity Fund. This is amazing work that is also
an incredible Portland story: having 1/3 of funds raised by local school foundation parent volunteers
donated to the PPS Equity Fund.
Questions to Samantha and Her Answers (samantha@thinkschools.org, 503-234-5404)
1) Can you please explain the difference between equity grants and PPS equity funds?
Is my understanding that equity funds are dedicated only to fund programs that close the achievement
gap; equity grant-recipients can use funds to hire and keep school staffing?
Are grants ever used to pay for other things than school staffing, such as textbooks or computers?
Answers:
Equity funds and grants are interchangeable terms. The school foundation raises money that 1/3 of
anything over $10,000 goes to the equity fund, which is where the equity grants come from. Grants
can be used for staffing and the reason for fundraising is generally for staffing.
The decisions of how the funds are allocated are in the hands of the principal and regional
administrators at schools of high needs who receive the equity grants. Generally, these funds are for
math and literacy programming at their schools, but they can support education assistance or partner
with a community program.
The challenge is a school raising money to support staffing, which is expensive. This year, the EG was
$20-$30K, in previous years. $20,000 is not enough to keep a position, so the principal can choose to
use the grant for partial positions or education assistance.
2) How has employing a $10,000 floor helped or hurt the contributions schools in need receive? What
would you say to critics that argue that the $10,000 floor de-motivates affluent schools from raising
money to their full potential?
Answers:
One-third formula was enough to encourage fundraising. Started at $5K and increased to $10K
recently, in order to benefit lower income schools, so they dont have to contribute to equity funds.
3) What has been the political reception of PSF? Has there been any political or community push-back
when the program first originated? If so, has it subsided? Do certain events, such as budget cuts, reenergizes any opposition to the program?
Answers:
The program has been in place for 17 years, and they get feedback from both directions. There are
people who want the number to be lower than 1/3. Portland is in a tough financial position and
looking at cutting a lot of positions. So even though some may find the program exciting and ideal in
theory, still hard to implement in these financial times.
When the conversation started, there were people who wanted percentage to be higher and some
wanted it lower. The consensus was 1/3 was enough to encourage fundraising. So, they still feel
connected to the funds.
The $10,000 has increased in recent years (last 10 years), originally started at $5000. This also benefits
lower income schools, so dont have to contribute to the equity fund until reach this mark.
4) Conversely, has the implementation of the program have any unintended benefits, such as broadening
community ties?
Appendix 26
99
Answers:
How was this program came about:
Policy adopted by school board context: tax measure restructured how schools received funding
implementation came from parent community (from more affluent parts of the city). Parents
community wanted to fundraise to raise money for staffing. At the time, there wasnt a position in
place that allowed fundraising for positions (only boosters, and athletic program fundraising were in
place)
Board convened a task force to evaluate how this could work and how it would best serve the need of
the district and the ramifications of equity in the school district.
Committee convened including board members, community members, parent leadership bartering
happened discussed the floor ($5000 at the time) and percentage that would encourage fund
raising and the get money to schools.
The different voices represented at the table fostered buy-in for the program b/c concerted
community effort. Not just a band-aid.
Possible suggestions to get the right people involved: 1) tap into leaders that are already in place
that are working toward equity in schools; 2) Recruit people with buy-in that keen on getting
involved. e.g., leadership from affluent community may be harder but worthwhile.
Portland School Foundation original task force that focused on fundraising efforts. Program
evolved to something that wasnt just fund raising but trying to impact broader change PSF is a
division of All Hands Raised. PRSB rebranded and is now called All Hands Raised. (Portland
School Foundation)
Separate legal organization from the district. As parent fundraising arm, parent driven and parent
supported. Work closely with the district but serve the parent in what they do.
Parents really believe in this program and the impact it has on school. Get to hear about the stories
about the difference they are making. Budgets nationwide are incredibly challenging. Hurdle in that
its hard to fundraise with budget cuts. Sure, there will be people who want the floor higher and
others who want the floor to be lower and contribution higher. Overall the experience has been very
positive.
Parents really believe in this program and the impact it has on school. Get to hear about the stories
about the difference they are making. Budgets nationwide are incredibly challenging. Hurdle in that
its hard to fundraise with budget cuts. Sure, there will be people who want the floor higher and
others who want the floor to be lower and contribution higher. Overall the experience has been very
positive.
Getting the message out. Generally schools promote their own fundraising efforts and communicate
this at the school level. PRSB highlight equity grant program and list on website what schools will
use equity grants for. And theres a monthly newsletter and make use of funds a transparent as
possible. Anecdotally, they try to promote the numerical story line with faces and stories.
The numbers grow every year
Appendix 26
100
Appendix 26
101
VI. METHODOLOGY
This section describes the processes through which we acquired the data in this report and the
problems of consistency and transparency we encountered in our effort to provide readers with a sense of
the scope and accuracy of the report. This section also explains our various analytical models in the
report.
A. BUDGET AND EXPENDITURE INFORMATION
We used the Texas Public Information Act (PIA) to obtain data on the AISD budget and
expenditures per school campus. In response we received accounting ledgers for each campus. This led to
further inquiry into the budget categories and accounts. The numbers we received did not align
satisfactorily with the numbers reported to the Texas Education Agency (TEA) and collected in the
Academic Excellence Indicator System (AEIS) report for each campus. Similarly, data available on the
AISD website on budget and expenditures did match these other sources, for example, when looking at
expenditures per school. While some discrepancy is to be expected based on the accounting and/or
reporting method, it was nonetheless frustrating, and various consultations with experts and District
officials did not help reconcile or explain the source of the differences.
In the report, we identify which particular source we are using in our analysis of public funding
data.
B. ACTIVITY LEDGERS AND DEMOGRAPHIC DATA

In the course of our initial inquiry and analysis, we noted a black box as regards private
funding. Upon further inquiry with the District, we learned the best documentation of the flow of private
money to the schools was to be found in separate activity ledger accounts. We again used the Texas
PIA to obtain copies of activity account ledgers for each school in AISD for five years, 2006-2011. We
then excluded any schools that had not been continuously open for that period, as well as any atypical
AISD schools, such as Garza Independence High School (only two grade levels) and the Ann Richards
School for Young Women Leaders, in order to have consistency and continuity in our data analysis.
While working through the AISD activity account ledgers, which we secured through the District,
we noticed a number of data inconsistencies. Some ledgers were missing specific major accounts, like
Administrative and Checking, and some included fund balance forwards, while others did not. Two
different accounting systems were used. In addition, some years and schools were incomplete or missing
entirely from the data.
We sent a second and then a third PIA request to AISD, requesting the full data for each school
and finally received totals for all the schools, which included all accounts and all balance forwards.
The dates included in the campus-level activity ledgers ranged from September 1, 2006 through
April 1, 2011. So, to extrapolate the private subsidy fund totals to a five-year period (through August 31,
2011), we multiplied them by a factor of 1.09 (60 mos./55 mos.) to create an adjusted or projected total of
private subsidy funds.14
The number we use for private subsidy funds (PSF) throughout the report is the added total of
all 500-level accounts (revenue accounts including Revenue, General, Sales, Taxable and Sales, NonTaxable), except for 590s, Transfers In, to avoid double counting, and the 300 account (Fund Balance
14
Due to the incomplete data TEA provided after our first PIA request, we had to re-request the data for
several schools (Akins and Bowie High Schools and Bedichek, Dobiel, Fulmore, Kealing, Lamar, and Webb Middle
Schools). When we received this information, these schools ledgers included data through April 8, 2011 or, in some
cases, through April 30, 2011. So, ledgers through April 8, 2011 were multiplied by a factor of 1.086; and ledgers
through April 30, 2011 were multiplied by a factor of 1.07.
Appendix 26
102
Forward) for the beginning of the 2006-2007 school year, only to include those additional available
resources (or lack thereof) at each school.
To generate PSF/student per year figures, we divided the five-year revenue and 2006 fund
balance total at each school, adjusted for projection, by the five-year enrollment total at each school. We
contacted AISD Comptroller Brent Droll to verify the numbers we had received correctly reflected the
total funds going into and out of the school, but even he could not answer all of our questions regarding
the accounts and the flow of money into the schools. At times contradicting himself during the interview,
he promised a more complete follow-up to our PIA request on this issue, which, as of publication time,
has not been forthcoming. Finally, we consulted with an independent CPA to confirm the acceptability
and accuracy in our construction of the PSF tables, based on the activity ledger accounts.
We used the AEIS reports, online at http://ritter.tea.state.tx.us/perfreport/aeis/, as the source for
our average daily attendance (ADA) enrollment numbers for 2006-2010. For the school year 2010-2011,
ADA numbers were not yet available as of time of publication. So, instead we used the total enrollment
figures available at <http://ritter.tea.state.tx.us/adhocrpt/adste.html>.
We also used the AEIS reports for other demographic and achievement data, including minority
percentage, ED (economically-disadvantaged) percentage, LEP (limited English proficiency) percentage,
At-Risk percentage, college readiness scores, TEA academic rating, and any other numerical
demographic or achievement data used in this report unless otherwise cited.
The public funding numbers, broken down by general funds or all funds and then by function or
by program, were available from AEIS for school years 2006-2007, 2007-2008, 2008-2009, and 20092010 and used for this report.
C. PTA DATA AND ACCOUNTS
In the course of our interviews with Parent-Teacher Association (PTA) members, we discovered
yet another piece of the private-funding puzzle the PTA accounts. We learned that PTA revenue need
not be reported to the school; and, if spent on activities outside the classroom, like Halloween fairs or
school dances, it will not show up in the activity ledgers. Due to limited time and resources, we were
unable to do a line-by-line comparison of the schools PTA budgets and activity ledgers to determine the
exact degree of overlap between the two.
To acquire the PTA budgets and complete our picture of external, private subsidization of
schools, we took advantage of the PTAs IRS 501(3)(c) status and acquire their official revenue numbers
by looking at their tax returns.
IRS tax returns (Forms 990) for 501(3) non-profits are publicly available, but require
considerable paperwork, time, and often money to obtain from the IRS directly. Moreover, obtaining that
information requires finding the Employer Identification Number (EIN) for each organization, a
cumbersome process. This information is not available anywhere on school websites, PTA websites, or
AISDs website. While some PTAs voluntarily provide their budget to the public for review, the general
lack of transparency in this area is very troubling.
Because Texas PTAs use a group filing, the name under which the PTA is listed for tax purposes
is the same - PTA Texas Congress; but each organization must still file separately, under a unique EIN.
To locate the PTA EINs, we used the website Guidestar.org, a nonprofit navigator website, which listed
160 results for PTA Texas Congress. Fortunately, each one included a physical address, which we
cross-referenced with the addresses of AISD schools to identify which EIN matched which school.
We then used a different website, the Economic Research Institutes nonprofit search engine
(http://www.eri-nonprofit-salaries.com/index.cfm?FuseAction=NPO.Search&SearchType =Advanced&Cobrandid=0&Syndicate=No) to find the IRS Forms 990 for the past four available tax years 2006
through 2009 (which correspond to school years 2006-2007, 2007-2008, 2008-2009, and 2009-2010).
Appendix 26
103
Some schools had filed for all four of the years, but many had filed for a few (or even none) of these
years.
The cause of this lack of filing, which seemed to correspond to the PTAs of poorer schools, is due
to a recent change in the law, which had previously exempted nonprofits with an annual revenue of less
than $25,000 from filing an IRS Form 990. As we had no other source of data for these PTAs revenues,
we considered their revenue as negligible for the purposes of this report.
Overall, we found reliable tax data for 21 of the 74 elementary schools we compared, with 17 of
them falling in the top 19 schools in terms of PSF.
To determine PTA funds per student per year in the schools for which we had reliable tax data,
we used the IRS Forms 990 to determine each PTAs revenue over four years, and divided by the fouryear enrollment totals using AEIS reports.
Because we found it impossible to determine the exact degree of overlap between PTA revenue
and activity account revenue (though there is definitely a large amount of PTA revenue that is not counted
in the activity accounts, as determined by a search of big items like Spring Fling), we present the PTA
data as a side-by-side comparison, adding the two only to give an idea of the degree of inequity visible
when the PTA revenue is included as well.
D. INTERVIEWS
We selected several schools to analyze in further detail, based on which had the highest and
lowest PSF/student per year, divided into elementary, middle, and high schools. We contacted principals
and PTA officers at these schools to talk about fundraising activities, funding priorities, funding equity,
and thoughts on possible solutions. With their consent, we conducted phone interviews of up to one hour
with each contact and had each interviewee review and consent to our research protocol.
Attached are sample interview questions and the consent form.
E. STATISTICAL REGRESSION
To determine and measure the effect of private funds given to AISD schools on student and
school performance, we preformed linear regressions. These regressions used several measures of student
and school performance as dependent variables. For school performance, this study used the Texas
Accountability Rating System for Public Schools and Districts. Specifically, this study assigned each
school a number, which corresponds with the rating which the System gave that particular school. The
coding is as follows:
Exemplary
Recognized
Academically Acceptable
Academically Unacceptable
We ran a separate regression for each level of education (high school, middle school, and
elementary school). For high school, this dependent variable is denoted as hschlratings and is measured
on an annual basis. For middle schools, the dependent variable is midschlratings and measured as an
average over five years. For elementary schools, the dependent variable is denoted as elemschlratings and
measured as an average over five years. As a measure of student performance, this study uses several
Appendix 26
104
dependent variables: high school drop-out rate (dorate) and average score on the SAT (sat) and ACT (act)
for each school. These measures of student performance were chosen so as to capture the full range of
effects which could be the result of private funds used for schools.
To control for outside factors which contribute to student performance and which might be
correlated with private funds, several control variables are included in the regression. These variables are
percent of the student population which is black (black), Hispanic (hispanic), percent of the student
population which is economically disadvantaged (econ), student teacher ratio (str), and median value of
residential property (mvrp) for each school. Median value of residential property is used as a proxy for
median household income, which is positively correlated with disposable income, which, in turn, would
logically correlate with ones ability to donate private funds to a school. These control variables include
annual data for the high school regression and five-year average data for middle and elementary school
regressions.
The equation for each regression is shown below:
1.
2.
3.
4.
5.
6.
hschlratingsi = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui

midschlratingsi = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
elemschlratingsi = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
doratei = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
sati = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
acti = 0 + 1privi + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
where 0 is the y-intercept, 1, 2, 6 are the variable coefficients for each respective variable,
and u is the error term.
For all six regressions, it was expected that the p-value for black and Hispanic would show these
variables as statistically insignificant. It was also expected that the remaining variables are statistically
significant. The sign for 1 is expected to be positive for all regressions, save regression 4, in which the 1
is expected to be negative. The sign for 4 is expected to be negative for all regressions, save regression
4, which is expected to be positive. The sign for 5 is expected to be negative for all regressions, save
regression for 4, which is expected to be negative. The sign for 6 will be positive for all regressions,
save regression 4, which is expected to be negative.
Another test determined and measured the effect of the difference between state mandated and
actual Tier One allotments for to each individual school. To measure this, first, the difference factor
(dfact) is calculated for each school either annually (for high schools) or using a five-year average
(elementary and middle schools) by subtracting the calculated Tier One Allotment (ctoa) from the actual
Tier One Allotment (atoa). The equation for the factor is: dfacti = ctoai atoai, where ctoai is calculated
using the Texas Education Code, Chapter 42 and the Texas Administrative Code, Chapter 203, Title 19
and where atoai is provided from the Texas Education Agency (TEA) and i denotes each individual
school. This factor ranges from negative infinity to positive infinity, with most factor numbers centering
on zero with a range of a few hundred dollars. This factor, along with the several controls mentioned
above, were regressed onto the measures of school performance previously used in the private funds
regressions.
The regressions using dfact are as follows:
1.
2.
3.
4.
5.
6.
Appendix 26
hschlratingsi = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui

midschlratingsi = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui3.
elemschlratingsi = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
doratei = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
sati = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
acti = 0 + 1dfacti + 2blacki + 3hispanici + 4econi + 5stri + 6mvrpi + ui
105
It is expected that all s will be statistically significant, with the exceptions of 2 and 3. It is also
expected that all s will maintain the same signs as in regressions 1-6, with the exception of 1, which is
expected to have a negative sign.
The relevance of each regression is measured by the r-squared and adjusted r-squared. This study
uses a 95% confidence interval for measuring statistical significance for each .
F. PUBLIC FUNDING EXCEL DOCUMENT METHODOLOGY
The Texas Civil Rights Project collected data from the Texas Education Agency (TEA) and AISD. Using
enrollment and funding data provided by both entities, we identified some major inconsistencies in the
distribution of public education funding.
In the interest of making this data accessible to the public, an Excel data sheet is now available at our
website TexasCivilRightsProject.org.
The Excel document allows users to click into the different cells to track our root formulas and
methodology directly. For convenience, this is a brief overview of the Excel document:
COLUMNS
B-F
The dollar amount AISD reported spending on each student at a particular elementary
school for the 2007-2008, 2008-2009, 2009-2010, and 2011-2012 academic years
Column G
The average amount of money AISD reported spending on each student over the last four
years
Column H
The total number of students enrolled during the 2010-2011 academic year, reported by
TEA
Column I
Total number of economically-disadvantaged students at each school
Column J
The percent make-up of economically-disadvantaged (ED) students at each school
Column K
The number of economically-disadvantaged (ED) students multiplied by the weight

assigned by the District (0.2). The significance of this is that the District has determined that
each economically-disadvantaged student should have an extra 0.2 weight, as compared to
non-economically-disadvantaged students, in order to allocate more funds to economicallydisadvantaged students.
Column L
The weighted number of economically-disadvantaged students added to the total number of

students enrolled gives a new WADA number of economically-disadvantaged students
enrolled
Column M
The WADA number of economically-disadvantaged students enrolled divided by the total

students enrolled gives a factor with which to determine how much funding each school
should receive
Column N
Multiply the factor by the five-year average cost per student in order to determine how much
money each school would be getting, based on the modified WADA
Column O
The difference between the modified WADA cost per student, representing the additional
funding every school would be receiving if WADA was appropriately applied across the
board and assuming the district had more funding
Column P
The difference between the modified WADA and the average of every schools five-year
average cost per student, representing the amount of funds each school would receive or lose
Appendix 26
106
if the District would redistribute its funds based on the modified WADA
G. COMPLICATIONS AND OBSTACLES
The largest obstacle encountered in our research was the lack of transparency. It took weeks of
scouring the data AISD provided in response to our initial PIA request to realize the full extent of the
inconsistencies, errors, and missing pieces of the data, and then several weeks to actually obtain from
TEA the data we had initially requested in full. In addition, the AISD comptroller did little to help us
understand the confusing and at times contradictory numbers from AISD.
We hope this report, among other things, will bring to light the necessity of tracking the money in
a clear and transparent manner used to privately subsidize education.
In Facts for Education Advocates: The

Economic Impact of Education, the College
Board determined that:
A high school graduate lives nine years
longer than a dropout and is less likely to
suffer from cardiovascular disease, cancer,
lung disease, diabetes, and infection.
Individuals with a higher education level
are far less likely to participate in
government-funded social programs, like
Medicaid and food stamps.
Arrested or incarcerated persons are less
likely to have completed high school.
Approximately 75% of state prison
inmates, 59% of federal inmates, and 69%
of jail inmates did not complete high
school.
In terms of reducing policing, government
programs to combat crime, state-funded
victim costs, trials, sentencing and
incarceration, the average savings per high
school graduate would be $26,000/year.
Appendix 26
Democracy in Texas?
Texas' Faulty Voter
Registration Procedures
December 2013
A HUMAN RIGHTS REPORT FROM THE TEXAS CIVIL RIGHTS PROJECT
Appendix 27
CREDITS AND ACKNOWLEDGMENTS

We are particularly indebted to Emily Pendleton who gave her time, effort, and skill,
helping to research, oversee, and coordinate this report.
This report also could not have been possible without the hard work and dedication of
many TCRP volunteers and staff. We give each and all credit and thanks for their efforts:
Gus Bunin
Whitney Knox
Maisie Kaiser
Scott Jameson
Lane Kazmierski
Patricia Kelly
Cooper Shear
Amanda Hill
David Chincanchan
Michael Kurban
Also, a special thanks goes out to other contributors with knowledge of matters in this
report for their time and expertise, without which we could not have completed this report.
Alex Canepa
Janet Monteros
Jacklyn Williams
Bruce Elfant
Dianne Wheeler
Dee Lopez

Michael Tigar Human Rights Center
Austin, TX 78741
Board of Directors
Pablo Almagur, Roxann Chargois, Molly Gochman, Renato Ramirez,
Leona Diener, Carlos Crdenas, Chuck Herring, and Tom Gutting
www.texascivilrightsproject.org
(512) 474-5073 (phone) * (512) 474-0726 (fax)
Texas Civil Right Project, 2013
All Right Reserved
Appendix 27
TABLE OF CONTENTS
I.
Introduction: Voting Registration Complaints Just the Tip of the Iceberg.. ............. 1
II.
Recommendations ..................................................................................................... 2
III.
Texas Long and Turbulent History of Racial Disenfranchisement ............................ 7

A. Texas History .................................................................................................... 7
B. The Voting Rights Act. ..................................................................................... 13
C. The Shelby County v. Holder Decision ............................................................... 17
IV.
Current Voter Registration Practices are Convoluted and Ineffective ...................... 20

The Department of Public Safety Registration .................................................... 21
V.
High School Administrators Disregard Responsibility to Register Students.............. 23

School District Survey Response Map ................................................................ 27
VI.
League of Women Voters: Dissatisfied with Cooperation from High Schools .......... 28
VII.
Elections Director: Keith Ingram ............................................................................. 31

A. Summary of Interview........................................................................................ 31
B. Follow-Up to Ingram Interview .......................................................................... 33
VIII.
Public Agencies Fail Their Duty to Provide Registration Assistance to Patrons ........ 35
A. Public Agencies Have Duty to Provide Voter Registration Assistance
to Patrons ........................................................................................................... 35
B. The Texas Election Code Mandates Specific Voter Registration
Services by Designated Agencies ....................................................................... 35
C. Additional Duties for DPS and Marriage License Offices ................................... 36
D. Voter Registration Agencies Fail to Adhere to Duties Mandated
by the Texas Election Code ................................................................................ 37
E. The Health and Human Services Commission (HHSC) ...................................... 37
F. The Department of Aging and Disability Services (DADS) and
the Department of State Health Services (DSHS) .............................................. 37
G. The Department of Assistive and Rehabilitative Services (DARS) .................... 38
H. The Department of Public Safety (DPS) ............................................................. 38
I. Marriage License Offices and Public Libraries ................................................... 39
J. Conclusion ......................................................................................................... 39
IX.
Volunteer Deputy Registrars: Lacking in Uniformity and Haphazard ....................... 41

i
Appendix 27
A. Methodology...................................................................................................... 43
B. Maps .................................................................................................................. 44
C. Deputy Registrar Timeline ................................................................................. 45
X.
Appendix ................................................................................................................ 48
A. Election Code Excerpts ...................................................................................... 49
B. Survey Instruments for High School Compliance ............................................... 55
C. Ingram Interview Transcription .......................................................................... 59
XI.
Bibliography ............................................................................................................ 64
ii
Appendix 27
I. INTRODUCTION:
This human rights report has its origins in the November 2012 national election.
Immediately after that election, the Texas Civil Rights Project began to receive anecdotal reports
form Bexar and Harris Counties that people who had registered to vote were actually not able to
cast their ballots because their names did not appear on the voter lists.
The more we investigated these complaints, the more it became clear that this was a
result of the hodge-podge way with which voter registration cards are processed by state and
local agencies and within agencies. Peoples registration certificates simply sit on desks for long
periods of time before finally wending their way to the local county clerks for official entry onto
the electoral list.
The same appeared to happen in high schools, which must offer the opportunity for
students, who will be eligible for the next election, to register to vote. Often this doesnt happen,
and even when it does, these enrollment forms somehow never even make it to the county voter
registrar or clerk.
These two issues alerted us to the fact that the voter registration procedures around Texas
might be broken and in need of repair. We therefore decided to embark upon an analysis of the
process around Texas, and found that, indeed, it is in disarray with no clear uniformity and no
clear direction from the Texas Secretary of State, who serves in an election oversight role. In
fact, the Secretarys Elections Division director admitted in an interview that he wasnt even sure
what his job was, other than to follow the law. He certainly did not reflect the dynamic
leadership of earlier predecessors in office.
Given that the legislature has made it more difficult to vote in recent years, reversing an
earlier trend of facilitating voting, it is critical that people be able to register to vote promptly and
properly.
To that end, then, this report presents an overview of problematic voter registration areas
and suggests a series of recommendations to correct the situation.
Appendix 27
II. RECOMMENDATIONS FOR IMPROVING VOTING IN TEXAS:

In reviewing the policies and procedures under the Texas Election Code and by
interviewing voter registrars and high school administrations, representatives of voter
registration agencies, as well as Keith Ingram, the Elections Division Director for the Texas
Secretary of State, several areas for substantial improvement are evident.
To address those issues, TCRP makes the following recommendations.
1. Voter Registration Agencies Should Employ Best Practices in Registering Voters
by Using or Replicating DPS Electronic Monitoring System
Voter registration agencies like the Department of Public Safety are critical in registering
voters. It is important that these agencies accurately and competently perform their function of
registering voters. In recent years, DPS has initiated an electronic registration system that
simplifies the registration process. When applying for licenses or changing personal information
on file, the applicants information is entered directly into a computer database. The system
allows registrant information to be sent to the Secretary of States office electronically,
eliminating delay and errors associated with mailing paper registration forms and manually
entering information onto a database. The system also reduces costs by minimizing data entry
personnel and mailing expenses.
This system should be utilized by all voter registration agencies. Availability of such a
system on a wide-scale basis would result in increased cost savings as well as more accurate and
efficient conveyance of voter registration information.
2. The Texas Education Agency Also Must Take Responsibility in Holding High
Schools to Their Duties Under Section 13 of the Texas Election Code and
Facilitate Teacher Deputization
The Texas Education Agency (TEA) must participate in ensuring high schools meet their
duty under Section 13 of the Election Code. High school officials tend to be unaware of their
obligation to administer voter registration cards to eligible seniors twice a school year.
To better implement Section 13 of the Election Code, TEA should enact and enforce a
policy that allows teachers of government and economic course curricula to distribute and collect
voter registration forms. Such a policy would automatically deputize government and economic
course teachers as registrars for their schools. Teacher deputization would aid in the overall goal
of high schools taking an active role in registering young voters, and would help schools meet
2
Appendix 27
their Section 13 duty. High school officials also must be held accountable for assuring the
delivery of completed registrations to the proper authorities, something that currently occurs
haphazardly.
3. Registration Confirmation Receipts Must Be Provided to All Voter Registrants
A formal receipt must be provided to all voter registrants, whether they are registering to
vote in conjunction with applying for benefits or registering with a deputy registrar. Receipts are
vital to the registration process. Without receipts, citizens have no proof or confirmation of
registration and have no recourse if they are denied the opportunity to vote on Election Day.
Some voter registration agencies and voter registrars do provide registrants with a receipt, but
others do not. The current system is also haphazard at best.
Even where receipts are provided, in some cases the receipt serves as a dual receipt for
registration as well as agency-specific services received that day. Such is the case with DPS
where only one receipt is given to confirm both electoral registration and that a person received
services. In these instances, it is not always clear that the receipt serves to confirm registration
rather than serving only as a receipt of agency services. For this reason, separate and formal
receipts are necessary to distinguish voter registration from a receipt the client obtains for
receiving services.
4. The Texas Legislature Must Pass Laws To Enforce the Election Code and Grant
Enforcement Power to State Elections Officials
The Texas Election Code is admirable. However, without enforcement power, it falls
short of protecting citizens right to vote. A recurrent theme throughout researching this report
has been lack of authority to enforce. There are very few provisions in the Election Code that
allow for criminal or civil sanctions for breach of the statute. As a result, entities bound with
duties under the Election Code do not face repercussion when they fall short of their duties or
utterly fail to comply with their duties altogether.
As sections of this report discuss, virtually all of the entities bound by the Election Code
fail to fulfill their duty. This is true whether the entity is mandated to register voters, provide
outreach to potential voters, or deputize registrars.
Keith Ingram, although expressing frustration after finding that some voter registration
agencies were not in fact registering voters, stated that his office was incapable of sanctioning or
forcing the agencies to act under the Code. To encourage voter participation, promote civic duty,
and protect the right to vote, the Secretary of State and election officials, along with community
3
Appendix 27
members, must buy into the role prescribed by the Election Code, and challenge lawmakers to
enact enforcement powers, including a citizens private cause of action with court costs and
attorneys fees if the citizen prevails.
5. Improvements Must Be Made to the Voter Deputization Process
(a) The Volunteer Registrar Deputization Process Should Become Streamlined
and Standardized Across Texas
The process required to become a volunteer deputy registrar needs to be streamlined so
that deputization in one county applies statewide. When training sessions are inconsistently
offered across the state and each county requires different procedures and deputization within
that county, a great burden is placed on volunteers to navigate the process. Not only can it be
difficult to identify and locate the training for the particular geographic region, but also requiring
persons to become deputized in each county they wish to serve creates unnecessary hardship.
In fact, such requirements may deter volunteers from participating at all. Promoting civic
engagement and protecting against voter fraud was the initial intention of instituting the
volunteer deputy registrar position; the government must be on guard that county practices do
not become a barrier to legitimate political involvement.
(b) Volunteer Deputy Registrars Must Be Permitted To Receive Completed
Registration Forms from Citizens Registered in Any County
As it stands, volunteer deputy registrars are only authorized to collect completed
registration forms from citizens of the county for which the volunteer is deputized. This serves as
a barrier where, as often happens, registrars volunteer at large gatherings and events to register
citizens, many of whom may not be from the same county as the volunteer deputy registrar. This
is particularly problematic, for example, where cities cross county boundaries. It makes no sense
to require multiple-county deputization.
Although mail-in registration forms help to better alleviate this inconvenience,
authorizing volunteer deputy registrars to accept these registrations is a better guarantee that the
registration will be submitted if returned by the deputy registrar to the proper authorities.
6. The Secretary of State Must Take a More Pro-Active Role in Encouraging High
School Voter Registration by:
a) Establishing and promoting regular contact with, and coordination between, voter
registration agencies and high schools.
4
Appendix 27
b) Actively seeking confirmation that voter registration agencies and high schools
are fulfilling their duties under the Election Code.
c) Providing more outreach to high school administrations regarding their duty to
register voters and the importance of registering students to vote. Contact with
administrations should require response and encourage dialogue between
administrations and the Secretary of State.
d) Take responsibility in making sure citizens are knowledgeable about voting laws
and requirements by directing outreach efforts to communities. This includes
vigorous use of both traditional and social media making outreach materials
available in at least ten languages: Arabic, Chinese, English, German, Hindi,
Italian, Korean, Spanish, Urdu, and Vietnamese
7. Additional Acceptable Documents for Purposes of Identification Should be
Considered
The implementation of the new voter ID law has created a significant barrier for some
citizens. It can be time consuming and costly to obtain a currently required ID. Although the
DPS has stepped in to help cover the costs of getting an Election Identification Certificate, other
obstacles remain. There are those who do not have reliable means of transportation or have work
obligations that make it difficult to find the time to make a trip to a DPS office that may be miles
away. Moreover, many citizens, who are eligible to vote, obtain IDs which contain their photo
and full name, such as badges for public employees, school issued IDs for university students,
among many others. Since The Secretary of State is not taking measures to monitor the issues
that arise due to the voter ID requirements, these alternative IDs should be sufficient proof of
voter identity.
8. The Federal Court in San Antonio Should Accept the U.S. Department of
Justices Efforts to Re-Subject Texas to the Voting Rights Acts Pre-Clearance
Requirements
Texas is vulnerable to regressive and discriminatory voting practices without the
protection of the pre-clearance requirements of the Voting Rights Act. On July 25, 2013, a month
after the Supreme Courts Shelby decision, Attorney General Eric Holder asked the U.S. District
Court in San Antonio to re-subject Texas to federal preclearance. The Attorney General cited
Texas recent history of racial discrimination as the main motivation behind his request to bailin Texas.
Appendix 27
This was the Department of Justices first such action after Shelby County v. Holder. The
DOJ decision to make Texas a top priority shows the threat that Texan minority voters face.
The Texas Civil Rights Project supports the DOJs motion to bail-in Texas to a preclearance regime because, in the words of Attorney General Holder, [we must] use every tool at
our disposal to stand against discrimination wherever it is found. 1
Eric Holder. National Urban League Annual Conference, Philadelphia, PA., July 25, 2013.
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130725.html.
6
Appendix 27
III. TEXAS LONG AND TURBULENT HISTORY OF RACIAL DISENFRANCHISEMENT:

Like many areas of the country, Texas has a long and turbulent history of voting
discrimination and suppression. Minority voters have endured electoral obstacles for nearly a
century and a half, and recognizing this history is essential to understanding the need for
improving voter registration procedures across the state and generally facilitating the franchise.
The right to vote is the heart of a democracy. Each citizen should be able to exercise this
fundamental liberty without discrimination or impediment. History, however, chronicles the
opposite tale. Efforts to suppress the vote of minority persons, often violent, have recurred since
adoption of the Fifteenth Amendment to the U.S. Constitution.2
From the Nineteenth Century on, the South in particular has been rife with voter
suppression measures and machinations. The Ku Klux Klan took passage of the Fifteenth
Amendment and enfranchisement of black males as a threat to white supremacy, a way of life
which only Democratic dominance in southern state legislatures would protect. Indeed, African
American voters tended to vote in high numbers, proportionate to their population, and voted
Republican because of President Abraham Lincoln and the post-Civil War Republicans, who
ushered through the Thirteenth, Fourteenth, and Fifteenth Amendments and various protective
federal civil rights laws.3
Throughout the 1880s and well into the Twentieth Century, the KKK used violence and
intimidation to scare African Americans away from the polls. The suppression of opposing party
affiliation votes continues into todays Texas, especially in light of the states increasing
minority populations.
A. Texas History4
Since gaining statehood in 1845, Texas has used various methods of disenfranchisement
to prevent blacks and Texas citizens of Mexican origin (Tejanos) from meaningful political
participation. Racial voting discrimination is an insidious and pervasive evil perpetuated in
The Fifteenth Amendment prohibits the federal and state governments from denying a citizen the right to
vote on the basis of "race, color, or previous condition of servitude." It was ratified on February 3, 1870,
as the third and last of the Reconstruction Amendments, and adopted on March 30, 1870.
In fact, it was the civil rights movement in the mid-Twentieth Century that saw the seismic realignment
of African Americans into the Democratic Party and then, as a result, the massive shift of Southern whites
into the Republican Party
3
We are grateful to Cooper Shear for his historical research and authorship of this section.
7
Appendix 27
certain parts of our country through unremitting and ingenious defiance of the Constitution. 5
The fight for equal suffrage for blacks and Tejanos has continued only in fits and starts,
advancing only grudgingly against minority interests and with compromising steps.
Anglo Americans disenfranchised Tejanos from the earliest days of Texas history by
prohibiting bilingual ballots in some southern areas. 6 While statewide efforts to limit the vote in
Texas at the 1845 statehood Constitutional Convention failed, protests and threats from AngloAmericans in many counties were constant reminders of a fragile franchise. 7 Texas used
segregation and disenfranchisement to fix its Mexican problem, much like the rest of the South
did for its Negro problem.
Twenty-two years after Texas became a state, the Reconstruction Acts of 1867
enfranchised the states black citizens. In the years following blacks actively participated in
elections. Six of the black delegates elected during these years succeeded in blocking the poll tax
as a voting requirement at the Second Constitutional Convention in 1875. 8 Between 1871 and
1895 at least forty-one black legislators served in the Texas government, thirty-seven members
of the House and four Senators, as well as many more city and county officials. 9 However,
gerrymandering of majority black counties diminished black access to legislative and judicial
seats. After the bright years following Reconstruction, the situation for minority voters in Texas
quickly diminished.10
The Fifteenth Amendment, passed in 1870, held that the right of citizens of the United
States to vote shall not be denied or abridged by the United States or any State on account of
race, color, or previous condition of servitude. Congress possessed enforcement authority over
the states.
5
South Carolina v. Katzenbach. 383 U. S. 301. 309 (1966). Supreme Court rejected South Carolinas
challenge to the. Voting Rights Act of 1965 and holding it was a valid exercise of Congress's power under
the enforcement clause of the Fifteenth Amendment.
6
David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986 (Austin: University of
Texas Press, 1987), 130.
7
Ibid. 39.
Chandler Davidson and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the
Voting Rights Act 1965-1990 (Princeton University Press, 1994), 234.
Ibid. 235.
10
Alwyn Barr, Black Texans: A History of African Americans in Texas, 1528-1995 (University of
Oklahoma Press, 1996), 80. Texas effectively banned blacks from elections a generation after
emancipation. Black voter turnout collaspsed from 100,000 in the 1890s to about 5,000 by 1906.
8
Appendix 27
However, the U.S. Supreme Court began chipping away at the Fifteenth Amendment as
early as 1876 with Cruikshank v. United States, in which Chief Justice Waite declared that the
amendment did not positively confer the right of suffrage on anyone. 11 In response to the
limited non-Anglo political power that existed in Texas in 1876, local whites, as in other parts
of the South, resorted to extra-legal devices, such as fraud, intimidation, intrigue, and murder, to
block black and Tejano voting. 12
Anglo cattle barons in rural Texas, in the words of one Texas scholar, established an
economic, social, and political feudalism that was natural and not necessarily resented by
those who submitted to it.13 Texas annexation by the United States merely lightened the
complexion of the patrones (bosses) and consolidated the rural Tejano vote of impoverished
rancheros and indebted working class peones behind the now mostly Anglo landowning elite.
Farmers accused the rancheros and Democratic officials of bossism and described their tactics
as corralling and herding Mexicans. 14 Throughout the second half of the Nineteenth Century
new farm settlers found it difficult to gain political power in this smooth running machine of
established landowner bosses, supported by their Tejano workforce constituency. 15
Urban areas with large Mexican American populations protected the franchise for
Tejanos in the latter half of the Nineteenth century. The culture of bossism was much more
difficult to implement in urban areas due to increased employment opportunities. San Antonio
had fifty-seven out of eighty-eight Tejano alderman between 1837 and 1847. Despite efforts to
protect the Tejano vote, the proportion of city officials between 1875 and 1884 of Mexican
11
Walter Burnham, Voting in American Elections: The Shaping of the American Political Universe since
1788 (Academia Press, 2010), 31-32.
12
Darlene Clark Hine, Steven F. Lawson, Merline Pitre, Black Victory: The Rise and Fall of the White
Primary in Texas (University of Missouri Press, 2003), 72.
13
Montejano, Anglos and Mexicans, 8. See also, Arnoldo de Len, Managing the Mexican Vote, in
Mexican Americans in Texas: A Brief History ( Harland Davidson, Inc., 1991), 40.
14
Montejano, Anglos and Mexicans, 130.
15
Ibid. The King Ranch according to Jim Wells testimony, "directed five hundred Mexican votes
through friendship and love': 'The King people always protected their servants and helped them when
they were sick and never let them go hungry, and they always feel grateful, and it naturally don't need any
buying, or selling or any coercion - they went to those that helped them when they needed help.'
Moreover, explained Wells, this type of guidance was a natural idea among Mexicans: 'The Mexican
naturally inherited from his ancestors from Spanish rule, the idea of looking to the head of the ranch the
place where he lived and got his living for guidance and direction. It came legitimately and naturally
from that Spanish rule that idea did.'"
9
Appendix 27
descent dropped more significantly than the proportion Tejanos in the population. 16
The early 1900s offered Tejanos the choice between disenfranchisement and a
manipulated vote. Texas Anglos believed that Tejanos were their racial inferiors who were a
political menace and supported anyone who would give them a handout.17 New farmers who
moved to Texas with political aspirations confronted politicians who were kept in power by
Tejano voters. The easiest way to defeat this machine was to disenfranchise the old-timers base
of support, the Texas Mexicans.
In 1902, some counties established a poll tax. The following year, the Terrell Election
Law shortened the poll tax registration and payment time to between October and February.
Terrell himself explained the legislation as an effort to prevent the flood gates for illegal voting
as one person could buy up the Mexican and Negro votes.18 In 1904, the State Democratic
Executive Committee approved a measure compelling county committees to require voters in the
Democratic primary to affirm, I am a white person and a democrat.19 During the same year, the
Texas electorate established a poll tax using a constitutional amendment. From 1903 to 1905, the
Texas legislature enacted laws that codified the poll tax, encouraged use of the exclusive white
primary by the major parties, and established an annual four-month voter registration period that
ended nine months before the general election.20
Language discrimination uniquely affected Mexican-American access to the ballot box.
In 1918, interpreters were banned from polling places, an effort clearly aimed to prohibit those
with limited English knowledge from voting. Combined with the segregation of Tejanos from
Texas schools, this ban created a systemic barrier to equal voting rights. Texas social and
economic oppression made it nearly impossible for minorities to effectively redress their
deprivation through political participation.
Tejanos were subjects of manorial society until they were formally disenfranchised
around 1914 in many South Texas counties through establishment of exclusive white mens
primaries; Tejanos were only able to cast their vote for candidates whom they had no
participation in selecting. Because the state was overwhelmingly Democratic, the primary was
16
Davidson and Grofman, Quiet Revolution in the South, 236.
17
Montejano, Anglos and Mexicans, 131.
18
Ibid. 143.
19
Ibid.
20

10
Appendix 27
the most important election.
The general election was merely a de facto ratification of
candidates chosen in the primary. In response to a successful litigation by a black Waco citizen
that challenged a nonpartisan white primary in 1918, the Texas legislature passed a law in 1923
stating, In no event shall a negro be eligible to participate in a democratic primary election held
in the State of Texas. 21
The Democratic Party was the only effective political body in Texas at the time the
legislature eliminated black membership. Election officials were instructed to destroy the ballots
of any Negro who attempted to vote.22 No other ex-confederate state took such an action; for
black Texans the 1923 statute ended their already limited involvement and influence in state and
local politics. The white primary was like an iron curtain, for even if blacks became literate,
acquired property, and paid poll taxes, they could not conceal or change the color of their
skins.23
After the U.S. Supreme Court struck down explicit white primaries in Nixon v. Herndon
(1927), the Texas legislature enacted a law allowing political parties total autonomy to decide
their membership. This allowed the State to transfer authority to the Democratic convention,
which rapidly adopted the policy of white-only primaries. The Texas Supreme Court held in
cases throughout the 1930s that political parties were voluntary private organizations, not state
organizations, and therefore had the right to dictate membership qualifications.
White primaries had obvious and negative effects on minority populations. Texas
congressional candidates could effectively ignore their black constituents and close their eyes to
brutality such as lynching and KKK activities, and still win elections because minorities could
not vote for a candidate who would represent their interests. 24
It was not until 1944, when then-attorney Thurgood Marshall took on Smith v. Allwright,
that the Fifteenth Amendment would finally apply to white primaries in Texas. Marshall was the
counsel for a black Texas doctor who was denied the vote in a primary election. He lost the case
in Texas, but won on appeal to the U.S Supreme Court in 1944. The high court ruled that the all21
22
Darlene Clark Hine, Steven F. Lawson, Merline Pitre, Black Victory: The Rise and Fall of the White
Primary in Texas (University of Missouri Press, 2003), 69.
23
Ibid.
24
Juan Williams, Foreword to Voting Rights and Wrongs: The Elusive Quest for Racially Fair Elections
by Abigail Thernstrom, (Washington D.C: AEI Press, 2008), xvii.
11
Appendix 27
white primary violated the Fifteenth Amendment because it endorses, adopts and enforces the
discrimination against Negroes.25 Justice Thurgood Marshall later would recount this case as his
favorite.
Texas looked for new ways to limit minority voters impact after the Court struck down
the all-white primary in 1944. Black enfranchisement seemed all but inevitable, given minority
participation in World War II. However, vote dilution rendered the minority franchise ineffective
in many Texas towns. Vote dilution can occur through a variety of means, some as innocuous as
local newspapers that run articles hinting there will be high minority turnout at upcoming
elections.26
Bloc voting of one group to keep another from adequate political representation is nearly
impossible to quantify; it is not giving minorities half a vote, but instead making minority votes
worth half by pitting one group against another. An example of the effectiveness of vote dilution
is found in Taylor, Texas, where forty percent of the population was black or Latino, but where
no minority members were elected to city positions until 1965.
The Twenty-Fourth Amendment prohibited the poll tax in federal elections in 1964.
Texas was one of only five states to maintain its poll tax even after the amendment was ratified. 27
The poll tax operated another two years in state elections. In 1966 the U.S. Attorney General
brought Texas to court under the authority of the Twenty-Fourth Amendment and the recently
passed Voting Rights Act of 1965 to have Texas state poll tax invalidated because of its
purposeful disenfranchisement of black and Tejano voters. All previous attempts to abolish the
tax had failed, even though the tax clearly had negative effect on minority voter turnout.
Shortly thereafter, excessive candidate filing fees were found unconstitutional in Bullock
v. Carter because the very size of the fees imposed under the Texas system gives it a patently
exclusionary character [and] there is the obvious likelihood that this limitation would fall
more heavily on the less affluent segment of the community, a segment primarily made up of
disadvantagedminorities.28
In 1975, Texas was subjected to federal preclearance under the Voting Rights Act. The
25
Ibid.
26
Chandler Davidson, Minority Vote Dilution (Harvard University Press, 1984), 2-5.
27
28
Bullock v. Carter, 405 U.S. 134 (1972).
Appendix 27
12
Texas government now had to gain federal permission preclearance for any changes to its
voting procedures and prove that any proposed legislation did not have the effect of denying or
abridging the right to vote on account of race or color.29
B. The Voting Rights Act
One of the nations premier civil rights accomplishments is the Voting Rights Act of
1965. This legislation was passed by the 89th U.S. Congress and signed by President Lyndon B.
Johnson and established rigorous protections for the right to vote. The law initially aimed to
safeguard the franchise for African Americans against impediments by Southern states, such as
the notorious literacy tests. The VRA eventually expanded to protect the integrity of voting
rights for minority citizens across the nation.
The act has nineteen sections; among most important is Section 5, which requires certain
areas to gain federal permission preclearance for any changes to their voting procedures. A
jurisdiction subject to Section 5 preclearance must submit all changes to voting laws or practices
to the U.S. Department of Justice (DOJ) or the U.S. District Court for the District of Columbia
for review. If the proposed legislation has the effect of denying or abridging the right to vote on
account of race or color, then the law will be blocked. 30
When Congress originally enacted the VRA, it determined that discriminatory voting
practices were more prevalent in certain areas of the country than in others. Section 4 addresses
this issue by generating a formula to target those jurisdictions subject to Section 5 preclearance. 31
Areas covered by the Section 4 coverage formula include: Alabama, Alaska, Arizona, Georgia,
Louisiana, Mississippi, South Carolina, Texas, most of Virginia, four counties in California, five
counties in Florida, two townships in Michigan, ten towns in New Hampshire, three counties in
New York, forty counties in North Carolina, and two counties in South Dakota.32
Texas was not originally subject to Section 5 preclearance. As a result, the states
minority communities continued to face rampant electoral discrimination and disenfranchisement
until 1975, when Congress extended the preclearance requirement to Texas. Preclearance has
29
Voting Rights Act of 1965, Pub. L. No. 107-296,

http://www.ourdocuments.gov/doc.php?doc=100&page=transcript.
30
79
Stat.
437
(1965).
Ibid.
Section 4 of the Voting Rights Act. U.S. Department of Justice: Civil Rights Division,
http://www.justice.gov/crt/about/vot/misc/sec_4.php#sec4
31
Section 5 Covered Jurisdictions. U.S. Department of Justice: Civil Rights Division,

http://www.justice.gov/crt/about/vot/sec_5/covered.php.
32
13
Appendix 27
been a useful tool used to reject a host of clear discriminatory measures by the Texas legislature,
including a re-registration requirement for all the states voters.33 Indeed, since its application to
Texas, preclearance has blocked every legislative and congressional redistricting scheme as
discriminatory.
In the past decade and a half, there have been significant VRA successes for Texas
minority voters. In 2001, for example, the initial Congressional redistricting plan caus[ed] the
net loss of three districts in which the minority community would have had the opportunity to
elect its candidate of choice. 34 The state was forced to create a new, equitable redistricting
scheme.
In 2006, the North Harris Montgomery Community College District attempted to cut
election-day polling locations from 84 to 12 for the May election. Not only would this have
decreased convenient polling location opportunities for all citizens, but these 12 locations were
positioned at strategic spots around the district favoring the white vote. The site selected to serve
the smallest amount of minority voters would serve approximately 6,500 voters whereas the site
to serve the largest percentage of minority voters within the district would serve more than
67,000 voters.35 The Justice Department determined the district was unable to prove that this
change would not have a retrogressive effect on minority voters.36
Harris County became known as a hot spot for voter suppression actions as the Hispanic
population rose and elections became increasingly tighter. Paul Bettencourt served ten years as
the elected Harris County Tax Assessor-Collector until he resigned in late 2008, right after being
re-elected to a third term, to pursue a private business venture. However, there was more to his
untimely resignation than just a new business endeavor. Only a few days prior to his formal
resignation, the Texas Democratic Party and the Harris County Democratic Party filed a federal
suit against him for failing to process approximately 7,000 provisional ballots and 1,000 mail-in
Chandler Davidson and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the
Voting Rights Act 1965-1990, Princeton University Press, 1994, 240.
33
Ralph F. Boyd, Jr., (Assistant Attorney General) to Geoffrey Connor (Acting Texas Secretary of
State), Section 5 Objection: Redistricting Plan (House), November 16, 2001.
http://www.justice.gov/crt/about/vot/sec_5/ltr/l_111601.php.
34
Rachel Maddow, Little Faith House Can Secure Voting Rights after SCOTUS Blow, The Rachel
Maddow Show, MSNBC.
35
The United States of America, Plaintiff, v. North Harris Montgomery Community College District, and
the Board of Trustees of the North Harris Montgomery Community College District, Defendants., WL
2515711 (S.D.Tex. 2006).
36
14
Appendix 27
ballots, and failing to register voters due to overly technical reviews of their applications.
Further, Bettencourt refused to provide requested information on voter registration procedures,
which were not discovered until after the 2008 election deadlines had passed. Therefore, many
provisional ballot votes went uncounted.37
Upon Bettencourts resignation, the Harris County Commissioners Court had to appoint
his replacement, with a special election to follow in 2010 to fill the remainder of the term. Rather
than appointing Bettencourts Democratic opponent in the 2008 election, Dr. Diane Trautman,
the Commissioners Court appointed Republican Leo Vsquez.
A year later, the Texas Democratic Party and the Harris County Democratic Party filed a
complaint against Vsquez for similar election suppression activities, including improper denial
of approximately 65,000 voter registration applications. In August 2010, Vsquez admitted to
rejecting over 1,000 applications for not providing a Texas drivers license number or Social
Security number, even though federal law does not require these items to register to vote.38
Vsquez admitted to rejecting over 1,500 citizens for allegedly submitting multiple applications
even though submission of more than one application is not a lawful reason for rejection.
Vsquez also admitted to the pending status of about 10,000 applications that were properly
filled out and timely received prior to the 30-day election cutoff and more than seven days before
the time when county voter registrars were required to process applications. But, under Vsquez,
those applications were also ignored.39
In 2011, the Texas Legislature passed a law that required all voters to present state-issued
photographic identification in order to vote. It justified this law by claiming that it protected
against voter fraud. The U.S. Department of Justice saw through this guise, noting that the state
did not provide evidence of significant voter fraud. DOJ found that the Voter ID law unfairly
targeted Hispanic voters who were 120 percent more likely than a non-Hispanic registered voter
Texas Democratic Party & Harris County Democratic Party v. Paul Bettencourt, Harris County Tax
Assessor & Voter Registrar, No. 4:08-CV-03332 (U.S. District Court for the Southern District of Texas,
Houston Division 2008).
37
38
42 U.S.C. 1971.
Texas Democratic Party & Harris County Democratic Party v. Leo Vasquez, Harris County Tax
Assessor Collector & Voter Registrar, No. 4:08-CV-03332 (U.S. District Court for the Southern District
of Texas, Houston Division 2008).
39
15
Appendix 27
to lack this identification. 40 In addition, the cost associated with these IDs placed strict,
unforgiving burdens on the poor; Attorney General Eric Holder even denounced the Voter ID
law as a poll tax.41
The U.S. District Court for the District of Columbia also found that Texas 2011
redistricting plan was retrogressive. The states population had grown by 4.3 million, the
majority of which were minority persons (two-thirds Hispanic and 11 percent African
American). Nevertheless, the new districts were drawn to allow Republicans to win three out of
the four new seats.42 The U.S. Justice Department moved to block this extreme case of
gerrymandering. The most compelling evidence of discriminatory redistricting was the
substantial surgery and removal of districts economic engines from Congressman Al Green,
Congresswoman Sheila Jackson Lee, and Congresswoman Eddie Bernice Johnsons districts.
Circuit Judge Griffith pointed out in his opinion that No such surgery was performed on
the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her
district office, and there was unchallenged evidence that the legislature removed the economic
guts from the Black ability districts.43 This is just the latest in what has become standard
practice for Texas voting legislation. As we remember, every redistricting cycle for the last four
decades has found Texas in court for racial gerrymandering, discriminatory vote dilution, and
other voting-rights infringements.44
The gerrymandering issue does appear like it will be resolved anytime soon. In a
response to a lawsuit concerning the latest oppressive redistricting proposal, the State claimed:
DOJs accusations of racial discrimination are baseless. In 2011, both houses of
Thomas E. Perez (Assistant Attorney General) to Keith Ingram (Director of Elections) Section 5
Objection: Voter Registration and Photographic Identification Procedures Contained in Chapter 123 (S.C.
14), March 12, 2012. http://www.justice.gov/crt/about/vot/sec_5/ltr/l_031212.php.
40
Tom Kludt and Catherine Thompson. Federal Court Rules Texas Voter ID Law Is Discriminatory.
Talking Points Memo, August 30, 2012. http://talkingpointsmemo.com/muckraker/federal-court-rulestexas-voter-id-law-is-discriminatory.
41
42
Ari Berman, Federal Court Blocks Discriminatory Texas Redistricting Plan, The Nation, 2012.
43
Texas v. United States, 831 F.Supp.2d 244 (D.D.C. 2011)
See, e.g., League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); Vera v. Richards,
861 F.Supp. 1304 (S.D.Tex. 1994), aff'd sub nom. Bush v. Vera, 517 U.S. 952 (1996); Terrazas v. Slagle,
789 F. Supp 828 (W.D. Tex. 1992), affd sub nom., Richards v. Terrazas, 505 U.S. 1214 (1992) (mem.)
and Slagle v. Terrrazas, 506 U.S. 801(1992) (mem.); Upham v. Seamon, 456 U.S. 37 (1982); White v.
Weiser, 412 U.S. 783 (1973); White v. Regester, 412 U.S. 755 (1973). See also Texas Redistricting Cases:
the 1990s, http://www.senate.leg.state.mn.us/departments/scr/redist/redsum/txsum.htm.
44
16
Appendix 27
the Texas Legislatures were controlled by large Republican majorities, and their
redistricting decisions were designed to increase the Republican Partys electoral
prospects at the expense of the Democrats. It is perfectly constitutional for a
Republican controlled legislature to make partisan districting decisions. 45
Party lines, however, coincide with racial lines. In the 2012 presidential election, eighty
percent of minority voters voted for the Democratic candidate, President Obama. 46 So, even if
we assume that Texas legislators are motivated by politics and not racism, their actions still have
the effect of suppressing the minority vote.
C. The Shelby County v. Holder Decision
Despite the many instances of ongoing racial discrimination, the U.S. Supreme Court
struck down the coverage formula outlined in Section 4 of the Voting Rights Act of 1965 on
June 25, 2013. Chief Justice John Roberts, speaking for the majority, determined that, while
Section 4 was rational and necessary for holding jurisdictions accountable for the election
procedures at the time of the enactment of the original law, it is outdated and thus
unconstitutional: Our country has changed, and while any racial discrimination in voting is too
much, Congress must ensure that the legislation it passes to remedy that problem speaks to
current conditions.47
The Section 4 coverage formula of the VRA decided which jurisdictions would be
subject to Section 5 preclearance. Without the formula, Section 5 becomes essentially null and
void because no jurisdictions are subject to federal preclearance. The Supreme Court called on
Congress to create a new formula, yet as of today, no action has been taken.
So, without preclearance, how will minority voting rights be protected? Even the
Supreme Court admits that voting discrimination still exists; no one doubts that.48 As it stands
today, the only way to challenge a discriminatory voting law is to file suit under Section 2 of the
VRA. Section 2 explicitly bans laws or practices that hinder the ability of individuals to vote
because of their ethnicity or race.
45
Perez v. Texas, 891 F.Supp.2d 808, 838 (W.D. Tex. 2012).
Study: Minority Groups Who Voted 80 Percent Obama To Become Majority. CBS-DC, November 8,
2012. http://washington.cbslocal.com/2012/11/08/study-minority-groups-who-voted-80-percent-obamato-become-majority/.
46
Ryan Reilly, Mike Sacks, Sabrina Siddiqui, Voting Rights Act Section 4 Struck Down by Supreme
Court, Huffington Post, 2013.
47
48
Shelby County, Ala. v. Holder, 133 S.Ct. 2612, 2615, 186 L.Ed.2d 651 (2013).
17
Appendix 27
Reliance on Section 2 to bring suit causes numerous issues. Litigation is long, expensive,
and arduous. It may take years before the courts pass a final verdict on a lawsuit. During that
time, minority communities are left to suffer under discriminatory practices. Additionally, the
change in the law shifts the burden of proof onto citizens to prove discrimination. Before the
recent changes, the burden was on local government to prove that its practices were not
discriminatory.
Minority voting rights in Texas now face a grave threat. On June 25, 2013, the day of the
Supreme Courts decision concerning the VRA, Texas Attorney General Greg Abbot announced,
with todays decision, the states Voter ID law will take effect immediately. Voters now must
provide one of the following in order to vote: a Texas driver license issued by the Department of
Public Safety (DPS); a Texas Election Identification Certificate issued by DPS; a Texas personal
identification card issued by DPS; a Texas concealed handgun license issued by DPS; a U.S.
military identification card with the persons photograph; a U.S. citizenship certificate with the
persons photograph; or a United States passport.49
In addition, without preclearance protection, the Texas legislature will have free rein to
gerrymander to its hearts content,. This could be disastrous for minority voting rights. Keith
Ingram, the Texas State Elections Division Director, believes that the repeal of the Voting Rights
Act will have no effect on voting practices in Texas. He thinks that counties will not institute
regressive tactics because they want to get it right. 50 Recent history has shown, however, that
getting it right and winning frequently become convoluted, and without proper regulation,
Texan officials cannot be trusted to protect the voting rights of all individuals.
On July 25, 2013, just one month after the Supreme Courts VRA decision, Attorney
General Eric Holder asked the U.S. District Court in San Antonio to re-subject Texas to federal
preclearance. The Attorney General cited Texas recent history of racial discrimination as the
main motivation behind his request to bail-in Texas. 51 This request was the Department of
Photo ID now required for Voting in Texas, Texas Secretary of State: John Steen, 2013. Interestingly
enough, official college or university photo identification cards or photo clergy identification cards are
not acceptable under the statute, or any other official agency-issued ID cards.
49
See Appendix C, Keith Ingram (Director of Elections) interview by Emily Pendleton, Lane Kazmierski,
and Whitney Knox. September 18, 2013.
50
Eric Holder, Attorney General Eric Holder Delivers Remarks at the National Urban League Annual
Conference (speech, National Urban League Annual Conference, Philadelphia, PA, July 25, 2013)
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130725.html.
51
18
Appendix 27
Justices first action after the Shelby County decision. The DOJs decision to make Texas its top
priority shows the dire threat facing Texas minority voters. The court has yet to respond to the
request, but hopefully, either Congress or the court system will take the necessary steps to
protect voting rights in Texas in the near future.
Denial of voting-rights is not a mere political maneuver; it is a grave offense that goes
against the deep-seated tenets of our nation. Depriving us of suffrage, Frederick Douglass said,
you affirm our incapacity to form intelligent judgments respecting public measures to rule us
out is to make us an exception, to brand us with the stigma of inferiority. 52
Voting rights are the capstone of democratic citizenship, but the Supreme Court has
recently chosen to uphold federalism over protecting the nations most vulnerable citizens
fundamental right. Constitutional and statutory law, in addition to evolving jurisprudence,
developed to protect Texass minority citizens voting rights; however, no measure has been able
to ensure complete protection.
Texas history proves constant vigilance is necessary from both the courts and lawmakers
to overcome the persistent attempts to diminish minority voting rights. Too many people have
died, suffered beatings, and given their all to assert the right of all citizens to vote for us not to
honor their work for the benefit of our society, our children, and our grandchildren. The future of
our country may well depend on our efforts.
52 Frederick
Douglass, What the Black Man Wants (speech, Annual Meeting of the Massachusetts AntiSlavery Society, Boston, 1865).
19
Appendix 27
IV. CURRENT VOTER REGISTRATION PRACTICES ARE CONVOLUTED AND INEFFECTIVE

Travis County Tax Assessor-Collector Bruce Elfant is a strong advocate for registering
citizens to vote. He holds the position of voter registrar for the county.
As of November 2012, 82 percent of the voting age population in Travis County was
registered to vote. A record high was recorded in 2004 with 94 percent of the voting age people
registered. Mr. Elfant is determined to raise these numbers back to the 2004 pinnacle. When
compared to other metropolitan areas in Texas, Travis County registers a large number of voters.
As of January 2012, the county registered over 10 percent more of its voters than Dallas and
Harris Counties. 53
The voter registrar for each county alone cannot register all the voters within the county.
Texas requires each county to approve volunteer deputy voter registrars to help with this process.
But not just anyone is allowed to register eligible citizens to vote. If someone wishes to help
Texas citizens register, that individual must go to a training session held by the voter registrar for
the county in which the person wishes to register voters.
There are many provisions that attain to the role of deputy voter registrars. For example,
they must:
Hand deliver all voter registration applications to the county voter registrar within 5
days of receiving the application
Provide some form of receipt to applicants acknowledging their submitted application
Check that the application is complete before it is accepted
Either Bruce Elfant or his training assistant presents these requirements to Travis County
volunteer registrars during their 30-60 minute training session. The importance of following the
guidelines is emphasized during this training session for Travis County volunteers, but each
county holds deputy registrars to its own level of expectation. Training sessions are required for
each county. However, the extent to which the requirements are conveyed varies from county to
county.
Between the 2008 and 2012 presidential elections, Travis County stepped up its volunteer
deputy registrar training, which, in effect, reduced the number of errors on the voter registration
cards and therefore lessened the number of rejected applications due to missing information.
Tina Morton, Travis County Honors Over 2,000 Volunteer Deputy Registrars, Register U+2
Campaign, 2012.
53
20
Appendix 27
The most reliable way to ensure a voter application reaches the county voter registrar is
by mailing or personally delivering the form to the registrars office. But mistakes happen.
Therefore, to guarantee proof of registration, the Texas Election Code requires that receipts be
provided to all citizens who turn in a registration form to deputy registrars or other intake
locations. This allows voters the ability to provide verification of registration prior to the 30-day
processing period.
If a voter has not received the registration certificate in the mail by Election Day and
presents his or her receipt at the polls, the election judge is required to permit the person to vote a
provisional ballot. The ballot and receipt are then delivered to the citizens county voter registrar
to determine why that person has not received a voting certificate, why his or her name does not
appear on the rolls, and whether or not the individual is eligible to cast the ballot.
In Travis County, receipts are attached as a stub at the bottom of the registration card by a
perforated seam, and detached once the deputy registrar approves the completion of the
application. Receipt forms vary across intake locations and differ in every county.
The Department of Public Safety Registration
The Department of Public Safety is one of the main locations where citizens register to
vote. Across Texas, every DPS office is required to ask each customer if he or she wishes to
register to vote. The Secretary of State receives a large majority of registration applications from
DPS locations and, in turn, transfers those forms to the appropriate county voter registrar to be
processed and placed on the voter rolls.
This process has evolved over the years. Prior to 2009, the registration applications from
the DPS offices were based off printed forms, which presented a larger issue for voters. Whether
DPS clerks simply forgot to check yes when a customer confirmed the desire to register or the
printed application got lost in other piles of DPS paperwork, situations would occur in which the
Secretary of State would not receive the citizens registration application to be transferred to the
county voter registrar.
This situation allowed citizens to believe they had registered, when in actuality, for no
fault of their own, they had not. There is no way of knowing which citizens applications fell
through the cracks in this process until they presented themselves at the polls. The only way of
verifying their registration was through an extensive search of DPS data files, which DPS
employees were reluctant to perform during the November 2012 election. The 2012 election was
the first time many DPS registrants, who registered prior to 2009, appeared at the polls.
21
Appendix 27
Hopefully, the majority of these unprocessed applications have been recovered and resolved, but
there is still no way of knowing.
The DPS registration process has improved since changes in 2009. Currently,
applications are transferrable electronically so clients information on their license is used to fill
out a registration form and directly passed on to the Secretary of State along with the applicants
electronic signature. This process provides fewer opportunities for errors. In addition, the data
received by the Secretary of State is easily matched against the DPS database for registration
application transfers.
The Voter Registrar Director for Travis County, Dee Lpez, expressed concerns for voter
registration at DPS offices. During the November 2012 elections, the ability to renew expired
licenses online confused and misinformed voters about their registration status. During the online
renewal process, there is an option for the applicant to check yes for registering to vote. But
checking yes did not actually register the applicant, because the only way to register is by
performing the renewal process in person at the DPS office.
The Texas Department of Information Resources responded to the complaints of the
confusing question by making a note under the proposed registration question stating, Selecting
yes does not register you to vote. A link to the Secretary of State Voter website (where a voter
application may be downloaded or requested) will be available on your receipt page. This issue
caused many citizens to remain ineligible to vote in the November 2012 election.
Another current problem is the way proof of registration receipts are administered. The
only existing form of receipt provided by DPS is located on the customers temporary paper
license. On the form, in small print, it indicates whether or not that person registered to vote
when renewing or registering for a license. The majority of people discard this form once they
receive their actual license, therefore discarding the evidence that they registered to vote. This
means they will not be eligible to vote if for some reason they do not receive their certificates of
registration in the mail before elections or their names do not appear on the voting rolls. It would
be beneficial to create a more formal receipt to give DPS customers who registered. 54
Bruce Elfant and Dee Lopez, (Travis County Voter Registrar and Director), interview by Emily
Pendleton, "Travis County Voter Registrar Meeting Report," May 30, 2013.
54
22
Appendix 27
V. HIGH SCHOOL ADMINISTRATORS DISREGARD RESPONSIBILITY
TO
REGISTER STUDENTS
Young adults persistently rank lowest when comparing voter turnout by age group. In the
2012 general election, 50 percent of citizens between ages 18 to 29 voted nationally. This was
8.7 percent lower than the voter turnout of all eligible voters. 55 These figures demonstrate the
necessity for stronger youth outreach. As citizens turn 18, high schools across the state are a
critical resource for registering newly eligible voters. Statistical analysis helped gather and assess
the information regarding student registration practices from schools across Texas.
There are over 1,000 school districts throughout Texas and over 1,150 public high
schools. Through the Texas Education Agency, TCRP was able to obtain a listing of all public
high schools and districts within Texas. The data included contact information for each principal
and superintendent.
For this report, TCRP generated three samples in which to collect survey data. The first
sample consisted of 75 random high schools across the state. High schools were chosen at
random using the excel software randbetween function, which assigned random numbers to
every high school. We proceeded to sort the random numbers, selecting only the first 75 schools
that appeared as to avoid bias of the schools selected to receive our survey.
The second sample was generated using the same process as the first, with the
information provided for the districts across Texas. 75 school districts were selected at random.
For the final sample, we used data provided by the Nation Center for Education Statistics
(NCES) website. NCES data is based on 2010 census results and reports on the demographic
make up of each school district. TCRP took the numbers supplied by the NCES School District
Demographic System to look at each school district separately to determine total numbers of
Hispanic and African American student population under age 18. These numbers were then used
to find an accurate representation of the minority student population within the district. Each
districts minority population total was then compared to the total white population under the age
of 18. If the minority population outnumbered the white population by a ratio greater than 2:1,
then all schools within that district were eligible for the final sample. Once we attainted all
Pillsbury, George and Julian Johannesen. America Goes to the Polls 2012: A Report on Voter Turnout
in the 2012 Election. NonprofitVOTE.org. March 11, 2013.
http://www.nonprofitvote.org/doc_view/504-america-goes-to-the-polls-2012.
55
23
Appendix 27
minority-populated schools with a ratio greater than 2 minority students to every 1 white student,
the first 75 schools were selected at random using the same method as the first two samples.
Each of the schools principals, and each of the districts superintendents received a copy
of the survey (Appendix B and C). The questionnaires were administered four times via email
during the months of June, July, and August of 2013 through Google Forms. Those of which had
yet to respond by mid-August, were mailed a printed form.
The results from the survey distributed to high schools throughout the state indicate that
Texas schools, more often than not, are neglecting their statutory duty to promote voter
participation among young people.
The responsibilities of Texas high schools with regard to student voter registration are
clearly set out in the Texas Election Code. Chief among these responsibilities is the task of
distributing voter registration forms to all eligible students at least twice a school year. 56
Of the superintendents responding to the TCRP survey on behalf of their districts, only
22 percent reported that high schools within their districts are distributing voter registration
applications at least twice a year; 38 percent served in districts where applications are distributed
only once a year, and 41 percent stated that they never distribute them.
The survey results from principals who responded on behalf of their high schools indicate
that 37 percent of Texas high schools are distributing voter registration applications at least twice
a year; 39 percent reported distributing them once a year, while 23 percent never distribute
applications to students. Both district-wide and individual high school samples reveal that about
two thirds of high schools in Texas are not meeting the minimum requirement mandated by the
Texas Election Code. A compilation of the results by district and individual school responses can
be seen in the School Survey Response Map following the end of this section.
Those high schools that are registering students to vote conduct the registration process in
a variety of different ways. Roughly 50 percent of all samples reported that government teachers
most commonly carry out the task. This is arguably the most effective means of student
registration, because it gives schools the ability to best incorporate voter registration and the
importance of civic engagement into the students curriculums. Currently, all that is required of
government teachers by Texas Education Agency standards is to inform students about their
56
Texas Election Code 13.046.
Appendix 27
24
right and civic duty to become registered and how they might go about doing that. The
administration of registration forms by government teachers, however, is not mandatory.
The second most common manner of supplying voter registration applications is by
making them available at the schools front office or similar location, as reported by roughly 30
percent of all samples. Approximately 10 percent of all samples reported that they never
formally administer applications, but make them available on request. A small number of schools
will distribute registration cards at events, such as pep rallies. Dedication to voter registration
across Texas high schools unfortunately varies a great deal. While some schools take field trips
to the polls and invite candidates to speak on campus, others ignore the process entirely.
Even schools that do participate in student voter registration often fail to adhere to state
laws that could affect the successful approval of registration applications. One critical, yet
frequently ignored, registration guideline under Section 13.042 of the Election Code. It requires
that all applications must be transferred to the county voter registrar within five days of
completion. Of the schools reporting that they conduct voter registration at least once a year,
only 56 percent state that applications are submitted within the mandated time frame. Failure to
adhere to this provision could prevent students from successfully registering.
High schools have also been failing to provide voter registrants with receipts upon
completion of their applications, despite the fact that this is too legally required. 57 Of the high
schools that distribute applications at least once a year, only 32 percent are providing receipts to
student applicants. Receipts serve the important function of acknowledging that students
submitted applications before the registration deadline and provide proof of registration if
applications are lost when being transferred to the county voter registrar. If ones attempt at
registration is unsuccessful, a receipt guarantees an individual a provisional ballot.
The lack of initiative to register high school students appears to be a statewide issue. It is
unclear whether or not any particular racial or geographical demographics are disproportionately
affected. In a survey distributed to majority-minority populated schools in Texas, 61 percent of
schools reported distributing voter registration applications at least twice a year, compared to
majority-white schools, of which only 37 percent reported doing so. It is possible that schools
with large minority populations are putting greater effort into voter registration because they are
more conscious of voter suppression in the state. However, due to their low response rate to the
57
Id. 13.040.
Appendix 27
25
survey, it is difficult to determine whether or not voter registration laws in majority-minority

high schools are actually more commonly implemented than in their majority-white counterparts.
Texas high school principals who have responded to the survey commonly indicated that
they were unaware of state laws regarding student voter registration. This is particularly
troubling, as their position requires that they either become or appoint a volunteer deputy
registrar for their school, as stipulated under Section 13.046 of the Texas Election Code.
According to the Director of the Elections Division for the Texas Secretary of State,
Keith Ingram, high school principals are reminded of their duties with regard to voter registration
via email once per year, which may explain why many schools only conduct registration once
annually. This form of outreach is only heightened during election periods. Ingram notes that it is
normal for inexperienced high school administrators to be unaware of their responsibilities when
there is no upcoming election. Ingram has stated that he has little authority when it comes to
enforcing such laws. Therefore, their implementation relies on the knowledge and motivation
of high school administrators. Student voter registration will only increase once a central
authority takes responsibility for educating high school administrators and enforcing the Texas
Election Code.
26
Appendix 27
SCHOOL DISTRICT SURVEY RESPONSE MAP
27
Appendix 27
VI. LEAGUE OF WOMEN VOTERS RESPONSES: DISSATISFIED WITH COOPERATION FROM HIGH
SCHOOLS
The League of Women Voters of Texas is a nonpartisan organization that formed in San
Antonio in 1919. In its early days, the League worked to help give newly enfranchised women
access to the polls, and did not support any political candidate. Over the years, the League has
fought to eliminate obstacles to the polls and expand voter rights to all citizens. Recently, the
League has pursued its goal of encouraging informed and active participation in government
by conducting Get Out the Vote campaigns in Texas high schools.
Section 13.046 of the Texas Election Code requires high school principals or their
designee to at least twice each school yeardistribute an officially prescribed registration
application form to each student who is or will be 18 years of age or older during that year.
Despite this law, the majority of principals do not actively participate in registering students to
vote. In attempts to correct this situation, the League has found outright hostility by principals
and school districts toward their voter drive efforts in high schools.
In 2012, the Austin chapter of the League took on a project focusing on ten local Title I
high schools. Title I schools are those which have a student poverty rate of at least 40%. The
state provides these schools with funding to supplement instruction for students who are
economically disadvantaged or at risk for failing to meet state standards. Economics, not
political motivation, drove the League to target Title I schools. Austin Leagues efforts and
funding focus on schools that would otherwise not have voter registration opportunities. The
schools with the greatest need tend to be those with higher minority populations.
Based on prior experience with high schools, the League opted not to hold the voter
drives during lunch because the students were unresponsive at that time. Instead, they held
meetings with the students during class times, during which teachers would bring the students to
the library or a similar location for an informational lecture on registration and the election
process. Of the ten Austin high schools visited, only one, Crockett High School, responded
enthusiastically to the Leagues efforts to register students. Most of the other schools were
unresponsive to efforts to hold drives there. Further, many high school students lacked essential
information needed to register, such as a drivers license number or a social security number.
Even though they were asked to be prepared with that information through posters and teacher
announcements, 90% of the students lacked the proper paperwork to register to vote.
As in Austin, the success of the Leagues student registration efforts in Dallas County
28
Appendix 27
varied greatly from school to school. The League found that the success of voter drives hinged
on the attitude of the principal in each high school. Principals who understood their
responsibility and appreciated the importance of registering their students were more receptive to
the Leagues efforts. In the past, the Dallas chapter found that Dallas ISD did not put a high
priority on student registration, and was unresponsive to any organization attempting to visit high
schools to register students. Additionally, the Dallas chapter found the best way to incentivize
students to register is through effective communication. Giving students accurate and positive
messages about voting increased the number of students who believe in the importance of
registering and voting. Such communication increased the number of students registering and
ultimately voting.
In Irving ISD, the local chapter of the League had no success holding voter drives in the
districts two high schools; but it met success with voter registration in the local community
colleges. The League continues to have good relations with student associations within the
community colleges in which it has held voter registration drives.
In the cities and counties surrounding Dallas, the League faced many difficulties
registering students at high schools. The League did not conduct voter drives in either Denton
County or Arlington high schools. Instead, registration was left up to government class teachers.
The Denton County chapter of the League hopes to conduct voter drives in at least some high
schools during Spring of 2014.
In Collin County, the League only had slightly more success registering students. Of the
three high schools in Plano, two responded to the Leagues efforts to hold voter drives. However,
this produced limited results because the League was only allowed to conduct drives during
lunch periods and, consequently, collected a total of merely five registration cards from both
schools combined.
In rural areas, such as Smith County, public high schools are completely unwilling to
conduct voter drives with outside groups. In Tyler, the League was barred from entering the two
public high schools to register students. Instead, the school district depended on the system of
using government teachers to conduct voter information and registration sessions with students.
Tyler ISD was unwilling to collaborate with the League of Women Voters because of concern
that doing so would open the door to admitting other groups to the campuses.
In speaking with recent Tyler ISD high school graduates, it became apparent to the
League that some faculty members do not take their voter registration duties seriously and that
29
Appendix 27
many students did not even know they could have registered. One government teacher, perhaps
unaware of her districts policy, contacted the League directly to set up a registration date during
lunch period at her school. Even though the students enthusiastically responded to the Leagues
voter registration efforts, the government teacher who organized the event with the league was
reprimanded for her actions.
30
Appendix 27
VII. ELECTIONS DIRECTOR KEITH INGRAM:

A. SUMMARY OF INTERVIEW
Keith Ingram, director for the Texas Elections Division, is tasked with the somewhat
vague role of overseeing the division in carrying out the role of the Secretary of State as Chief
Elections Officer. Mr. Ingram manages the four sections of the elections division, coordinates
communication between the elections officials around the state regarding election law
interpretation and application, as well as serving as a resource to legislature.
Mr. Ingram met with several TCRP interviewers to discuss concerns raised from
researching information for this report. Of primary concern to the interviewers was the failure of
state agencies to adhere to their duties under the Texas Election code to ask clients if they
wanted to register to vote. In addition to asking about enforcement under the code, a substantial
amount of time was spent discussing the Volunteer Deputy Registrars and their role in elections.
Several weeks prior to meeting with Mr. Ingram, TCRP sent a copy of the interview
questions and concerns for his review. The questions posed addressed areas of concern that
TCRP identified after conducting research on compliance with the Election Code.
Here is a brief synopsis of the information gathered during the interview:
There is not a way to enforce the Texas Election Code. The Texas Legislature has not
granted power to enforce the duties mandated under the Election Code. Therefore, if an
entity bound by the code does not follow it, the Elections Division is unable to sanction
such failures.
The public is tasked with holding entities accountable under the Texas Election
Code by filing complaints when issues arise. The Elections Division does use a
complaint process through which grievances may be filed and sent to the appropriate
party. When an issue arises regarding the failure to adhere to a section of the code that
carries a crime, the complaint will be sent to the Attorney General for investigation.
The Elections Division prioritizes its outreach efforts toward local elected officials
rather than the public. Ingram relies on local officials to disseminate information to the
public regarding voting and elections. There is no real campaign through the media or
otherwise to educate the public about elections or voting generally and encourage people
to vote; nor is there any apparent outreach to Texas many minority language
communities.
31
Appendix 27
High school administrations receive minimal outreach as to their duty under the
Texas Election Code. Mr. Ingram sends one or two emails a year, reminding principals
of their duty to become deputized or to appoint a volunteer deputy registrar in their place,
but does not follow up.
Voter outreach materials are primarily printed in Spanish and English. Each county
must publish all outreach materials in both Spanish and English. Harris County
additionally translates its materials to Chinese and Vietnamese. Although Mr. Ingram
reported that new voter ID materials are printed in all four languages, the Texas voting
website and Secretary of State website only make available the Spanish and English
materials. The State Bar of Texas currently makes materials available in ten languages, 58
this raises the question as to why the Secretary cannot do so with regard to something far
more important, the right to vote.
The Division spends a large amount of resources on sorting duplicate registrations.

Switching to an electronic system would be beneficial for determining whether someone
needs to re-register and could otherwise help decrease the number of duplicate
registrants.
Deputization of volunteer deputy voter registrars serves an important purpose in

maintaining the integrity of the elections process and so any hardship created by
establishing such a role is outweighed by the pubic good. The Division only has
authority to issue directives regarding minimum requirements for training deputy voter
registrars. Each county can decide for itself how to implement the directives.
Mr. Ingram has no concerns that the changes to the Voting Rights Act will result in
regressive practices in Texas. He has not received any complaints since the change of
the law and does not plan to track any changes in polling practice.
The role of Elections Division Director is vague and ambiguous to both the public
and Mr. Ingram himself.
The lack of enforcement authority of the Texas Election Code begs the question of why a
code exists. In general, Mr. Ingram did not share TCRPs concerns regarding the areas where
entities fall short of their duty under the code. Notwithstanding, TCRP has suggested
58
The State Bars website provides translations in English, Arabic, Chinese (simplified), German, Hindi,
Italian, Korean, Spanish, Urdu, and Vietnamese. www.texasbar.com.
32
Appendix 27
recommendations to implement to help protect Texans voting rights. It is clear from the research
and subsequent discussions with elections officials that, while the Election Code purports to
protect voting rights in Texas, implementation of the code is lacking in effectiveness.
B. FOLLOW UP TO INTERVIEW WITH KEITH INGRAM
1. The Effect of the Voter ID Law
After TCRPs interview with Keith Ingram, we met with Bruce Elfant, the Travis County
tax assessor and voter registrar. In that meeting we learned that 37,000 registered Travis County
voters have been identified as not having valid state issued identification. Statewide, Mr. Elfant
estimates that there are 600,000-700,000 registered voters who do not have valid, state issued
identification. This figure was calculated by cross checking the voter registration information
with DPS data files, showing that these voters dont have a valid drivers license or personal ID.
Mr. Elfant believes it is very unlikely these voters have an alternative form of identification, such
as a passport; however, it is slightly more likely that they will have a military identification.
Due to poor planning by the legislature that resulted in budgetary restraints, the Secretary
of State was unable to send notifications of ineligibility to vote to the 37,000 disenfranchised
voters. This is a failure of the legislature for not accounting for this issue while planning for the
implementation of the voter ID laws. To make up for this shortfall, Travis County plans to mail
out postcards to notify the 37,000 ineligible voters, however, the timeline for that is still being
decided and postcards wont be sent out till after the upcoming election. The postcards will
provide information about alternate forms of identification that can be used as a voter ID, and
also their options if they are disabled or over 65.
In his interview, Ingram stated that their office had not yet received any complaints or
comments from concerned citizens regarding the voter ID law. He also stated that the office had
no concerns about the invalidation of Section 4 of the Voting Rights Act. Recently, Ingram
received a letter from a concerned citizen. When she expressed her concern about having to sign
an affidavit swearing that she was the same person that her ID identified her as, even though the
names on her registration and ID were slightly different, Ingram responded with the following:
As you may know, the legislature passed SB-14 in the 82nd legislative session.
Prior to the passage of that bill, a voter like yourself or my mother with a maiden
name discrepancy between their approved voter identification and the official list
of registered voters did not result in having to sign an affidavit. You and my
mother were allowed to sign in and vote without any issue. However, SB-14
changed the law in one important respect. An amendment to the bill in the Texas
Senate was offered by Senator Wendy Davis from Fort Worth. This amendment
33
Appendix 27
required persons whose name was not an exact match but was substantially
similar to sign an affidavit that they were the same person and be allowed to
cast a ballot.59
Ingram failed to mention that the original version of the Republican backed bill provided
no recourse for voters whose name on their IDs did not match the rolls. Despite Ingrams
cavalier attitude and general lack of concern that the voter ID law would negatively impact
Texans, precincts around Texas reported that as many as one in five voters had to sign affidavits
because of mismatches in names. 60
2. Accessibility of Texas Voting Outreach Materials
The Secretary of State official website is crucial in making voting information accessible
to the public. It is important that citizens of all language backgrounds be able to easily find and
understand voting instructions. While Harris County translates its printed outreach materials to
four languages, the website for Texas Secretary of State office is currently only available in
English and Spanish. 61 This is so despite the fact that a substantial amount of speakers of other
languages reside in the state. Other commonly spoken languages are Vietnamese, Chinese, and
Hindi, yet they are not available on the website.
When compared to other states, Texas is often less inclusive with regard to speakers of
other languages. For instance, Californias Secretary of State website may be read in English,
Spanish, Japanese, Hindi, Khmer, Korean, Filipino, Thai, and Vietnamese. 62 New Yorks offers
English, Spanish, French, Chinese, Russian, Italian, Haitian Creole, and Korean, and provides
additional language interpretation upon request.63
Mr. Ingram is disillusioned as to the reality of access to voting in Texas. This is indicative
of the overall tone of policy makers, elected officials, and department leaders. Not only does
Texas fail to properly outreach young voters in high school and English as Second Language
Learners, social service departments that are mandated to outreach clients for voter registration,
are often failing to meet their duty. Section VII discusses this issue in detail
Zachary Roth, Texas: Blame Wendy Davis or voting hassles, MSNBC, November 18, 2013.
http://www.msnbc.com/msnbc/texas-blame-wendy-davis-voting-hassles
59
60
Ibid.
61
Texas Secretary of State John Steen, Texas Secretary of State Office, http://www.sos.state.tx.us.
California Secretary of State Debra Bowen, California Secretary of State Office,

http://www.sos.ca.gov.
62
63 Department
Appendix 27
of State, New York Secretary of State Office, http://www.dos.ny.gov.

34
VIII. PUBLIC AGENCIES FAIL THEIR LEGAL DUTY
TO
PROVIDE VOTER REGISTRATION
ASSISTANCE TO PATRONS
A. Public Agencies Have Duty to Provide Voter Registration Assistance to Patrons
Section 20 of the Texas Election Code designates voter registration agencies and outlines
the duty of such agencies to provide voter registration materials and assistance in completing the
registration.64 Although outlined in the Election Code, a great discrepancy exists between
services mandated and services provided.
The code specifically mandates several state agencies to serve as voter registration
agencies:
Health and Human Services Commission (HHSC);
Department of Aging and Disability Services (DADS);
Department of Assistive and Rehabilitative Services (DARS);
Department of State Health Services (DSHS);
Department of Public Safety (DPS);
Public libraries; and,
Marriage license offices. 65
Public libraries, Department of Public Safety, and marriage license offices are each
regulated by additional sections of the code. While the code specifically lists the above agencies,
the Secretary of State may deem any other agency or department that primarily provides public
assistance or service to persons with disabilities as a voter registration agency. 66
B. The Texas Election Code Mandates Specific Voter Registration Services by
Designated Agencies
The Texas Election Code requires that voter registration agencies notify clients and
potential clients of the opportunity to register to vote upon application for services to the
agency. 67 Following notification, if a client or prospective client then requests to register to vote,
64
Tex. Elec. Code 20.001.
65
Ibid.
66
Ibid. 20.001(a)(5).
67
Ibid. 20.032.
Appendix 27
35
the agency is required to provide a voter registration form: either the official version or an
agency-created form approved by the Secretary of State.68
If the agency customarily processes applications, re-certifications, or other services over
the phone or via mail, the agency must deliver notification of the opportunity to register to vote
and voter registration forms in the same manner. Information about how to file the application
form should be included with the application or notification of opportunity to register. 69
Designated voter registration agencies should not make determinations of eligibility of
potential voters unless such determination can be made using information provided to the agency
for services. Registration forms should be provided, even if the agency representative is unsure
of eligibility. 70
When a client declines to register to vote, agencies should receive declinations in writing
and file this document for 22 months. 71 This provision does not apply to public libraries, the
Department of Public Safety, and marriage license offices.
C. Additional Duties for DPS and Marriage License Offices
In addition to the provisions described thus far, DPS and marriage license offices have
additional duties. The DPS is required to combine the voter registration form with DPS services
applications.72 Any applicant for a drivers license, ID card, duplicate or corrected license or ID
should be provided an opportunity to register to vote. If applied for via mail, a voters
registration form should accompany any DPS application materials in the mail. 73 At the end of
each business day, DPS must deliver hard copies of the completed voter registration cards and
email the names of everyone who registered to the Secretary of State. 74
When marriage license offices send married couples their original marriage licenses after
being recorded, the county clerk must also deliver by mail two voter registration forms. The
68
Ibid. 20.002.
69
Ibid. 20.037.
70
Ibid. 20.006.
71
Ibid. 20.036.
72
Ibid. 20.062.
73
Ibid. 20.063.
74
Ibid. 20.066.
Appendix 27
36
county clerk must also include, with the application forms, directions as to how to file the
registration.75
D. Voter Registration Agencies Fail to Adhere to Duties Mandated by the Texas
Election Code
TCRP representatives questioned each voter registration agency designated by the
Election Code with regards to provisions of voter registration services. Many were confused and
had not heard of such requirements. The Health and Human Services Commission and the
Department of Assistive and Rehabilitative Services seemed clear about their duty and provide
services consistent with the Code. However, all other agency representatives either lacked
information regarding voter registration, or affirmed that they did not provide such services for
clients.
E. The Health and Human Services Commission (HHSC)
HHSC is one of the few designated voter registration agencies that appear to satisfy its
duty of service under the Election Code. Prospective or current clients who apply for HHSC
services are asked if they would like to register to vote. Additionally, the application form for
HHSC services includes on it the option to register to vote. Completing the paperwork registers a
person to vote. Although there are no receipts stating that an applicant has registered to vote,
HHSC logs all registration responses for an undisclosed period of time. It is therefore possible
that an applicant can gain access to some sort of registration confirmation.
F. The Department of Aging and Disability Services (DADS) and the Department
of State Health Services (DSHS)
Although the Election Code also specifically designates both DADS and DSHS as voter
registration agencies, neither provides voter registration forms to their clients. DADS offered no
firm answer regarding its compliance with voter registration duties under the Election Code.
Conversations with DADS representatives lead us to believe that persons interested in registering
to vote are referred to HHSC for registration and other services.
The Ombudsmans office at HHSC confirmed that all applicants for HHSC services are
asked if theyd like to register to vote. The office could neither confirm nor deny that persons are
referred to them for the purposes of registering to vote. For those who are referred to HHSC in
75
Ibid. 20.122.
Appendix 27
37
order to register, the extra steps required added barriers to obtaining voter registration and are
unnecessary steps.
G. The Department of Assistive and Rehabilitative Services (DARS)
The Department of Assistive and Rehabilitative Services (DARS) field offices offer voter
registration to all those who seek services. They use paper forms, which are mailed in once a
week to the Elections Division of the Secretary of States office. Receipts are issued for those
who register, however. DARS reports, though, that few people register at its offices.
H. The Department of Public Safety (DPS)
The Department of Public Safety provides many services to customers including the
opportunity to register to vote and obtain voter IDs. Despite clear mandate in the Election Code
that voter registration agencies provide the same level of assistance for citizens when registering
to vote as they do for helping citizens apply for services, 76 the extent of assistance provided to
persons interested in registering to vote is unclear. Whether the Election Code addresses any of
the additional duties of DPS also remains ambiguous. After several transfers over the phone,
DPS representatives were unable to find someone who could provide more complete answers
regarding the extent of adherence to the Code.
In recent years, DPS has greatly improved its voter registration system by moving to an
electronic format. When applying for DPS services, changing addresses or other information on
DPS accounts, clients are asked if they would like to register to vote or update their registration.
Upon answering affirmatively, their information is typed into an electronic database and into
software that captures relevant registration information. After being compiled, the application is
printed out and given to the registrant to review for typos. The application is then signed and
scanned, creating an electronic signature file. The signature as well as the already entered data is
then compiled and sent to the Elections office. 77 Once they register to vote, their information is
recorded electronically and sent to the Elections Division. Keith Ingram, Elections Division
Director, stated that the DPS electronic system is by far the best and most efficient reporting
76
Ibid. at 20.005.
Project Vote, Texas Automates Voter Registration at the Drivers License Offices, Accessed
December 4, 2013, http://www.projectvote.org/blog/2010/05/texas-automates-voter-registration-at-thedriver-license-offices.
77
38
Appendix 27
system in the State, and would like to streamline this system for use with the other voter
registration agencies.
I. Marriage License Offices and Public Libraries
Due to limited resources, marriage license offices and public libraries were not studied in
depth for the purposes of this report. However, there were preliminary findings for services
provided by Travis County. The Travis County Clerks office, which administers marriage
licenses for the county, asks marriage license applicants if they would like to register to vote. In
addition, it deputizes volunteers who help register voters. All registrations collected are sent by
mail to the county Voter Registrar every few days. However, receipts are only given if the person
registers with a volunteer, not within the office itself.
Few Travis County libraries were contacted. However, from those contacted, it is
apparent that the practice of each library that register voters differs between library systems and
sometimes even between branches. Therefore, without extensive statistical analysis, any
assumption regarding whether libraries meet their duty as voter registration agencies would be
just that, an assumption. The research has led us to believe, however, that libraries and marriage
license offices contribute minimally to the voter registration.
J. Conclusion
In some cases, voter registration agencies fail to meet their duty under the Election Code.
Some agencies do not provide voter registration cards, while others lack consistency as to
whether registration cards are dispersed, depending on the agent working at the time. Employees
of some agencies are not even aware of their duty to register voters. In a recent meeting with
Elections Division Director Keith Ingram, 78 it became apparent that, although Texas has a code
governing voter registration, no official possesses the authority to enforce the code. While
expressing concern about whether voter registration agencies like DADS and DSHS are
upholding their duties under the Act, Mr. Ingram stated he had no enforcement power and
limited resources. As a result, when agencies, like DADS and DSHS, are not performing their
specified duty, there is no recourse.
Additionally, where agencies are providing and accepting voter registration cards, there is
a certain amount of paperwork and resources spent on managing the paperwork. Ingram
See Appendix C, Keith Ingram (Director of Elections) interview by Emily Pendleton, Lane Kazmierski,
and Whitney Knox. September 18, 2013.
78
39
Appendix 27
expressed his frustration that the state is over-doing it by encouraging and sometimes requiring
people to re-register at each agency where they are applying for services at. The extent to which
Ingrams critique is unclear, the suggestion that he implies, to streamline electronic registration,
is the right direction that we should go. Using paper registration forms makes it impossible for
service providers at voter registration agencies to know, in real time, whether someone is already
registered to vote. For this reason, Mr. Ingram hopes to move the entire voter registration system
to an electronic system. Because it is unclear what concrete steps Ingram has taken to reach the
goal of streamlining the electronic system, it is also unclear whether such a goal can be
accomplished.
The lack of assertiveness and leadership on the part of the Secretary of State and officials
under him further adds to the problem of barriers in voter registration. While aware of the
challenges Texas faces in ensuring that each eligible citizen is registered to vote because of gaps
in policy and virtually zero enforcement mechanisms, Mr. Ingram coolly shifted the
responsibility of advocating for policy reform onto citizens. He explained that it is up to us as
voters to sway our legislature regarding such issues as policy reform. Their lack of accountability
and responsibility was not comforting to hear the second highest-ranked state election official.
Even so, such a response should not have been surprising considering overall confusion
surrounding the function of the Elections Director position.
The Texas Election Code is in place to guarantee protection of voting rights to citizens.
Without enforcement, some of the agencies will fail to meet their duty. With mounting confusion
regarding voting procedures, Texas cannot afford to fail in this area.
40
Appendix 27
IX. VOLUNTEER DEPUTY VOTER REGISTRARS: LACKING IN UNIFORMITY AND HAPHAZARD:

In order to encourage voter registration, county registrars may legally appoint volunteer
deputy registrars (VDRs).79 VDRs have the same authority as the county registrar to record
voters.80 They are tasked with collecting completed voter registration cards and returning them to
the county registrar.81 The Secretary of State creates minimum training requirements to deputize
voter registrars. However, procedural deputization requirements are left up to the individual
counties.82 Because of the lack of procedural standards, deputization procedures vary greatly
across counties. As a result, instead of aiding in the overall voter registration process,
deputization ironically has become an obstacle in many counties.
Minimum deputization requirements were imposed in 1985. The legislatures rationale
was that an individuals right to vote is so fundamental that safeguards must be in place to
prevent the abuse of that right. At the time, the belief was that the deputization process would
encourage voter registration. However, the current decentralized patchwork of deputization
procedures actually has become a hindrance to voter registration across the state.
Many counties schedule certain training dates throughout the month on which to train and
deputize citizens. On these dates, citizens can learn about VDR rights and responsibilities. The
number of days when trainings are offered varies greatly among counties. Some counties have
training on the third Tuesday of each month; others, on the second Thursday of the month. Some
counties offer trainings every other week on a Monday, and still others hold trainings once a
week. In fact, some counties have instituted procedures allowing people to become deputized at
any time during business hours. Similarly, there are counties that do not schedule trainings at all,
unless a minimum number of people request training.
There is great variance as to how counties make deputization trainings known to the
public. Some counties publish the training notice well in advance, either on the internet or in the
local newspaper. Others do not set a date until a week or two before the actual training, which
requires participants to call in a week before to find out the time and date of the training session.
Further, we discovered that many counties have no procedures for deputization. Some
79
80
Ibid. 12.006.
81
Ibid. 13.042.
82
Ibid. 13.047.
Appendix 27
41
county registrars actually did not even know what a VDR was. These counties were usually in
the rural areas. When contacted, these counties indicated they did not know about VDRs, let
alone the Secretary of States minimum requirements. They typically responded by saying they
would have to research the process and call back.
Under the Texas Election Code, a person who becomes deputized in one county may
become deputized in another county without having to undergo additional training, at the latter
countys discretion. Lack of knowledge about this provision is widespread. Some counties allow
automatic deputization upon showing of ones certificate from another county, while other
counties mandate a VDR from another county to complete that countys specific training course
to become deputized.
This hodgepodge of deputization procedures is an impediment to voter registration.
Depending on where they live, individuals, who want to become deputized in their home county,
might have to wait weeks if they are in a county where the registrar only deputizes once a month.
If they want to be deputized in another county, they may have to travel a long distance for the
certification and run into the same infrequent training sessions.
Moreover, individuals, who want to become deputized in a county next to their home
county, will face myriads of obstacles. They would have to find out which counties will honor a
certificate from their home county and which would require additional training as part of its
deputization procedures. They would need to visit the county for the training. This could take
weeks or months to accomplish. Also, on December 31 of even-numbered years, VDRs
appointments expire. 83 Therefore, on January 1, every two years, an individual must go through
this whole ordeal again. Consequently, individuals wanting to go to multiple counties around the
state to register voters could spend hours on the phone with the voter registrar of each county,
register for sessions in each county requiring training, and then physically travel to each
individual county at the specific time it offers training.
Further, many cities extend into multiple counties. Parts of Austin lie within neighboring
Hays and Williamson Counties. Therefore, individuals who want to register voters all through
Austin would have to become deputized in those counties besides Travis County. Hays County
does not accept deputization certificates from other counties. Individuals would have to complete
one of the training courses held once a month in order to register Austinites who live in Hays
83
Ibid. 13.031.
Appendix 27
42
County. Likewise, Dallas, Fort Worth, and Houston all extend into multiple counties. Individuals
who want to register citizens in those cities for local elections would have to become deputized
in the neighboring counties; and, if those counties do not accept certificates from other counties,
they would have to take the countys training course.
In an interview with Texas Elections Director Keith Ingram, TCRP expressed concern
regarding the deputization process, and brainstormed possible remedies. Mr. Ingram explained
the decentralized state system of government set up in the Texas Constitution after the Civil War
would make any sweeping remedy to deputization obstacles very difficult because, in his view,
the deep mistrust of executive power resulted in a situation where the power resided in the
counties. TCRP suggested that, as a remedy, the state elections department might promulgate
standard procedural rules for the counties. Mr. Ingram took the position that, even if there were
such standards, there is no enforcement mechanism for the state over whether the counties
abided by the regulations.
Even though Mr. Ingram asserted it is not possible for a state entity to promulgate
procedural rules for local officials to follow because of Texas decentralized governmental
framework, there are examples of the state setting procedural rules for county officials. One
example is that, when issuing a concealed handgun license to an individual, the state created
substantive and procedural rules for local officials to follow. 84 The state requires the Department
of Public Safety to forward application materials to the directors designee in the applicants
geographical area within 30 days. 85 Then, the local designee must complete a record check and
investigation no later than the 60th day after application materials are received. 86 Thus, it is
possible for the state to promulgate procedural rules for local county officials to follow.
A. METHODOLOGY
To gauge the deputization procedures around the state, TCRP called each region in
Texas. We called Austin, Dallas, Houston, San Antonio, and surrounding counties. Also, we
called counties in rural areas such as West Texas and the Panhandle. The effort was to get an
understanding of the state as a whole, and compare different areas and looking for patterns.
Some counties were more responsive than others. For some, we spent a very time on the
84
Tex. Gov't Code 411.176.
85
Ibid.
86
Id.
Appendix 27
43
phone learning their deputization procedures. For others, we spent considerable time on the
phone and had to talk to multiple people before reaching a person who could help with voter
information. For seven counties we called, the designated person with whom we were put in
contact didnt know the deputization process at all. Even worse, we were not able to get through
to a person at all on this matter.
B. MAPS
44
Appendix 27
C. DEPUTY REGISTRAR TIMELINE

In 1985, the 69th Texas Legislature passed Section 13.031 of the Texas Election Code,
which requires citizens to become deputized in order to register voters. In the decades preceding
this law, Texans began to see a reduction in stringency with regard to voting laws, largely due to
national pressures. This trend began to emerge in the mid-1960s. For example, in 1966, the U.S.
Supreme Court ruled that levying a poll tax violated the Fourteenth Amendments Equal
Protection Clause. This measure increased voting access for Texas marginalized citizens. In
1971, the 26th Amendment passed, reducing the voting age for all federal, state, and local
elections to 18 years.
45
Appendix 27
Texas had required that one must live in the state for a year to establish residency. In
1972, the residency requirement to participate in national elections was reduced to thirty days. 87
The 1985 law above marks Texas reversion to increased strictness with regard to voting laws.
Section 13.031 of the Election Code stipulates that volunteer deputy registrars are to be
appointed in order to register voters. An appointee must be eighteen years of age and serve for a
term that expires on December 31 of even-numbered years.
Since 1985, the Texas Legislature has repeatedly amended the law, making the voter
registration process increasingly restrictive.
The major hindrance facing volunteer deputy registrars (VDRs) lies in the increasing
specificity of the Election Code. For example, the law was amended in 1987 to require VDRs to
submit registration applications to the county registrar in person, rather than by mail. 88 A 1997
amendment prohibited VDRs from accepting applications from citizens of counties other than
where they were appointed.89 As recently as 2011, an amendment passed, restricting volunteer
deputy registrars from accepting compensation based on the number of registrations they
facilitate.90 Due to the legal penalties that can result from the failure to comply with these
changing statutes, many individuals have been deterred from registering voters.
Wisconsin is the only other state to require volunteer registrars to be appointed by their
local government. However, the state also allows same-day registration, which significantly
lessens the need for third-party registrars.91 Texas is the most restrictive state in the union when
it comes to voter registration.
Volunteer deputy registrars and registration drives are vital components of the voting
process. This is particularly true among underrepresented racial minorities, as census data
indicates that African Americans and Latinos are most likely to register through voter
registration drives conducted by volunteer deputy registrars. 92 By imposing greater requirements
Dave McNeely, It's free, easy to vote in Texas but it wasn't always that way Series: CAMPAIGN '92,
Austin-American Statesman, October 30, 1992.
87
88
Texas Election Code 13.042.
89
Ibid. 13.038.
90
Ibid. 13.043.
91
Wis. Stat. 6.15; Wis. Stat. 6.26.
92Voting
Appendix 27
for Am., Inc. v. Andrade, 888 F.Supp.2d 816 (S.D. Tex. 2012).
46
on volunteer deputy registrars, the Texas Legislature undermines the election process and
contributes to Texass low voter turnout.
47
Appendix 27
X.
APPENDIX
48
Appendix 27
APPENDIX A
ELECTION CODE EXCERPTS
Sec. 12.006. REGULAR DEPUTY REGISTRARS.
(a) The registrar may appoint one or more deputy registrars to assist in the registration of voters, subject
to Subsection (e).
(b) In this code, "regular deputy registrar" means a deputy registrar appointed under this section.
(c) Except as provided by Subsection (d), a regular deputy registrar has the same authority as the registrar,
subject to the registrar's supervision.
(d) A regular deputy registrar may not hear or determine a challenge under this title.
(e) To be eligible for appointment as a regular deputy registrar under this section, a person must meet the
requirements to be a qualified voter under Section 11.002 except that the person is not required to be a
registered voter.
(f) A regular deputy registrar may not assist in the registration of voters until the deputy registrar has
completed training developed under Section 13.047. At the time of appointment, the voter registrar shall
provide information about the times and places at which training is offered.
Sec. 13.031. APPOINTMENT; TERM.
(a) To encourage voter registration, the registrar shall appoint as deputy registrars persons who volunteer
to serve.
(b) In this code, "volunteer deputy registrar" means a deputy registrar appointed under this section.
(c) Volunteer deputy registrars serve for terms expiring December 31 of even-numbered years.
(d) To be eligible for appointment as a volunteer deputy registrar, a person must:
(1) be 18 years of age or older;
(2) not have been finally convicted of a felony or, if so convicted, must have:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or
supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote; and
(3) meet the requirements to be a qualified voter under
Section 11.002 except that the person is not required to be a registered voter.
(d) To be eligible for appointment as a volunteer deputy registrar, a person must:
(1) be 18 years of age or older;
49
Appendix 27
(2) not have been finally convicted of a felony or, if so convicted, must have:
(A) fully discharged the person's sentence, including any term of incarceration, parole, or
supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote; and
(3) not have been finally convicted of an offense under
Section 32.51, Penal Code.
(e) A volunteer deputy registrar appointed under this section may not receive another person's registration
application until the deputy registrar has completed training developed under Section 13.047. At the time
of appointment, the voter registrar shall provide information about the times and places at which training
is offered.
Sec. 13.038. POWERS GENERALLY.
A volunteer deputy registrar may distribute voter registration application forms throughout the
Sec. 13.040. ISSUANCE OF RECEIPT.
(a) On receipt of a completed registration application, a volunteer deputy registrar shall prepare a receipt
in duplicate on a form furnished by the registrar.
(b) The receipt must contain:
(1) the name of the applicant and, if applicable, the name of the applicant's agent; and
(2) the date the completed application is submitted to the volunteer deputy.
(c) The volunteer deputy shall sign the receipt in the applicant's presence and shall give the original to the
applicant.
(d) The volunteer deputy shall deliver the duplicate receipt to the registrar with the registration
application. The registrar shall retain the receipt on file with the application.
(e) The secretary of state may prescribe a procedure that is an alternative to the procedure prescribed by
this section that will ensure the accountability of the registration applications.
Sec. 13.042. DELIVERY OF APPLICATION TO REGISTRAR.
(a) A volunteer deputy registrar shall deliver in person, or by personal delivery through another
designated volunteer deputy, to the registrar each completed voter registration application submitted to
the deputy, as provided by this section. The secretary of state shall prescribe any procedures necessary to
ensure the proper and timely delivery of completed applications that are not delivered in person by the
volunteer deputy who receives them.
(b) Except as provided by Subsection (c), an application shall be delivered to the registrar not later than 5
p.m. of the fifth day after the date the application is submitted to the volunteer deputy registrar.
50
Appendix 27
(c) An application submitted after the 34th day and before the 29th day before the date of an election in
which any qualified voter of the county is eligible to vote shall be delivered not later than 5 p.m. of the
29th day before election day.
Sec. 13.043. FAILURE TO DELIVER APPLICATION.
(a) A volunteer deputy registrar commits an offense if the deputy fails to comply with Section 13.042.
(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.
(c) An offense under this section is a Class A misdemeanor if the deputy's failure to comply is intentional.
Sec. 13.046. HIGH SCHOOL DEPUTY REGISTRARS.
(a) Each principal of a public or private high school or the principal's designee shall serve as a deputy
registrar for the county in which the school is located.
(b) In this code, "high school deputy registrar" means a deputy registrar serving under this section.
(c) A high school deputy registrar may distribute registration application forms to and receive registration
applications submitted to the deputy in person from students and employees of the school only.
(d) At least twice each school year, a high school deputy registrar shall distribute an officially prescribed
registration application form to each student who is or will be 18 years of age or older during that year,
subject to rules prescribed by the secretary of state.
(e) Each application form distributed under this section must be accompanied by a notice informing the
student or employee that the application may be submitted in person or by mail to the voter registrar of
the county in which the applicant resides or in person to a high school deputy registrar or volunteer
deputy registrar for delivery to the voter registrar of the county in which the applicant
(f) Except as provided by this subsection, Sections 13.039, 13.041, and 13.042 apply to the submission
and delivery of registration applications under this section, and for that purpose, "volunteer deputy
registrar" in those sections includes a high school deputy registrar. A high school deputy registrar may
review an application for completeness out of the applicant's presence. A deputy may deliver a group of
applications to the registrar by mail in an envelope or package, and, for the purpose of determining
compliance with the delivery deadline, an application delivered by mail is considered to be delivered at
the time of its receipt by the registrar.
(g) A high school deputy registrar commits an offense if the deputy fails to comply with Section 13.042.
An offense under this subsection is a Class C misdemeanor unless the deputy's failure to comply is
intentional, in which case the offense is a Class A misdemeanor.
(h) The secretary of state shall prescribe any additional procedures necessary to implement this section.
.
Sec. 13.047. TRAINING STANDARDS FOR DEPUTY REGISTRARS.
(a) The secretary of state shall:
(1) adopt standards of training in election law relating to the registration of voters;
51
Appendix 27
(2) develop materials for a standardized curriculum for that training; and
(3) distribute the materials as necessary to each county voter registrar.
(b) The training standards may include the passage of an examination at the end of a training program.
Sec. 20.001. DESIGNATION OF VOTER REGISTRATION AGENCIES
(a) The following state agencies are designated as voter registration agencies:
(1) Health and Human Services Commission;
(2) Department of Aging and Disability Services;
(3) Department of Assistive and Rehabilitative Services;
(4) Department of State Health Services; and
(5) any other agency or program as determined by the secretary of state that primarily provides:
(A) public assistance; or
(B) services to persons with disabilities.
(b) The Department of Public Safety is designated as a voter registration agency.
(c) Each public library, including any branch or other service outlet, is designated as a voter registration
agency. In this chapter, "public library" means a library that:
(1) is regularly open for business for more than 30 hours a week;
(2) is operated by a single public agency or board;
(3) is open without charge to all persons under identical conditions; and
(4) receives its financial support wholly or partly from public funds.
(d) Each marriage license office of the county clerk is designated as a voter registration agency.
(e) The secretary of state shall designate other agencies or offices as voter registration agencies as
necessary for compliance with federal law.
Sec. 20.005. DEGREE OF ASSISTANCE.
A voter registration agency shall provide the same degree of assistance, including any necessary bilingual
assistance, to a person in completing a voter registration form as is provided to a person in completing the
agency's forms, unless the assistance is refused.
Sec. 20.006. DETERMINATION OF ELIGIBILITY.
52
Appendix 27
(a) An employee of a voter registration agency may not make a determination about a person's eligibility
for registration other than a determination of whether the person is of voting age or is a United States
citizen.
(b) A person's age or citizenship may be determined by the employee only if the age or citizenship can be
readily determined from information filed with the agency by the person for purposes other than voter
registration.
(c) A person shall be offered voter registration assistance as provided by this chapter even if the person's
age or citizenship cannot be determined.
Sec. 20.032. REGISTRATION PROCEDURES.
(a) An appropriate agency employee shall routinely inform each person who applies in person for agency
services of the opportunity to complete a voter registration application form and on request shall provide
nonpartisan voter registration assistance to the applicant.
(b) An agency that provides services at a person's residence shall provide the opportunity to complete the
form and the assistance under Subsection (a) at the residence.
(c) On receipt of a registration application, the appropriate agency employee shall review it for
completeness in the applicant's presence. If the application does not contain all the required information
and the required signature, the agency employee shall return the application to the applicant for
completion and resubmission.
(d) Information regarding the agency or office to which an application is submitted is confidential and
may be used only for voter registration purposes.
Sec. 20.036. DECLINATION OF REGISTRATION.
(a) If the applicant does not wish to complete a voter registration application form, the agency employee
shall request that the applicant complete and sign an official declination of registration form unless the
employee determines that the applicant has previously completed and signed the form.
(b) If the applicant refuses to sign the declination form, the agency employee shall enter on the form a
notation of that fact.
(c) The agency shall preserve each declination for at least 22 months after the date of signing. The
declination may be retained in the applicant's file at the agency or in a separate declination file.
(d) A declination is confidential and may be used only for voter registration purposes.
(e) The secretary of state shall prescribe the procedures necessary to eliminate the filing of multiple
declinations by an applicant.
Sec. 20.037. TELEPHONE OR MAIL SERVICES.
(a) A voter registration agency that allows a person to apply for services by mail shall deliver to an
applicant by mail a voter registration application form on the approval of services for the applicant.
(b) An agency shall deliver to an applicant by mail a voter registration application form if:
53
Appendix 27
(1) the agency automatically notifies an applicant to renew or recertify a service by mailing a
form to the applicant; or
(2) the applicant requests services by telephone and the agency provides services in that manner.
(c) An application form delivered by mail must be accompanied by a notice informing the applicant that
the application may be submitted in person or by mail to the voter registrar of the county in which the
applicant resides or in person to a volunteer deputy registrar for delivery to the voter registrar of the
county in which the applicant resides.
(d) The agency may maintain a written record indicating that a registration application was delivered to an
applicant.
(e) The agency is not required to deliver a declination of registration form under this section.
Sec. 20.062. DEPARTMENT FORMS AND PROCEDURE.
(a) The Department of Public Safety shall prescribe and use a form and procedure that combines the
department's application form for a license or card with an officially prescribed voter registration
application form.
(b) The department shall prescribe and use a change of address form and procedure that combines
department and voter registration functions. The form must allow a licensee or cardholder to indicate
whether the change of address is also to be used for voter
(c) The design, content, and physical characteristics of the department forms must be approved by the
secretary of state.
(a) The Department of Public Safety shall provide to each person who applies in person at the
department's offices for an original or renewal of a driver's license, a personal identification card, or a
duplicate or corrected license or card an opportunity to complete a voter registration application form.
(b) When the department processes a license or card for renewal by mail, the department shall deliver to
the applicant by mail a voter registration application form.
(c) A change of address that relates to a license or card and that is submitted to the department in person
or by mail serves as a change of address for voter registration unless the licensee or cardholder indicates
that the change is not for voter registration purposes. The date of submission of a change of address to a
department employee is considered to be the date of submission to the voter registrar for the purpose of
determining the effective date of registration only.
(d) If a completed voter registration application submitted to a department employee does not include the
applicant's correct driver's license number or personal identification card number, a department employee
shall enter the appropriate information on the application. If a completed application does not include the
applicant's correct residence address or mailing address, a department employee shall obtain the
appropriate information from the applicant and enter the information on the application.
54
Appendix 27
(a) If a person completes a voter registration application as provided by Section 20.063, the Department
of Public Safety shall:
(1) input the information provided on the application into the department's electronic data system;
and
(2) inform the applicant that the applicant's electronic signature provided to the department will
be used for submitting the applicant's voter registration application.
(b) Not later than the fifth day after the date a person completes a voter registration application and
provides an electronic signature to the department, the department shall electronically transfer the
applicant's voter registration data, including the applicant's signature, to the secretary of state.
(c) The secretary of state shall prescribe additional procedures as necessary to implement this section.
(a) When an original marriage license is returned to the licensees after being recorded, the county clerk
shall also deliver to the licensees by mail two voter registration application forms.
(b) The county clerk shall use the official form prescribed by the secretary of state.
(c) The application forms must be accompanied by a notice informing the licensees that the applications
may be submitted in person or by mail to the voter registrar of the county in which they reside or in
person to a volunteer deputy registrar for delivery to the voter registrar of the county in which they reside.
(d) The county clerk may maintain a written record indicating that a registration application was delivered
to a licensee.
55
Appendix 27
APPENDIX B
SURVEY INSTRUMENTS FOR HIGH SCHOOL COMPLIANCE
Texas Schools: Voter Registration

Purpose: We are gathering information from schools across Texas to better understand student
registration
practices.
We would appreciate you taking a few moments to answer these 8 questions. Thank you!
Top of Form
Name of school: *
What is your school's average senior class size? *
o
1-150 students
150-300 students
300-450 students
450-600 students
600 or more students
How are voter registration applications administered to students? *

Check all that apply
o
Made available to students (and faculty) at the front office or similar location
Through government class teachers
During large school functions ie. Pep Rally, Sporting Events, Fairs, etc.
We do not administer registration applications; they must be requested by the

student (or faculty member)
o
o
Other:
How often do you administer voter registration applications to students? *

o
Never
Once a school year
Twice a school year
Three or more times a school year
What is the title of the faculty member responsible for the intake and delivery (by
mail or in person) of the registration applications to the county voter registrar? *
Are receipts given to students who register? *
o
Yes
No
56
Appendix 27
Upon receipt of voter registration applications, how frequently are the applications
transferred to the county voter registrar? *
o
Within 5 days of receipt
N/A
Is there any additional information you would like to include about your school's
voter registration procedures?
Texas Districts: Voter Registration
Purpose: We are gathering information from districts across Texas to better understand student
registration
practices.
We would appreciate you taking a few minutes to answer these 7 questions. Thank you!
Top of Form
Name of District
How are voter registration applications administered to students?
Check all that apply
o
Made available to students (and faculty) at the front office or similar location
Through government class teachers
During large school functions ie. Pep Rally, Sporting Events, Fairs, etc.
We do not administer registration applications; they must be requested by the

student (or faculty member)
o
o
Other:
How often are schools within your district required to administer voter registration
applications to students?
o
Never
Once a school year
Twice a school year
Three or more times a school year
What is the title of the faculty member typically responsible for the intake and
delivery (by mail or in person) of the registration applications to the county voter
registrar?
Are receipts given to students who register?
o
Yes
57
Appendix 27
No
Upon receipt of voter registration applications, how frequently are the applications
transferred to the county voter registrar?
o
N/A
Is there any additional information you would like to include about your district's
voter registration procedures?
58
Appendix 27
APPENDIX C
INTERVIEW WITH KEITH INGRAM,
TEXAS STATE ELECTIONS DIVISION DIRECTOR
Date: 9/18/2013
Interviewees: Keith Ingram, State Elections Division Director, and Ashley Fischer, Legal
Director
Interviewers: Emily Pendleton, Lane Kazmierski, and Whitney Knox
1. What outreach and registration efforts does the Elections Division or Secretary of
States office conduct, not only in English but Spanish, Vietnamese, and other
languages?
Harris County translates everything into Chinese and Vietnamese as well as Spanish. All
counties must translate materials into Spanish. The voter ID bill materials are printed in all four
languages.1
2. How does the Secretary of States office transfer registration information to the
appropriate counties?
Transfer of registration takes place primarily through the mail. The Spanish voter registration
forms, as well as the forms that the voter registration agencies issue, all have return address to
the Secretary of States office.
The Department of Public Safety has instituted an electronic system where applicants are
encouraged to register to vote online through their application process for DPS services. This
information is sent electronically to the Elections Division.
3. What are the quality control measures that take place prior to registration transfer
from the Secretary of States office to the appropriate county?
The registration forms are coded and so when people turn in the form it is possible to track
whether the form came from a Chapter 20 agency, 2 or elsewhere. They also know which agency
registered the voters because they receive the information directly from the agencies.
After searching the voter ID outreach materials online, TCRP was only able to find these materials only
in Spanish and English.
1
Chapter 20 agencies are agencies designated by Chapter 20 of the Texas Election Code as agencies that
have a duty to register citizens to vote. See Texas Election Code 20.001.
2
59
Appendix 27
Although the voting cards are coded, the Election Division does not track how many people are
applying from which agencies because agencies swap forms. Therefore, there is no way to know
when a person received the form, although its likely that they received the form from the coded
agency.
4. What happens to the registration cards once the Elections Director receives them?
Once the Elections Director receives the voter registration cards, they get sorted and sent to the
appropriate county.
5. What are some of the biggest issues with voter registration procedures that the
Secretary of States office has identified?
The biggest issue is that State agencies spend a lot of time dealing with registrations for voters
who are already registered. Dealing with duplications requires more legwork to sort out; this
work could be substantially lessened through electronic registration systems. Health and Human
Services Commission sends out 550,000 registration cards a month. Its overkill, we are doing
too much already.
Another concern is that the Elections Division has no authority to enforce the Elections Code.
After the Civil War, the government system in Texas was decentralized and authority over
certain issues was given to local county governments.
6. How do you hold agencies accountable for turning in their registrations within the 5day timeline? And, if any, which push the deadline or are not doing it? What happens
if the agency does not comply?
There is no recourse for agencies that do not comply with the 5-day deadline. The legislature has
not granted any policing power to the Division and so all that can be done is call to check in on
agencies and encourage that they follow the law as outlined by the Texas Election Code.
7. How has the Elections Division budget diminished/increased over the last 5 years
(2009-2014) and what are you currently focusing your funds on?
There is no way for me to know because I have not been in office for the past five years. In 2011,
the budget was reduced by 10%, since then it has been reduced another 5%. As a result we have
less staff.
Mr. Ingram was vague regarding budgeting for outreach but did say that they use the county
election officials to reach voters. County election officials and other local officials are charged
with knowing the information and disseminating it to the local voters.
8. Why does Texas require citizens to become deputized in order to administer and collect
registration forms? Do you think this decreases the number of registered voters around
the state?
60
Appendix 27
Deputization of citizens came into effect in 1985. Texas has a County based voter registration,
meaning this happens at the county level. Counties are responsible for their lists of voters.
Volunteer deputy registrars (VDR) are the deputies serving on behalf of the voter registrar in the
county. While anyone can pass out voter registration cards, VDRs stand in the place of the
registrar by accepting applications. Because the right to vote is important, and its been entrusted
to a volunteer, Texas has decided its okay to give a higher responsibility to persons who are
deputies. In addition to accepting voter registration cards, deputies answer questions voters have.
The training requirement was a recent addition.
9. What would be the best way to go about increasing registered voter status among the
high school student population? It might be beneficial to create a regulation under
Texas Education Agency to require voter registration within a specific course
curriculum. How would we go about doing that?
Only regulation that TEA has is that government teachers have to discuss civic engagement in
classes, there are no minimum standards. Mr. Ingram encouraged TCRP to communicate with
TEA regarding voter registration in high schools. Ingram felt as Election Director he had no
obligation to increase high school student registration. This statement is indicative of Ingrams
minimalistic approach to his role as Elections director.
10. As mentioned in the Election Code, the Health and Human Services Commission
(HHSC), Department of Assistive and Rehabilitative Services (DARS), Department of
State Health Services, Aging and Disabilities are all required to administer voter
registration forms to citizens seeking benefits from these agencies. However, it has
come to our attention that the Department of Aging and Disability Services as well as
the Department of State Health Services redirects their clients to another agency rather
than offering them a registration opportunity directly. Why is that? And with respect to
the Election Code, shouldnt they be providing this service?
Mr. Ingram met with HHSC staff recently. They take their responsibility as a voter registration
agency seriously. Any change of address or any other change triggers a new registration.
In regards to DADS and DSHS, which send their clients to HHSC and DPS to register, this does
not fulfill the agency duty of service under the Code.
Mr. Ingram is clear that he has no authority to hold agencies to their duty. Nevertheless, he has
appointments scheduled with DADS to discuss their practices.
11. Based on our current survey responses, it is apparent many schools (especially in rural
areas) across Texas do not know about their obligation to administer voter registration
cards to their students of age. We need this to be better known. How are schools
currently informed of items addressed in the Election Code, Section 13.046?
Majority of the outreach to high schools takes place during election periods. During those times,
principals may get additional outreach regarding their duties. In general, Mr. Ingram emails
principals once yearly to remind them of their duty to be deputized as well as their duty to
administer voter registration forms to their students. Mock elections are held in some high
61
Appendix 27
schools. There are also materials available on the website Texas.gov for high school principals
and teachers.
Teachers are not held accountable for their duties under the election code. Additionally, there is
no follow up once the yearly email communication to schools has sent.
12. It is a major obstacle for citizens to become deputized. Within certain counties, the
voter registrar only offers training sessions for large groups or at inconvenient times.
Is it possible to regulate the opportunities for deputization across the state? What is the
purpose for this statute? And why do citizens have to become deputized within each
county instead of once for the entire state? Is there a way to strike uniformity and to be
more frequent in deputization?
Texas does not have statewide mandates on deputization. There are 254 counties, and each
county uses a program that works for it. A one-size-fits-all program is not going to work. The
state can issue directives and set minimum standards, which is what the state has done.
Additionally, once a person has been deputized and gone through the training, that individual can
take your certificate and go to another county to get deputized in both counties.
Mr. Ingram encourages citizens to inform the Elections Division when counties are not meeting
the minimum standards of VDR training.
13. What do you do to educate the individual County Voter Registrars of their minimum
requirements to deputize volunteer deputy registrars?
There are county elections seminars every year and webinars monthly to train Voter Registrars as
to what to train VDRs.
14. How do you think the Voters Rights Act decision (Shelby v. Holder) will affect voting
in Texas?
Not sure the office has been under stress to make new laws effective. So far the office has
not received any complaints or concerns about regressive practices.
The VRA is still fully enforced and people are allowed to sue under it.
a. Is the Elections Division monitoring or tracking any of the changes to election
polls?
Mr. Ingram stated this is not our responsibility. No complaints have been received and
they do not intend to track complaints and changes to the polling practices.
b. Is there a fear that counties may try and institute regressive tactics?
62
Appendix 27
The office has no fear of there being regressive tactics implored. The county election
officials take their jobs very seriously. Therefore Mr. Ingram does not think that there
will be any intentional attempts to disenfranchise voters.
The best leverage with the counties is that the counties want to get it right. If the county
does not care, there is no leverage in getting uniformity.
15. What do you see your role is as the Elections Division Director?
Mr. Ingram initially stated, I dont know. After being prompted by the legal director, he said
my role is to implement responsibilities of the Secretary of State. I issue directives and educate
the public. I am a resource for the legislature as to how the code works in real life.
63
Appendix 27
XI.
BIBLIOGRAPHY:
SECONDARY SOURCES
Barr, Alwyn. Black Texans: A History of African Americans in Texas, 1528 - 1995. University of
Oklahoma Press, 1996.
Berman, Ari. "Federal Court Blocks Discriminary Texas Redistrict Plan". The Nation. 2012.
Berman, Ari. "How the GOP is Resegregating the South". The Nation.
Burnham, Walter. Voting in American Elections: The Shaping of the American Political
Universe since 1788. Academia Press, 2010.
Hine, Darlene Clark, Stephen F. Lawson, and Merline Pitre. Black Victory: The Rise and Fall of
the White Primary in Texas. University of Missouri Press, 2003.
Davidson, Chandler. Minority Vote Dilution. Harvard University Press, 1984.
Davidson, Chandler and Bernard Grofman, eds. Quiet Revolution in the South: The Impact of the
Voting Rights Act 1965-1900. Princeton University Press, 1994.
de Len, Arnoldo. Mexican Americans in Texas: A Brief History. Harland Davidson, Inc, 1991.
Douglass, Frederick. What the Black Man Wants. Annual Meeting of the Massachusetts AntiSlavery Society, Boston, 1865.
Frieden, Thomas. "Federal court strikes down Texas voter ID law". CNN Politics. August 30,
2012. http://www.cnn.com/2012/08/30/politics/texas-voter-id-law/index.html
Kludt, Tom and Catherine Thompson. Federal Court Rules Texas Voter ID Law Is
Discriminatory.
Talking
Points
Memo,
August
30,
2012.
http://talkingpointsmemo.com/muckraker/federal-court-rules-texas-voter-id-law-isdiscriminatory.
Maddow, Rachel. "Little Faith House can Secure Voting Rights after SCOTUS Blow". The
Rachel Maddow Show, MSNBC, 2013.
Montejano, David. Anglos and Mexicans in the Making of Texas. Austin:University of Texas
Press, 1987.
Morton, Tina. Travis County Honors Over 2,000 Volunteer Deputy Registrars. Register U+2
Campaign. 2012.
"Paul Bettencourt to Run for Texas Senate." The Journal: Friendswood. 2011
Photo ID now required for Voting in Texas, Texas Secretary of State: John Steen, 2013
Reilly, Ryan, Mike Sacks, and Sabrina Siddiqui. Huffington Post. 2013.
http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supremecourt_n_3429810.html
Roth, Zachary. Texas: Blame Wendy Davis or voting hassles. MSNBC. November 18, 2013.
http://www.msnbc.com/msnbc/texas-blame-wendy-davis-voting-hassles
Study: Minority Groups Who Voted 80 Percent Obama To Become Majority. CBS-DC.
November 8, 2012. http://washington.cbslocal.com/2012/11/08/study-minority-groupswho-voted-80-percent-obama-to-become-majority/.
Williams, Juan. Foreword in Thernstrom, Abigail, Voting Rights and Wrongs: The Elusive Quest
for Racially Fair Elections. Washington, D.C.: AEI Press, 2008.
64
Appendix 27
COURT CASES
Bullock v. Carter, 405 U.S. 134 (1972).
League of United Latin American Citizens v. Perry, 548 U.S. 399 (U.S. Supreme Court 2006).
Perez v. Texas, 891 F. Supp. 2d 808, 838 (W.D. Tex. 2012).
Shelby County v. Holder, 570 U.S. Syllabus (2013).
South Carolina v. Katzenbach, 383 U.S. 301, 309 (U.S. Supreme Court 1966).
Texas v. United States, 11-cv-01303 (U.S. District Court 2012).
Texas Democratic Party & Harris County Democratic Party v. Leo Vasquez, Harris County Tax
Assessor Collector & Voter Registrar, No. 4:08-CV-03332 (U.S. Dist. Ct. S.D. Tex.,
Houston Division 2008).
Texas Democratic Party & Harris County Democratic Party v. Paul Bettencourt, Harris County
Tax Assessor & Voter Registrar, No. 4:08-CV-03332 (U.S. Dist. Ct. S.D. Tex., Houston
Division 2008).
The United States v. North Harris Montgomery Community College District, and Board of
Trustees, Defendants., WL 2515711 (U.S. Dist. Ct. S.D. Tex. 2006)
GOVERNMENT DOCUMENTS, LETTERS, INTERVIEWS, AND WEBSITES
42 U.S.C 1971.
Boyd, Jr., Ralph F. (Assistant Attorney General) to Geoffrey Connor (Acting Texas Secretary of
State). Section 5 Objection: Redistricting Plan (House). November 16, 2001.
California Secretary of State Debra Bowen, California Secretary of State Office,
http://www.sos.ca.gov.
Department of State, New York Secretary of State Office, http://www.dos.ny.gov.
Elfant, Bruce and Dee Lopez, (Travis County Voter Registrar and Director). interview by Emily
Pendleton. "Travis County Voter Registrar Meeting Report." May 30, 2013.
Ingram, Keith (Director of Elections). interview by Emily Pendleton, Lane Kazmierski, and
Whitney Knox. September 18, 2013.
Holder, Eric. Attorney General Eric Holder Delivers Remarks at the National Urban League
Annual Conference. National Urban League Annual Conference, Philadelphia, PA, July
25, 2013. http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130725.html.
Perez, Thomas E. (Assistant Attorney General) to Keith Ingram (Director of Elections) Section
5 Objection: Voter Registration and Photographic Identification Procedures Contained in
Chapter
123
(S.C.
14),
March
12,
2012.
Section 4 of the Voting Rights Act. U.S. Department of Justice: Civil Rights Division,
http://www.justice.gov/crt/about/vot/misc/sec_4.php#sec4
Section 5 Covered Jurisdictions. U.S. Department of Justice: Civil Rights Division,
http://www.justice.gov/crt/about/vot/sec_5/covered.php.
Texas Secretary of State John Steen, Texas Secretary of State Office,
http://www.sos.state.tx.us.
Tex. Gov't Code 411.176.
"Voting Rights Act of 1965". Pub. L. No. 107-296, 79 Stat. 437 (1965).
http://www.ourdocuments.gov/doc.php?doc=100&page=transcript.
65
Appendix 27
5/1/2014
DOJ Closes Police Inquiry - News - The Austin Chronicle
http://www.austinchronicle.com/news/2011-06-03/doj-closes-police-inquiry/
DOJ Closes Police Inquiry

BY JORDAN SMITH, JUNE 3, 2011, NEWS
The U.S. Department of Justice has officially ended its inquiry into the use-of-force practices of the
Austin Police Department, which it began in 2007, concluding that it found "no reasonable cause to
believe that APD has engaged in a pattern or practice that violated the Constitution or laws of the United
States," according to a May 27 letter from the department to the city's legal department.
An inquiry into APD's practices was requested in 2004 by Nelson Linder of the Austin NAACP and Jim
Harrington with the Texas Civ il Rights Project, based on accusations of excessive use of force by
police against minority residents, including the high-profile shooting deaths of Sophia King in 2002 and
Jesse Lee Owens in 2003. The groups updated their complaint in 2005 to include the circumstances of
the Midtown Liv e nightclub fire, which sparked APD's infamous "burn baby burn" fiasco. Then-Chief
Stan Knee and then-City Manager Toby Futrell signed on to the request, saying the city welcomed the
review. The DOJ told officials it would undertake the review in 2007. The announcement was made one
day after the shooting death of Kev in Brown by APD Sgt. Michael Olsen; that incident was quickly
added to the inquiry.
The DOJ in late 2008 made 160 recommendations to improve the department's policies and procedures,
most of which have been implemented by APD including changes to the use-of-force policy, changes in
the way officers report uses of force, and changes to the department's intake, classification, and handling
of citizen complaints about officers, which the DOJ called "needlessly complex and fraught with
opportunities to apply subjective judgment."
In closing its inquiry, the DOJ's Jonathan Smith, chief of the Special Litigation Section, notes in a letter
that "gaps in use-of-force reports and supervisory investigations, though not necessarily rising to the
level of constitutional violations, should be reformed." (See the letter here.) First, the DOJ recommends
that the APD "bring to fruition its planned, though not fully implemented" early intervention system, which
is meant to identify officers who "demonstrate a tendency to violate APD." That system should be
reassessed, Smith writes, to ensure that potential problem officers are flagged for "personnel action"
such as training, counseling, or internal investigation. Second, Internal Affairs should be sure to "conduct
investigations in an objective and probing manner," in keeping with the recommendations the DOJ made
in 2008. Third, the department's use-of-force review process should "identify potential tactical or training
issues" that could be "corrected to minimize uses of force." Finally, the DOJ recommends that the city's
Office of the Police Monitor (about which the DOJ also made a host of recommendations in 2008)
should provide "objective, public reports on the conduct of APD's internal affairs." While the police
monitor's office has previously produced purely statistical reports the number of complaints made to the
http://www.austinchronicle.com/news/2011-06-03/doj-closes-police-inquiry/print/
Appendix 28
1/2
5/1/2014
DOJ Closes Police Inquiry - News - The Austin Chronicle
office, for example the DOJ recommends that APD "utilize OPM to produce timely reports not just on the
number of internal affairs complaints ... but also to provide a qualitative analysis of the internal affairs
system."
In a written statement, Harrington praised the process and encouraged APD to take seriously the DOJ's
remaining recommendations. "Because of DOJ's investigation, APD has changed course, and APD now
has a better and more professional police department," he wrote. "Credit belongs to DOJ's staff and to
[Chief Art Acev edo] ... and his staff, who took advantage of the situation to work with DOJ to greatly
improve APD's operation. APD's cooperation certainly is the reason that DOJ felt that it could now close
its investigation and not take legal action against the department."
Indeed, the DOJ has been ramping up its official inquiries into police practices; it recently announced socalled "pattern-and-practice" inquiries into departments in several major cities including Newark, N.J.;
Seattle, Wash.; and Denver, on top of its aggressive inquiry into the New Orleans Police Department,
where several officers are now facing criminal prosecution.
Copyright 2014 Austin Chronicle Corporation. All rights reserved.
http://www.austinchronicle.com/news/2011-06-03/doj-closes-police-inquiry/print/
Appendix 28
2/2
5/1/2014
Print Story : Should Texas death row inmates have more privileges? - CorrectionsOne.com
01/30/2014
Should Texas death row inmates have more privileges?

Advocates propose TV and phone access, contact visits, two in cell; prison officials hint
changes unlikely
Mike Ward
Austin American-Statesman
AUSTIN, Texas Fifteen years after seven convicts escaped from Texas death row in the largest such breakout in
the nation, prison officials are reviewing whether to change a policy that has kept the condemned in solitary
confinement ever since.
And while officials say privately there is little chance of a major change, a coalition of criminal-justice groups and
corrections and mental health professionals are pushing to ease the restrictions, arguing that allowing death row
inmates out of their cells for more than just one hour each day will improve the dismal working conditions for
guards and lessen the chances the inmates will go crazy.
The correctional officers and taxpayers would benefit from an easing of the current policies, said correctional
officer Lance Lowry, president of the Huntsville union local that represents prison employees. Most death row
offenders could be housed two to a cell. Some of them could be given work privileges and allowed to watch TV. An
inmate who has nothing to lose is a dangerous inmate.
For their part, Texas officials insist the review is routine. No significant changes are expected, said Jason Clark, a
spokesman for the Texas Department of Criminal Justice, which runs the states death row that on Wednesday
housed 250 condemned men. The eight women facing execution are housed under similar restrictions at the
departments Gatesville prison.
For most Texans, the thought of giving any privileges to the most heinous convicts might be unthinkable. But as
courts have been raising increasing questions about the legality of long-term solitary confinement, and as the
related costs of security and medical and psychiatric treatment for prisoners kept on permanent lockdown have
been increasingly scrutinized, prison officials in other states likewise are examining possible changes to their
policies.
A federal court decision this month prohibited officials from automatically housing death row prisoners in solitary
confinement the policy in Texas and many other states unless a particular need to do so is proven. A Virginia
convict had challenged the policy as a violation of his constitutional right to due process.
Virginia officials have said they plan to appeal the decision.
In the past two years, criminal-justice advocates nationally have rallied to lower the number of convicts who are kept
in solitary confinement some kept alone for years amid assertions that the isolation is driving some prisoners
crazy, including those on death row, and might make those prisons more dangerous places.
Allowing inmates privileges based on good behavior enhances security because it creates incentives for inmates
to comply with prison regulations, Jeanne Woodford, Californias former corrections director, wrote in a letter to
Texas officials supporting lessening the current mandatory-solitary policy.
Woodford, a 30-year corrections veteran, was at one time a warden at the famed San Quentin prison in California
where the nations largest death row is located.
When inmates are permanently and automatically housed in highly restrictive environments as they are in Texas
http://www.correctionsone.com/pc_print.asp?vid=6783629
Appendix 29
1/2
5/1/2014
Print Story : Should Texas death row inmates have more privileges? - CorrectionsOne.com
it is more difficult to control their behavior. To make matters worse, complete idleness breeds mental illness,
causing inmates to act out and putting correctional officers at risk, Woodford said.
A dozen advocacy groups among them, the Texas Defender Service that represents death row convicts, the
guards union, the Texas Criminal Justice Coalition, the National Alliance on Mental Illness-Texas, the Texas Civil
Rights Project, American Civil Liberties Union of Texas, Texas Inmate Family Association and various Catholic and
interfaith religious groups are asking for Texas prison officials to allow contact visits with family members,
communal recreation activities between death row prisoners, work assignments, participation in group religious
services, TV viewing, arts and crafts, and phone calls to family and attorneys.
Attorneys who have filed letters for the policy change are also asking that attorneys be allowed to meet in private
with their clients, not with guards present as is policy.
Texas solitary confinement policy for death row convicts was imposed after seven condemned murderers launched
an escape from the Ellis Unit north of Huntsville in a headline-grabbing breakout in November 1998. Six
surrendered before they could get outside the perimeter fences, but the ringleader, Martin Gurule, was able to get
away after scaling two 10-foot-high perimeter fences topped with razor wire.
Gurule, 29, sentenced to death for the deaths of two Corpus Christi residents during a restaurant robbery, was
found dead several days later after he drowned in a nearby river.
The daring escape, the first from Texas death row since a Bonnie-and-Clyde henchman fled in 1934, embarrassed
prison officials, who moved death row to a more secure prison outside Livingston, in East Texas, and imposed the
solitary-confinement rules that allow convicts out of their cell only up to one hour per day for recreation and, on some
days, showers.
Review of the death row housing policy comes as prison officials in the past year have faced increasing criticism
over similar confinement rules for thousands of so-called administrative segregation convicts who are kept
isolated in regular prisons for misbehavior, gang membership or other reasons. Some have been isolated there for
years.
Security experts, correctional officers, religious leaders, mental-health professionals, civil-rights advocates and
lawyers understand the import of maintaining security in all TDCJ facilities, according to a letter sent Tuesday from
the groups to prison officials.
The letter insists that the suggested changes will make things safer and in no way compromise security, reduce
the filing of grievances, and even improve the lives of correctional staff, who currently must work in the most hostile
and tense of environments.
Back to previous page
http://www.correctionsone.com/pc_print.asp?vid=6783629
Appendix 29
2/2

Coffee Cake Recipe

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Coffee Cake Recipe

Caricato da

Copyright:

Formati disponibili

Case No.

Certificate of Compliance ..................................... 32

Identity of Parties and Counsel

Stephanie Townsend Allala

Counsel for Petitioners:

City of El Paso, Texas

Counsel for Respondent

Attorney General of Texas

Counsel for Respondent

Interest of Amicus Curiae

Tex. Govt Code 552.002(a-2) .......................................................... 11

Austin Independent School District: Inequitable Funding and

City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.

City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.

City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex.

County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002)

Doctors Hospital Facilities v. Fifth Court of Appeals, 750

GTE Communications Systems Corp. v. Tanner, 856 S.W.2d

In re Caballero, 272 S.W.3d 595 (Tex. 2008)

In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001)

Kallinen v. City of Houston, Case No. 14-0015, 2015 WL

Mower v. Boyer, 811 S.W.2d 560 (Tex. 1991)

Tex. Dept of Parks and Wildlife v. Miranda, 133 S.W.3d 217

Tex. Dept Pub. Safety v. Cox. Tex. Newspapers L.P., 343

Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007)

Tex. Govt Code 552.001

Tex. Govt Code 552.002

Tex. Govt Code 552.021

Tex. Govt Code 552.321

Tex. Govt Code 552.324

Tex. Govt Code 552.325

Tex. Loc. Govt Code 201.006

Tex. R. Civ. P. 192.7

Interim Report to the 83rd Legislature

Public Information Handbook 2014 (Texas Attorney

Texas Declaration of Independence

Age Requirements on Google Accounts, Google Support

Austin Independent School District: Inequitable Funding

Democracy in Texas? Texas Faulty Voter Registration

DOJ Closes Police Inquiry, The Austin Chronicle, June

Should Texas death row inmates have more privileges?

Tex. Govt Code 552.001(a).

See Age Requirements on Google Accounts, Google Support Website,

Tex. Govt Code 552.001(a).

Courts review would result in a final interpretation to guide the

information to which a governmental body has a right of access. The

opposite situation one where the appellate courts holding barred

continuance of civil liberty, or the capacity for self-government. 7 The TPIA

Texas Declaration of Independence, 11 (obtained from the University of Houston at

See Austin Independent School District: Inequitable Funding and Vestiges of

See Democracy in Texas? Texas Faulty Voter Registration Procedures, Human

found evidentiary support for its policy advocacy regarding the

DOJ Closes Police Inquiry, The Austin Chronicle, June 3, 2011, p. 1.

Left untouched, the Austin Courts opinion would drastically

The Austin Courts holding means that the legislature utterly

December 2012 Interim Report to the 83rd Legislature addressing, among

Tex. Govt Code 552.002(a-2).

Public Information Handbook 2014 (Texas Attorney General), p. 18 (last accessed on

account the use of electronic devices and cellular phones by public

Tex. Govt Code 552.321(a).

enforcement mechanisms sufficed to give practical meaning to the

The Austin Courts holding conflicts with the TPIAs express

governmental body cannot be deemed to have refused to supply public

See id. at 324-25.