Fort Bend Independent School District, Petitioner, v. Ken Paxton, Attorney General of the State of Texas, Respondent
No. 23-0679
Supreme Court of Texas
September 19, 2025
JUSTICE YOUNG, concurring in the denial of the motion for rehearing.
On Petition for Review from the Court of Appeals for the Third District of Texas
JUSTICE YOUNG, concurring in the denial of the motion for rehearing.
Without public access to information about the workings of government, a self-governing People cannot fully exercise their рroper authority. The Texas Public Information Act reflects the legislature‘s attempt to maximize public access without undermining private rights or the effective and efficient functioning of the government. This case implicates one delicate aspect of that balancing act: managing information stored on government employees’ private cell phones. Governmental units cannot insulate themselves from the Act‘s reach merely by requiring employees to conduct all official business on personal devices (even if such a choice would not pose other problems, such as those related tо information security). At the same time, forcing government employees to yield their own devices to invasive searches to uncover purportedly public information that is comingled with private data impliсates important countervailing interests, which may be of constitutional dimension. The specific concerns that petitioner raises here warrant serious consideration, and petitioner‘s arguments are by no means frivolous. But I agree with the Court‘s decision to deny the motion for rehearing in this particular case because the requestor expressly asked for personal information to be redacted аnd the attorney general‘s letter ruling does not require the district to turn over confidential information.
I
Fort Bend ISD received a request for “detailed phone records, including, but not limited to, text messages, photo messages and inbound and outbound calls... on any device on which Fort Bend ISD business is conducted, redacted to exclude personal phone calls and any other information made confidential under state lаw,” as to named representatives. The district withheld the phone logs of its representatives’ personal cell phones, sent a sample of the information to the attorney general, and
A governmentаl body may not circumvent the applicability of the Act by conducting official public business in a private medium. Thus, to the extent the telephone calls at issue were made in connection with the transactiоn of public business of the district, this information is subject to the Act, and must be released unless it is excepted from disclosure.
(Citation omitted.)
Dissatisfied, the district sued the attorney general. See
In this Court, the district argues that the phone logs are not public information because they were “produced” by the phone companies and not by district employеes, see
II
The U.S. Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
True, it is possible that those cases leaned too heavily on the U.S. Supreme Court‘s interpretation of the federal Constitution—which, as examination of that Court‘s jurisprudence in area after area confirms, can change over time. And there is no inherent reason why our interpretation of the Texas Constitution must remain in lockstep with U.S. Supreme Court jurisprudence. See Tex. Dep‘t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 665, 674 (Tex. 2022) (Young, J., concurring).
But this Court has not overruled Texas State Employees Union or the cases on which it relied. Forcing employees to hand over their cell рhones, moreover, may constitute a search or seizure that directly implicates the text of the Fourth Amendment and Texas‘s article I, § 9—no emanations or penumbrae required. Cf. Griswold v. Connecticut, 381 U.S. 479, 484 (1965); see also Carpenter v. United States, 585 U.S. 296, 310 (2018) (holding that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured
It is easy to imagine how scouring an employee‘s phone for “detailed phone records, including, but not limited to, text messages, photo messages and inbound and outbound calls,” could infringe on constitutionally protected rights and unduly burden public servants. Those records may contain confidential information about a person‘s medical history, financial transactions, or personal life that justifiably should be kept private. As the district points out, many government employees receive less pay than they could earn in the private sector, and school district trustees are unpaid volunteers. See
I am not convinced, however, that the district representatives in this case face such a threat to their privacy or that the case provides an ideal vehiсle for the Court to examine that important issue. The requestor expressly asked that the records be “redacted to exclude personal phone calls and any other information made confidential under state law.” Thus, a respect for privacy was baked into the request. In addition, the attorney general‘s letter ruling stated that “to the extent the telephone calls at issue were made in connection with the transaction of public business of the district, this information is subject to the Act, and must be released unless it is excepted from disclosure.” (Emphasis added.) Thus, the district need not produce information about phone calls that did not pertain to рublic business. And the Public Information Act provides that “[i]nformation is excepted from” mandatory disclosure “if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision.”
While I likewise respect the district‘s concern about seizing and searching its employees’ phones, I see no reason why the district would need to do that here. Each employee has a duty to comply with the Act and produce responsive information. And each employee would be best able tо determine whether a particular phone call was business-related. Employees’ personal information need not ever reach the district, much less the requestor. A circumstance in which a requestоr had reason to believe that individual employees were not complying with the Act would trigger a different question. But because I do not see a serious threat to employee privacy in this case, and despite my agreement that the district‘s arguments are weighty, I agree with the Court‘s decision to deny the motion for rehearing. If a case reaches this Court in which the government requires (or is directed to require) its emplоyees to waive their right to privacy in their own phones, by contrast, I would be inclined to grant review.
* * *
In an appropriate case, the Court will need to carefully consider how the Act applies to privately owned cell phones and, if necessary, whether the protections of the U.S. and Texas Constitutions affect the analysis. The district‘s earnest litigation of this case has been helpful and valuable, and the Court has given its arguments respectful consideration. Denying the petition does not express any view of the underlying merits of the specific dispute before us; it simply means that the Court has chosen not to resolve the case. Despite my concerns and hesitation, I ultimately conclude that the Court‘s decision is correct and thus concur in it.
Evan A. Young
Justice
OPINION FILED: September 19, 2025