Appeal from the 151st District Court Harris County, Texas
Trial Court Case No. 2017-36113
consists of Justices Lloyd, Landau, and Countiss.
Michael Fallon, M.D., challenges the trial court's
rendition of summary judgment in favor of appellees, MD
Anderson Physicians Network and Michael W. Brown, as
President and Chief Executive Officer of MD Anderson
Physicians Network (collectively, "Physicians
Network"), in Fallon's suit for a writ of mandamus
and a declaratory judgment. In five issues, Fallon contends
that the trial court erred in granting the Physicians Network
summary judgment and denying him summary judgment.
first amended petition, Fallon alleges that he is an
individual residing in New York and the Physicians Network is
a "governmental body" of the State of Texas. Fallon
also alleges that the Physicians Network is a subsidiary of
The University of Texas MD Anderson Cancer Center (the
"Cancer Center") and the Physicians Network
maintains communications with the Cancer Center.
Fallon, pursuant to the Texas Public Information Act
("PIA"), served the Cancer Center with a public
information request, seeking nine categories of information,
including certain "electronic communications." It
is undisputed that the Cancer Center is a "governmental
body" under the PIA. Although the Cancer Center produced
some information responsive to Fallon's request, it also
informed him that "certain electronic communications
from September 2013 to [the] present . . . were maintained by
a . . . non-governmental body," i.e., the Physicians
11, 2016, Fallon, pursuant to the PIA, served the Physicians
Network with a public information request, seeking eleven
categories of information:
1) All documents, including but not limited to emails, faxes,
letters, text messages, instant messenger messages, other
electronic records, handwritten notes, typewritten notes, and
other records that are regarding, or that name or allude to,
in any way, Dr. Michael Fallon.
2) All documents . . . that are regarding, in any way, the MD
Anderson Certified Member program involving Our Lady of
Lourdes Memorial Hospital of Binghamton, New York, or its
3) All documents, . . . from September 1, 2013, to the
present, that name, concern, or allude to, in any way, any of
the [twelve listed] individuals[.]
4) The MD Anderson PN "Radiation Oncology Provider
Quality Assessment - Provisional" reports for
the Radiation Oncologists certified by MD Anderson at the
[fourteen listed] institutions with patient, physician, and
institution identifiers redacted. The information requested
pertains to the [forty-three] radiation oncologists listed on
the MD Anderson website.
5) All documents . . . that show the dollar amount of gross
revenue received by MD Anderson Physicians Network from the
[fourteen listed] institutions . . . .
6) All documents . . . that show the minutes, transcripts,
notes, or recordings of the University of Texas MD Anderson
Cancer Center and MD Anderson Physicians Network Board
meetings from September 1, 2013 to January 31, 2016, with all
patient identifiers redacted.
7) All documents . . . that show any agreements or
engagements that name or allude to, in any way, the [seven
8) All documents . . . that show the dollar amount of fees
paid by MD Anderson Physicians Network to the [seven listed]
consultants . . . .
9) All documents . . . that show the affiliation and
discovery or due diligence agreement between MD Anderson
Physicians Network and Our Lady of Lourdes Memorial Hospital
of Binghamton, NY, or its affiliates.
10) All documents . . . that show the name of the officer for
public information of MD Anderson Physicians Network between
January 1, 2015 and today. If only one person served as the
officer for public information of MD Anderson PN during that
period, one document showing the name of that person would
11) All documents . . . that are regarding, or that name or
allude to, in any way, [a listed individual].
the Physicians Network sought clarification of Fallon's
public information request, Fallon "clarified his
request as to time and specified parties." And the
Physicians Network sought an opinion from the Attorney
General as to whether it constituted a "governmental
body" under the PIA, whether it was subject to the
PIA's disclosure requirements, and whether certain
exceptions to disclosure applied. The Attorney General issued
an open records letter ruling, concluding that the Physicians
Network is not a "governmental body" and not
subject to the PIA or its disclosure
requirements. (Internal quotations omitted.)
to Fallon, despite the Attorney General's conclusion, the
Physicians Network is a "governmental body" and
subject to the PIA. Further, the information responsive to
Fallon's request is in the possession of the Physicians
Network and constitutes "public information." Thus,
Fallon seeks a writ of mandamus to compel the Physicians
Network to produce the information responsive to his
request. Fallon also seeks declarations that the
Physicians Network is a "governmental body" subject
to the PIA, the Physicians Network is the functional
equivalent of a "governmental body" subject to the
PIA, the Physicians Network is agent of a "governmental
body" subject to the PIA, and the Physicians Network
must disclose the information requested by
Physicians Network answered, generally denying Fallon's
allegations and asserting certain affirmative defenses.
then filed a combined no-evidence and matter-of-law
summary-judgment motion, arguing that the Physicians Network
is a "governmental body" under the PIA because it
was "created by the executive or legislative branch of
state government" and is "directed by one or more
elected or appointed members"; the Physicians Network is
the functional equivalent of a "governmental body"
because it is supported by public funds; the Physicians
Network "must make all public information in its
possession available to . . . Fallon regardless of its
status as a governmental body" because Fallon seeks
"public information" owned by and accessible to the
Cancer Center; and the Physicians Network presents no
evidence of any applicable exceptions to disclosure under the
PIA. (Internal quotations omitted.) Fallon
attached exhibits to his motion.
Physicians Network filed a response and a cross-motion for a
matter-of-law summary judgment, asserting that it did not
constitute a "governmental body" under the PIA as a
matter of law because it is not "created by . . . the
executive or legislative branch [of state government],"
is not "directed by elected or appointed members,"
and is not "supported, in whole or in part, by public
funds"; Fallon's "functional equivalent
argument" is misplaced and not "the correct legal
test" for determining whether an entity is subject to
the PIA; and Fallon's no-evidence summary-judgment motion
was premature and there is more than a scintilla of evidence
that the exceptions asserted by the Physicians Network
apply. The Physicians Network attached exhibits
to its response and cross-motion. And in connection with its
cross-motion for summary judgment, the Physicians Network
moved to file four summary-judgment exhibits in camera with
the trial court pursuant to the PIA.
reply to the Physicians Network's response, Fallon
asserted that the Physicians Network constitutes a
"governmental body" "because it [is] unable to
perform its services without governmental funding and acts as
the functional equivalent" of a "governmental
body"; the Physician's Network must disclose the
requested "public information" regardless of its
status as a "governmental body"; and there is no
evidence to support the Physician Network's "claimed
exceptions" to disclosure.
response to the Physicians Network's cross-motion for
summary judgment, Fallon argued that the Physicians Network
constitutes a "governmental body" because it was
"created by the [e]xecutive branch with [t]rustees
appointed by the [e]xecutive [b]ranch." Fallon
further argued that the Physicians Network was the
"functional equivalent" of a "governmental
body" because it is supported by public funds, it is
fully controlled by the government for the government's
purposes, and the Cancer Center, a governmental entity, is
not merely a client of the Physicians Network. Moreover,
Fallon asserted that, regardless of the Physicians
Network's status as a "governmental body" it
was required to provide Fallon with the requested information
because the information is "public information" and
owned by the Cancer Center. Fallon attached to his response
the same exhibits that he had previously attached to his own
summary-judgment motion. Fallon also opposed the Physicians
Network's motion to file its four summary-judgment
exhibits in camera.
trial court granted the Physicians Network's motion to
file its four summary-judgment exhibits in camera pursuant to
the PIA. The trial court then granted Physicians
Network's cross-motion for summary judgment and denied
Fallon's summary-judgment motion, ruling that the
Physicians Network is not a "governmental body"
under the PIA.
review a trial court's decision to grant summary judgment
de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n
of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Although the
denial of a summary-judgment motion is normally not
appealable, we may review such a denial when both parties
have moved for summary judgment and the trial court grants
one motion and denies the other. Id. In our review
of such cross-motions, we review the summary-judgment
evidence presented by each party, determine all issues
presented, and render the judgment that the trial court
should have rendered. Id. If we determine that a
fact issue precludes summary judgment for either party, we
remand the cause for trial. See Univ. of Tex. Health Sci.
Ctr. at Hous. v. Big Train Carpet of El Campo, Inc., 739
S.W.2d 792, 792 (Tex. 1987).
prevail on a matter-of-law summary-judgment motion, a movant
has the burden of establishing that he is entitled to
judgment as a matter of law and there is no genuine issue of
material fact. Tex.R.Civ.P. 166a(c); Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a plaintiff
moves for summary judgment on his own claim, he must
conclusively prove all essential elements of his cause of
action. Rhône-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999). When a defendant moves for
summary judgment, it must either (1) disprove at least one
essential element of the plaintiff's cause of action or
(2) plead and conclusively establish each essential element
of its affirmative defense, thereby defeating the
plaintiff's cause of action. Cathey, 900 S.W.2d
at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d
399, 404 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
When deciding whether there is a disputed, material fact
issue precluding summary judgment, evidence favorable to the
non-movant will be taken as true. Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
Every reasonable inference must be indulged in favor of the
non-movant and any doubts must be resolved in the
non-movant's favor. Id. at 549.
issues, Fallon argues that the trial court erred in granting
the Physicians Network summary judgment and denying him
summary judgment because the Physicians Network constitutes a
"governmental body" under the PIA; the Physicians
Network acts as the functional equivalent of a
"governmental body" and is subject to the PIA; the
Physicians Network is required to provide Fallon with the
requested information regardless of whether it is a
"governmental body"; and none of the exceptions to
disclosure under the PIA apply to the instant case.
purpose of the PIA is to provide the public with
"complete information about the affairs of government
and the official acts of public officials and
employees." Tex. Gov't Code Ann. § 552.001(a);
Jackson v. State Office of Admin. Hearings, 351
S.W.3d 290, 293 (Tex. 2011) (internal quotations omitted);
see also Paxton v. City of Dall., 509 S.W.3d 247,
251 (Tex. 2017) (fundamental precept of PIA is that
"[t]he 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" (alteration in original) (internal quotations
omitted)). Under the PIA, a "governmental body"
must promptly produce "public information" on
request unless an exception to disclosure applies and is
timely asserted. See Tex. Gov't Code Ann.
§§ 552.101-.159, 552.221; see also Paxton,
509 S.W.3d at 251; CareFlite v. Rural Hill Emergency Med.
Servs., Inc., 418 S.W.3d 132, 136 (Tex. App.-Eastland
2012, no pet.). Thus, as the Texas Supreme Court has noted,
the consequences of an entity being characterized as a
"governmental body" are considerable. Greater
Hous. P'ship v. Paxton, 468 S.W.3d 51, 57 (Tex.
2015) ("[A]n entity's disclosure obligations under
the PIA hinge on whether it is in fact a governmental
body." (internal quotations omitted)); see also
Cooper v. Circle Ten Council Boy Scouts of Am., 254
S.W.3d 689, 694 (Tex. App.-Dallas 2008, no pet.) ("If a
person requests public information from a governmental body
and the governmental body fails to disclose the information,
the requestor may enforce the statutory right of access by
suing for a writ of mandamus to compel disclosure.").
provides several definitions of a "[g]overnmental
body." See Tex. Gov't Code Ann. §
552.003(1) (internal quotations omitted); see also
Greater Hous., 468 S.W.3d at 57 (PIA defines
"governmental body as one of twelve different types of
entities" (internal quotations omitted));
CareFlite, 418 S.W.3d at 136. Determining whether an
entity is a "governmental body" that is subject to
the disclosure requirements of the PIA is a matter of
statutory construction that we review de novo. See
Greater Hous., 468 S.W.3d at 58 (internal quotations
omitted); City of Garland v. Dall. Morning News, 22
S.W.3d 351, 357 (Tex. 2000).
to the instant case, the PIA defines a "[g]overnmental
body" as follows:
(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;
(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
Gov't Code Ann. § 552.003(1)(A)(i), (xii).
interpreting a statute, our primary objective is to ascertain
and give effect to the Legislature's intent without
unduly restricting or expanding the statute's scope.
Greater Hous., 468 S.W.3d at 58; City of Lorena
v. BMTP Holdings, L.P., 409 S.W.3d 634, 641 (Tex. 2013).
We seek that intent first and foremost in the plain meaning
of the text. Greater Hous., 468 S.W.3d at 58;
City of Lorena, 409 S.W.3d at 641; see also Tex.
Lottery Comm'n v. First State Bank of DeQueen, 325
S.W.3d 628, 635 (Tex. 2010). "Undefined terms in a
statute are typically given their ordinary meaning, but if a
different or more precise definition is apparent from the
term's use in the context of the statute, we apply that
meaning." TGS-NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 439 (Tex. 2011); see also
Greater Hous., 468 S.W.3d at 58. "However, we will
not give an undefined term a meaning that is out of harmony
or inconsistent with other terms in the statute."
State v. $1, 760.00 in U.S. Currency, 406
S.W.3d 177, 180 (Tex. 2013); see also Greater
Hous., 468 S.W.3d at 58. Therefore, even if an
undefined term has multiple meanings, we recognize and apply
only the meanings that are consistent with the statutory
scheme as a whole. Greater Hous., 468 S.W.3d at 58.
We only resort to rules of construction or extrinsic aids
when a statute's words are ambiguous. Id.;
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d
433, 437 (Tex. 2009). Finally, in construing the PIA, we are
mindful of the legislative mandate that the PIA "shall
be liberally construed in favor of granting a request for
information." Tex. Gov't Code Ann. §
552.001(b); see also id. § 552.001(a);
Greater Hous., 468 S.W.3d at 58.
Created by the executive or legislative branch of
state government and directed by one or more
elected or appointed members.
first issue, Fallon argues that the Physicians Network
constitutes a "governmental body" under the PIA
because, under Texas Government Code section
552.003(1)(A)(i), the Cancer Center created the Physicians
Network, the Cancer Center is "a division of the
University of Texas System, an institution within the
executive branch of the state government," and the
Physicians Network was indirectly created by the executive
branch of the state government. Further, according to Fallon,
the Cancer Center "appoints each and every member of
[the Physician Network's] [b]oard of [d]irectors"
and the Cancer Center "exerts actual control over [the
Physicians Network's] operation."See
Tex. Gov't Code Ann. § 552.003(1)(A)(i). In
response, the Physicians Network asserts, ...