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Grant v. Texas State Attorney General

Court of Appeals of Texas, Fourteenth District

December 17, 2019

PATRICIA A. GRANT, PH.D., Appellant
v.
TEXAS STATE ATTORNEY GENERAL, OPEN GOVERNMENT RECORDS DIVISION; AND TEXAS HEALTH AND HUMAN SERVICES DEPARTMENT OF AGING AND DISABILITY SERVICES - OFFICE OF THE LONG-TERM CARE OMBUDSMAN PROGRAM OPEN RECORDS DIVISION, Appellees

          On Appeal from the 53rd District Court Travis County, Texas Trial Court Cause No. D-1-GN-18-002178

          Panel consists of Justices Christopher, Spain, and Poissant.

          MEMORANDUM OPINION

          Tracy Christopher Justice

         Plaintiff Patricia A. Grant appeals from the district court's order granting the plea to the jurisdiction and the motion to dismiss filed by the defendants the Office of the Attorney General of Texas ("the OAG") and the Texas Health and Human Services Commission ("HHSC"; collectively, "the Agencies").[1] We agree with Grant that the Texas Public Information Act grants her standing to pursue, and waives the Agencies' sovereign immunity from, her claims for declaratory and injunctive relief for the Act's violation. We therefore reverse the dismissal of Grant's requests for declaratory and injunctive relief for the Agencies' alleged violations of the Texas Public Information Act. Grant has not challenged the portion of the judgment granting the motion to dismiss as it pertains to her claims that the Agencies are complicit in elder abuse and in civil-rights violations; thus, we leave that part of the judgment intact. In all other respects, we affirm the trial court's judgment, and we remand for further proceedings consistent with this opinion.

         I. Background

         Appellant Patricia A. Grant sued the Agencies based on their failure to produce certain documents in response to her open-records requests under the Texas Public Information Act ("the Act"). She also pleaded that the Agencies' alleged violations of the Act make them complicit in elder abuse and "family advocate civil rights law violations." Pursuant to the Act, she pleaded for unspecified injunctive relief, for a declaration that the Agencies have violated the Act, and for a writ of mandamus compelling the Agencies to produce certain documents. Grant further pleaded for various other declarations of her rights under unidentified provisions of the state's constitution and laws. In addition, she asked the trial court to intervene to remedy or prevent elder abuse, "hostile nursing facility environments," manipulation and coercion of elderly residents of nursing homes, medical negligence, "elderly fear of police involvement," "failed ombudsman nursing facility residency civil rights protection," and continuing endangerment of a nursing-facility resident's health and well-being.

         Of the claims Grant pleaded in the trial court, she challenges on appeal only the dismissal of her claims for declaratory and injunctive relief for the Agencies' alleged violation of the Act. We therefore describe her factual allegations only as to those claims.

         A. Grant's Claims Against the OAG

         Grant alleges that she requested information from the Department of Family & Protective Services ("DFPS") related to certain elder-abuse complaints, which she identified by complaint number, case number, or by the identity of the alleged victim or perpetrator. Her records request was denied. According to Grant, the OAG unconstitutionally granted DFPS "a waiver of plaintiff's release of information waiver request" and failed to reply to her "rebuttal letter." She contends that the OAG's failure to revoke the waiver violates the Act.

         B. Grant's Claims Against HHSC

         Grant similarly alleges that HHSC violated the Act. She alleges that she made open-records requests to HHSC's predecessor[2] in June and September of 2015, but she does not identify the documents she requested. She asserts that HHSC finally responded on March 16, 2016, "without [an OAG] waiver, requested documents, or cost quotes." She seeks an order compelling HHSC to produce "all 61 pages as handwritten on an envelope enclosed with defendant's March 16, 2016 letter." She also asked the trial court to require HHSC to produce to Grant "any [and] all Ombudsman information," including investigations, incident reports, and complaints, together with "any and all other court admissible information not listed, as the information pertain[s] directly or indirectly to" a particular nursing-home resident.

         C. The Agencies' Response

         The Agencies filed a plea to the jurisdiction combined with a motion to dismiss under Texas Rule of Civil Procedure 91a. They argued in their plea to the jurisdiction that (1) Grant lacks standing to assert claims on behalf of a third party, (2) the Agencies have sovereign immunity from suit and from monetary damages, [3](3) Grant's requests for information under the Texas Public Information Act are considered withdrawn as a matter of law, and (4) a claim under the Uniform Declaratory Judgments Act does not confer jurisdiction on the trial court. The Agencies moved to dismiss under Texas Rule of Civil Procedure 91a on the grounds that (1) they have sovereign immunity from suit; and (2) Grant alleged "complicit ongoing elder abuse and advocate civil rights violations" but "allege[d] too few facts to demonstrate a viable, legally cognizable right to relief." The trial court granted both the plea and the motion and dismissed Grant's claims with prejudice.

         In her first two issues, Grant contends that she has standing to sue under the Texas Public Information Act, which also waives the Agencies' immunity from suit for declaratory and injunctive relief for violating the Act. Grant's five remaining issues concern matters that are not properly before us.

         II. Grant Has Not Abandoned Her Appeal

         As a threshold issue, the Agencies assert that Grant has abandoned her appeal by failing to address the grounds on which the district court dismissed her claims. According to the Agencies, these grounds are that (1) Grant lacks standing, (2) the Agencies have sovereign immunity from suit, and (3) the records sought are confidential.

         The Agencies are mistaken. Grant addresses standing and sovereign immunity in her appellate brief, and the allegedly confidential nature of the records she seeks are not at issue in this appeal for two reasons.

         First, confidentiality of the records is not jurisdictional. The Agencies themselves characterize confidentiality as a "defense" to the failure to disclose.[4]Confidentiality is relevant to the merits of Grant's claims that the Agencies have violated the Texas Public Information Act, and because "[t]he purpose of a plea to the jurisdiction is to 'defeat a cause of action without regard to whether the claims asserted have merit, '"[5] the Agencies appropriately did not raise this merits argument in their plea to the jurisdiction.

         Second, although certain merits arguments could be addressed through a motion to dismiss under Rule 91a, the Agencies did not move for dismissal on the grounds that Grant sought confidential records. To the contrary, they challenged Grant's claims under the Act only on the jurisdictional ground of sovereign immunity. The remainder of the Agencies' motion to dismiss was directed to Grant's claims of "complicit ongoing elder abuse and advocate civil rights violations," and the Agencies challenged those claims on the ground that Grant "alleges too few facts to demonstrate a viable, legally cognizable right to relief." Confidentiality was never mentioned, and the Agencies could not raise a new ground at the hearing. See Tex. R. Civ. P. 91a.2 ("A motion to dismiss . . . must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both."). Further, the trial court's judgment indicates that it did not consider the Agencies' assertions at the hearing that the records requested from DFPS are confidential.[6] The trial court instead stated in the judgment, "After due consideration of the law and the filings of parties, the Court finds said motion meritorious." The record therefore does not show that the trial court erroneously treated the confidentiality argument as jurisdictional or considered arguments raised for the first time at the hearing on the motion to dismiss.

         III. Grant's Appeal as ...


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