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King v. Paxton

Court of Appeals of Texas, Third District, Austin

June 6, 2019

Susan Lewis King and Austin King, M.D. Appellants
v.
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,

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-16-001160, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana.

          OPINION

          Gisela D. Triana, Justice.

         Appellants 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.

         BACKGROUND

         Susan 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 various matters.

         Mrs. 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.[1] 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 vehicle.[2]

         Reporters 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, [3] 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).

         The 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.

         The 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.

         The district court granted in part and denied in part the cross-motions for summary judgment filed by the Kings and the Attorney General.[4] 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;[5] 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;[6] 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.[7]

         Both the Kings and the Attorney General have appealed from the district court's judgment.[8] 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.

         STANDARD OF REVIEW

         This 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)).

         "Statutory 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).

         ANALYSIS

         General principles in construing the PIA

         "The 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 § 552.001(b).

         "The 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 this case.

         Section 552.108(b)(2) of the Texas Government Code

         The 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.

         The 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.

         However, 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.

         We need 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 at 325-36.

         This 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).

         This 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.

Id.

         Following 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 restitution").

         A 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."[9] 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.

         We hold 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.

         Section 1701.661(f) of the ...


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