Court of Appeals of Texas, Third District, Austin
Susan Lewis King and Austin King, M.D. Appellants
Ken Paxton, Attorney General of Texas; and The City of Abilene, Texas Appellees, Ken Paxton, Attorney General of Texas Cross-Appellant Susan Lewis King and Austin King, M.D. Cross-Appellees,
THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-16-001160, HONORABLE LORA J. LIVINGSTON, JUDGE
Justices Goodwin, Baker, and Triana.
D. Triana, Justice.
Susan Lewis King and Austin King, M.D., appeal from portions
of the district court's summary judgment ordering the
disclosure of certain information under the Public
Information Act (PIA). Cross-appellant Ken Paxton, the
Attorney General of Texas, appeals from other portions of the
summary judgment ordering that certain information be
withheld from disclosure. We will affirm in part and reverse
and render in part the judgment of the district court.
Lewis King (hereinafter referred to as Mrs. King) is a former
member of the Texas House of Representatives for District 71
based in Abilene. Austin King, M.D., (hereinafter referred to
as Dr. King) is her husband. On the night of October 11,
2015, Abilene Police Department (APD) officers arrived at the
Kings' residence to conduct a "welfare check"
on Mrs. King, who was home alone at the time. Mrs. King did
not immediately answer the door when the officers knocked and
instead called 911 to report what she believed to be a
burglary. After dispatch convinced Mrs. King that the people
knocking on her door were police officers, she opened the
door, stepped outside onto her front porch, and proceeded to
speak with the officers and other individuals regarding
King's conversations occurred primarily on her front
porch but also inside her home. Two of the officers'
patrol-car dash cameras that captured video from within the
cars and audio from microphones that were worn on each
officer's body recorded the event. Toward the end of
the incident, Mrs. King agreed to accompany the officers to a
location where her mental health could be evaluated. The
police vehicle that transported Mrs. King to that location
was equipped with a camera that recorded video from inside
the vehicle, while the body microphones of the two officers
involved in the transport recorded the audio inside the
for a local television station, KTXS, later filed
open-records requests seeking to obtain police records
related to the incident. The requested records included the
audio and video recordings summarized above,  incident reports
and notes prepared by APD officers, and emails exchanged
among APD officers, the Abilene City Attorney, and the
Department of Public Safety (DPS).
City of Abilene sought rulings from the Attorney General as
to whether the records responsive to the requests should be
released. In its requests for information, the City raised
two exceptions to disclosure under the Texas Government Code:
(1) Section 552.108(a)(2), which excepts from disclosure
information held by a law enforcement agency or prosecutor
that deals with the detection, investigation, or prosecution
of crime, if the information is in relation to an
investigation that did not result in conviction or deferred
adjudication; and (2) Section 552.101, which excepts from
disclosure "information considered to be confidential by
law, either constitutional, statutory, or by judicial
decision," and encompasses the doctrine of common-law
privacy. The Attorney General issued letter rulings
concluding that some but not all of the information was
excepted from disclosure, and the Attorney General ordered
the City to release the information that it had concluded was
not excepted from disclosure. See Tex. Att'y
Gen. OR2016-05287, OR2016-05982.
Kings then filed suit against both the Attorney General and
the City of Abilene, seeking declaratory and injunctive
relief that the information at issue was excepted from
disclosure in its entirety. The parties filed cross-motions
for summary judgment. The Kings, in their motion, raised
additional exceptions to disclosure. These exceptions, which
we discuss in detail below, included Section 552.108(b)(2) of
the Texas Government Code, Section 1701.661(f) of the Texas
Occupations Code, Section 611.002 of the Texas Health and
Safety Code, and Section 552.109 of the Texas Government
Code. The Kings also argued that disclosure of the
information would violate their constitutional and common-law
rights to privacy.
district court granted in part and denied in part the
cross-motions for summary judgment filed by the Kings and the
Attorney General. In a decision letter that preceded its
ruling, the court explained that it agreed that the material
withheld by the Attorney General was excepted from disclosure
but concluded that additional information should also be
withheld, mostly under the doctrine of common-law privacy.
However, the court also ruled that additional information was
excepted from disclosure: one of the emails between an APD
officer and DPS, citing to Section 411.192 of the Texas
Government Code; three portions of the audio recordings of
Mrs. King's conversations that occurred while Mrs. King
was inside her home, citing to Section 1701.661(f) of the
Texas Occupations Code; and three portions of the audio
recordings of Mrs. King's conversations with a
mental-health professional, citing to Section 611.002 of the
Texas Health and Safety Code.
the Kings and the Attorney General have appealed from the
district court's judgment. The Kings argue on appeal that
all of the information at issue should be withheld, while the
Attorney General argues on cross-appeal that the Occupations
Code exception does not apply to any of the recordings made
during the welfare check. The Attorney General does not
challenge the district court's decision to order the
withholding of any other information.
case requires us to construe statutory exceptions to
disclosure under the PIA. The statutory-construction issues
arise in the context of cross-motions for summary judgment
that the district court granted in part and denied in part.
In our review of such cases, "we determine all issues
presented and render the judgment the trial court should have
rendered." Colorado Cty. v. Staff, 510 S.W.3d
435, 444 (Tex. 2017) (citing Merriman v. XTO Energy,
Inc., 407 S.W.3d 244, 248 (Tex. 2013)).
construction presents a question of law that we determine de
novo under well-established principles." Paxton v.
City of Dallas, 509 S.W.3d 247, 256 (Tex. 2017) (citing
TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d
68, 74 (Tex. 2016)). "When construing a statute, our
primary objective is to give effect to the Legislature's
intent." Staff, 510 S.W.3d at 444. "We
seek that intent 'first and foremost' in the
statutory text, and '[w]here text is clear, text is
determinative' of intent." Id. (quoting
Greater Hous. P'ship v. Paxton, 468 S.W.3d 51,
58 (Tex. 2015); Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009)). "The
plain meaning of the text is the best expression of
legislative intent unless a different meaning is apparent
from the context or the plain meaning leads to absurd or
nonsensical results." Molinet v. Kimbrell, 356
S.W.3d 407, 411 (Tex. 2011). "When interpreting the
Legislature's words, however, we must never 'rewrite
the statute under the guise of interpreting it,' and we
may not look beyond its language for assistance in
determining legislative intent unless the statutory text is
susceptible to more than one reasonable interpretation."
Staff, 510 S.W.3d at 444 (quoting In re Ford
Motor Co., 442 S.W.3d 265, 284 (Tex. 2014), and citing
Texas Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452
(Tex. 2012)). Stated another way, "[w]e must enforce the
statute 'as written' and 'refrain from rewriting
text that lawmakers chose.'" Jaster v. Comet II
Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting
Entergy Gulf States, Inc., 282 S.W.3d at 443).
"If a statute uses a term with a particular meaning or
assigns a particular meaning to a term, we are bound by the
statutory usage." TGS-NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 439 (Tex. 2011) (citing Texas
Dep't of Transp. v. Needham, 82 S.W.3d 314, 318
(Tex. 2002)). "We presume that the Legislature chooses a
statute's language with care, including each word chosen
for a purpose, while purposefully omitting words not
chosen." Id. (citing In re M.N., 262
S.W.3d 799, 802 (Tex. 2008)). Moreover, "[l]anguage
cannot be interpreted apart from context" and the words
chosen by the Legislature "must be read in the context
of the whole statute." Id. at 441. Finally,
although "absurd" results are to be avoided, we
must be mindful that the "absurdity safety valve is
reserved for truly exceptional cases, and mere oddity does
not equal absurdity." Combs v. Health Care Servs.
Corp., 401 S.W.3d 623, 630 (Tex. 2013).
principles in construing the PIA
PIA embodies the State's policy 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.'" City of Dallas, 509 S.W.3d at
251 (quoting Tex. Gov't Code § 552.001(a)).
"Under the PIA, the public has a right of access to
'public information,' a broadly defined term."
Id. (citing Tex. Gov't Code §§
552.002(a), .021). Thus, the Legislature has provided that
the PIA "shall be liberally construed in favor of
granting a request for information." Tex. Gov't Code
right to access is not absolute, however; the Legislature
incorporated into the PIA more than sixty exceptions to the
public-disclosure requirement," ranging from "very
broad to more specific categories of information."
City of Dallas, 509 S.W.3d at 251. "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."
Texas Dep't of Pub. Safety v. Cox Tex. Newspapers,
L.P., 343 S.W.3d 112, 114 (Tex. 2011). However,
"the Legislature has clearly expressed its intent that
exceptions to disclosure be construed narrowly."
Jackson v. State Office of Admin. Hearings, 351
S.W.3d 290, 299 (Tex. 2011). With these principles in mind,
we turn to the exceptions to disclosure that are at issue in
552.108(b)(2) of the Texas Government Code
Kings first argue that all of the information at issue is
excepted from disclosure under Section 552.108(b)(2) of the
Texas Government Code. This exception provides that
"[a]n 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 [disclosure] if the
internal record or notation relates to law enforcement only
in relation to an investigation that did not result in
conviction or deferred adjudication." Tex. Gov't
Code § 552.108(b)(2). According to the Kings, the
welfare check on Mrs. King was an "investigation that
did not result in conviction or deferred adjudication,"
and all of the information at issue consists of APD's
internal records relating to that "investigation."
Therefore, in the Kings' view, none of the records from
the welfare check should be disclosed.
threshold question for the Kings is whether they can raise
this exception. "Typically, a request for public
information involves two parties, the governmental body
holding the information and the citizen requesting it, and
the governmental body must promptly ask the Attorney General
for a ruling, if it believes an exception applies."
Boeing Co. v. Paxton, 466 S.W.3d 831, 833 (Tex.
2015). Thus, as a general rule, "the Public Information
Act requires a governmental body to raise and argue any
applicable disclosure exception to the Attorney General as a
prerequisite to judicial review." Id. at 837
(citing Tex. Gov't Code §§ 552.301-.303,
.324-.326). Here, the City did not raise Section
552.108(b)(2) as an exception to disclosure.
in Boeing, the Texas Supreme Court held that the
governmental body need not raise the exception "when the
requested information implicates another person's privacy
or property interests." Id. (citing Tex.
Gov't Code § 552.305). In such circumstances, the
third party whose privacy or property interests are
implicated may also raise the exception, and the governmental
body's failure to raise the exception does not waive the
issue for the third party. Id. at 837-38. The Kings
assert that Section 552.108(b)(2) implicates their privacy
interests and that, per the holding in Boeing, they
are entitled to raise the exception themselves. The Attorney
General argues that Section 552.108 does not implicate a
third party's privacy interests and, consequently,
Boeing does not apply here.
not decide in this case whether Boeing applies to
Section 552.108(b)(2) because, even if it did, we cannot
conclude that the exception covers the records related to the
welfare check in this case. In City of Fort Worth v.
Cornyn, 86 S.W.3d 320 (Tex. App.-Austin 2002, no pet.),
this Court discussed the types of records that are excepted
from disclosure under Section 552.108(b). In that case, the
issue was whether the PIA authorized the City to withhold
information that it had obtained as part of its evaluation of
an individual who had applied for employment as a police
officer. Id. at 321. The City argued that the
information was excepted from disclosure under Section
552.108(b)(1), which provides that "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 [disclosure] if release of the internal record or notation
would interfere with law enforcement or prosecution."
Tex. Gov't Code § 552.108(b). The City argued that
the term "law enforcement" should be broadly
construed to encompass information related to law-enforcement
hiring decisions. See City of Fort Worth, 86 S.W.3d
Court disagreed and instead narrowly construed "law
enforcement," limiting the exception to matters related
to "enforcing the law." Id. at 326-27.
This Court explained that "the exception evidences the
Legislature's recognition of the peculiar considerations
release of internal police records could have on a police
department's ability to enforce the law,"
id. at 326, and the Court was unable to conclude
that the release of the requested information "would
have any effect on the City's ability to enforce the law,
at least not in the manner contemplated by the Legislature in
enacting section 552.108," id. In this
Court's view, "a more reasonable interpretation of
the statutory language reveals that the type of internal
records that could interfere with law enforcement are those
that would divulge a police department's methods,
techniques, and strategies for preventing and predicting
crime." Id. (emphasis added).
Court added that by linking the terms "law
enforcement" and "prosecution," the
Legislature demonstrated an intent "to include within
the law enforcement exception only that type of information
that relates to violations of the law." Id. at
327. The Court explained:
If, instead of limiting the scope of the law enforcement
exception as we do, we accepted the City's argument that
any activity engaged in by a police department is exempt from
disclosure under section 552.108, we would allow the
exception to swallow the rule. Because everything a police
department does arguably involves law enforcement, were we to
adopt the City's interpretation, none of a police
department's records would be subject to disclosure. The
more reasoned approach, and the one we adopt, limits section
552.108(b)(1) to that type of information which, if released,
would permit private citizens to anticipate weaknesses in a
police department, avoid detection, jeopardize officer
safety, and generally undermine police efforts to effectuate
the laws of this State.
the holding in City of Fort Worth, we reach a
similar conclusion regarding Section 552.108(b)(2). We first
observe that the Legislature limited all three exceptions
under Section 552.108(b) to "matters relating to law
enforcement or prosecution" and then used additional
language in each exception demonstrating an intent to
restrict the exception to matters related to "enforcing
the law" or prosecuting "violations of the
law." See Tex. Gov't Code §
552.108(b)(1) (excepting from disclosure internal records or
notations that "would interfere with law enforcement
or prosecution"), (2) (excepting from disclosure
internal records or notations that "relate to law
enforcement only in relation to an investigation that did not
result in conviction or deferred
adjudication"), (3) (excepting from disclosure
internal records or notations that are "prepared by an
attorney representing the state in anticipation of or in the
course of preparing for criminal litigation or
reflect the mental impressions or legal reasoning of an
attorney representing the state") (emphases added). We
conclude that the Legislature, by including the terms
"conviction or deferred adjudication" in Section
552.108(b)(2), intended to limit this exception to
criminal investigations, because only a criminal
investigation could result in a person being convicted or
placed on deferred adjudication. Thus, for Section
552.108(b)(2) to apply, there must be a criminal
investigation that did not result in conviction or deferred
adjudication. See, e.g., City of Carrollton v.
Paxton, 490 S.W.3d 187, 196 (Tex. 2016) (concluding that
Section 552.108(b)(2) applied to records relating to "an
alleged assault with property damage" that "gave
rise to misdemeanor charges that were ultimately dismissed
pursuant to an agreement involving payment of
welfare check is not a criminal investigation. When the
police are conducting a welfare check, they are not
"enforcing the law" or investigating
"violations of the law." Rather, the officers are
checking on an individual's well-being. Welfare checks
are considered to be within an officer's "community
caretaking functions," which are "totally divorced
from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute."
Cady v. Dombrowski, 413 U.S. 433, 441 (1973);
Byram v. State, 510 S.W.3d 918, 922 (Tex. Crim. App.
2017). Although a welfare check could, in some situations,
evolve into a criminal investigation, depending on what the
officers observe during the encounter, see, e.g.,
Wright v. State, 7 S.W.3d 148, 150 (Tex. Crim. App.
1999) (welfare check evolved into narcotics investigation),
that is not what occurred here. The record does not indicate
that at any point during the welfare check, the officers
began investigating "violations of the
law." Thus, the welfare check did not result in
conviction or deferred adjudication because no person was
subject to a criminal investigation in which conviction or
deferred adjudication could result.
that records related to welfare checks are outside the scope
of Section 552.108(b)(2), absent evidence that the welfare
check became a criminal investigation. Thus, the records in
this case, which relate solely to a welfare check, are not
excepted from disclosure under Section 552.108(b)(2). This
construction of the statute is consistent both with this
Court's prior decision in City of Fort Worth and
the statutory requirement that exceptions to disclosure are
to be "construed narrowly." See Jackson,
351 S.W.3d at 299; City of Fort Worth, 86 S.W.3d at
326-27; see also Morales v. Ellen, 840 S.W.2d 519,
525-26 (Tex. App.-El Paso 1992, writ denied) (concluding that
statutory predecessor to Section 552.108 was not applicable
to internal investigation of officer's sexual misconduct
because "no criminal investigation or prosecution
resulted from the investigation"); Tex. Att'y Gen.
OR1981-0287 (concluding that statutory predecessor to Section
552.108 was not applicable to record kept by Community
Services Division of Dallas Police Department because record
"does not concern the detection and investigation of
crime" and was associated with police department's
provision of social services "rather than more
traditional police work"). Accordingly, the district
court did not err in failing to apply Section 552.108(b)(2)
to the records in this case.
1701.661(f) of the ...