*1 The untimeliness of the hearing. sion preservation. fatal to error
complaint is preservation- raise did not its
The State original briefing in its in argument
of-error Nor did this court address court.
this in on orig- of error its
preservation Nonetheless, lack of er-
inal submission. may be raised on remand preservation
ror Appeals, even
from the Court Criminal court did not address
though high opinion.22 error in its If
preservation of preserved appel- was not complaint review, it is waived.23
late timely did not raise appellant
Because first, “question complaint, warn later” preserve
he failed to error .the trial
court, may not and this court reverse the on judgment
trial court’s based this com-
plaint.24 Accordingly, this court should sole issue affirm appellant’s
overrule judgment.
the trial court’s Because the so, respectfully not do I dissent. does ABBOTT,
Greg Attorney General of Texas, Appellant
the State of
v. DALLAS, Appellee OF
CITY
NO. 03-13-00686-CV Texas, Appeals
Court
Austin.
Filed: December
22.See,
State,
e.g.,
complaint,
addressing preserva-
Pena v.
late
without
459
,
(Tex.Crim.App.2009) (holding
appel
error).
tion preserve
lant failed to
error in the trial court
appellate complaint,
though
as to
even
23.
at 463-64.
See id.
Appeals previously
Court of Criminal
had va
appeals's judgment
cated the court
Pena,
463-64; Hailey,
24. See
285 S.W.3d at
remanded to the intermediate court based on
Paul Stoinoff Theodore for Intervenor. Hunt,
Rosalind
Attorney
Office of the
General,
Division,
Administrative Law
Austin, TX, for Appellant.
Rosenberg,
Barbara
Assistant
At-
Pinson,
torney, James B.
City Attorney’s
Office, Dallas, TX, Appellee.
Jones,
Before Chief Justice
Justices
Rose and Goodwin
552.107(1).
Tex.R.
552.101 and
Evid.
OPINION
503;
Disciplinary
Rules Prof'l Con
Goodwin,Justice
Melissa
1.05(b), reprinted
R.
in Tex. Gov’t
duct
Abbott, Attorney General of the
Greg
(Tex.
G,
Code,
A
State
app.
tit.
subtit.
AG)
(the
Texas,
from the
appeals
State of
9).
X, §
Bar
art.R.
that documents
trial court’s determination
*3
OR2010-08285, the AG
Ruling
In Letter
to withhold from
sought
Dallas
City
the
dispute
not
the information at
did
the Public Infor-
under
public disclosure
attorney-client
was
the
issue
Act)
(PIA the
as confidential
or
mation Act
(1)
attor-
privilege but concluded that
the
except-
communications are
attorney-client
may not be asserted
ney-client privilege
the reasons
may withheld. For
ed and
be
(2) although
under
552.101 and
section
the trial court’s deci-
we affirm
that follow
under
privilege may be asserted
sion.
552.107(1),
discretionary
that section is
and
be waived unless the
AND PROCEDURAL
FACTUAL
require-
body complies
procedural
with the
BACKGROUND
PIA. The AG concluded that
ments of the
19, 2010,
City
February
received
On
City
failed to
with
because the
had
Timothy
for
request
a PIA
from
S. Perkins
requesting
the Act for
the deadline under
to
pertaining
operation
within ten
attorney general’s opinion
an
City.
operated by
and
a landfill owned
days
receiving
request,
business
30, 2010,
City, seeking
to
On March
to demonstrate a com-
City
required
was
from the re-
exclude certain documents
withholding the informa-
pelling reason for
sought
from the AG’s
quest,
nature
independent
privileged
docu-
specified
office as to whether
552.301(b)
§§
of the information. See id.
subject
public
were
to
disclosure or
ments
body to seek at-
(requiring governmental
believing
was correct in
whether the
later than
torney general’s opinion no
10th
protected
were
from disclo-
documents
day
receiving
after
written re-
business
attorney-client
sure as
communications.
quest),
(providing
govern-
.302
that when
§§
(requiring
See Tex. Gov’t Code
552.021
body
attorney
not request
mental
does
.301(a)
information),
public
disclosure of
statutory
within
dead-
general’s decision
who be-
(requiring recipient
line,
presumed public
information is
and
exception applies
lieves
to ask for decision
there
“compel-
must be released unless
is
attorney general determining
from
wheth-
withhold).
ling reason” to
The AG further
er
infor-
agency
required
is
to disclose the
concluded that the
had failed to dem-
mation).
City sought
The
to withhold the
onstrate a
reason to withhold
documents under
sections 552.101 and
City to
the information and ordered the
552.107(1)
§§
of the PIA. See id.
552.101
release it.
(exempting information deemed confiden-
law,
law,
statutory
City disputed
ruling
tial
constitutional
The
the letter
and
.107(1)
decision),
AG,
against
seeking
suit
a deter-
(permitting gov-
filed
attorney-client
ernmental bodies to assert
mination that
the information consists of
privilege
found in Rules of Evidence and
communications
privileged
See id.
Disciplinary
subject
Rules
Professional Con- and is not
disclosure.
duct).
body may
§
file
(governmental
The
contended that Rule of
552.324
suit
in
Disciplinary
against attorney general
County
Evidence 503 and
Rule of Pro-
Travis
1.05(b)
declaratory
seeking
fessional
the in-
relief
to withhold
brought
Conduct
information).
its
scope
posi-
formation within the
of sections
The
reasserted
tion,
exempt
tion that the information was
un-
both.
Tex. Gov’t Code
552.107(1)
552.221(a).
§
552.101
der sections
and
The PIA
public
defines
in
argued
confidentiality
under the attor-
any
formation as
information that is “col
ney-client privilege
lected, assembled,
and the harm to the
or maintained under a
City’s
bargaining position
a multimil-
law or ordinance or in connection with the
long-term
lion-dollar
transaction are com-
transaction of official
“by gov
business”
pelling reasons to withhold the informa-
body[]
ernmental
or for a governmental
tion.
parties
The
filed cross-motions for body and the governmental body owns the
summary judgment. The trial court de-
information or has a right of access to it.”
nied the AG’s motion and granted the
552.002(a)(1), (2).
Id.
Certain informa
motion,
City’s
ordering that the informa-
tion is specifically excepted
required
from
public
tion was
disclosure
§§
disclosure.
Id.
552.101-.154 (Subchap
awarding
litigation.1
costs of
C).
ter
*4
552.323(b)
§
(providing
may
See id.
If governmental
a
body believes that the
party
substantially pre-
award fees to
that
requested information
is
from
vails).
In a
simultaneously
letter issued
disclosure, and if there has been
previ-
explained
with its
the trial court
opinion,
ous determination on the subject, the Act
ruling
its
and stated its conclusion that the
requires
body to state
attorney-client privilege
inherently
is an
exceptions
it
apply
believes
and re-
compelling reason to withhold disclosure. quest
opinion
an
from the attorney general
This appeal followed.
not
day
later than the tenth
receiving
after
552.301(a),
§
request.
(b);
Id.
City of
APPLICABLE LAW
Garland,
584 Garland, attorney’s fees a 22 Our primary incurred S.W.3d 357. reasonable substantially prevails. Tex. express statutory language. concern is the party who 552.323(b). Consultants, § Eng’g Gov’t Code See Galbraith Inc. v. (Tex.2009). Pochucha, 863, 867 Review Standard of apply plain meaning We of the text parties do not dis Because meaning supplied by unless a different is facts, proper relevant this is a pute the definition or legislative apparent is summary judgment. case for plain meaning the context or the leads to Garland, 22 at 356. review a S.W.3d We Epis absurd results. Marks v. St. Luke’s summary judgment de novo. trial court’s 658, copal Hosp., 319 S.W.3d Joachim, v. Travelers Ins. Co. 2010). generally construing in “We avoid (Tex.2010). 860, the trial court When provisions dividual of a statute isolation grounds for specify granting does not whole[,]” from the statute as a Texas Citi motion, uphold judgment we must zens, 336 S.W.3d at we must consider any grounds if asserted in the mo provision’s role in the statutory broader preserved appellate tion and review are scheme, Parker, v. see Inc. Provident & Accident meritorious. Life (Tex.2008), pre and we Knott, v. Ins. Co. sume that “the entire statute is intended to (Tex.2003). parties When both move for effective[,]” be Tex. Gov’t Code each summary judgment, party bears the 311.021(2). *5 establishing that it burden of is entitled to judgment as a matter of law. Garland, 356; 22 S.W.3d at Abbott v. Dal DISCUSSION Transit, 876, Rapid Area 410 las issue, In his first the AG argues pet.). (Tex.App.-Austin that the trial in holding court erred parties summary both move for When the information at issue is on the same issues judgment trial disclosure because the timely did not grants one motion and denies attorney general’s an opinion and other, summary we consider the judgment then failed to demonstrate a compelling sides, presented by evidence both deter withholding reason for the information as questions presented, mine all if and we required under the PIA when the deadline erred, determine that the trial court ren for requesting an is missed. See judgment der the the trial court should 552.301(b), §§ Tex. Gov’t Code .302. The Operating have rendered. Valence v.Co. AG not dispute does that the information Dorsett, (Tex.2005) consists of communications (citing FM Props. Operating Co. v. Rather, attorney-client privilege. Austin, (Tex.2000)). position the core of the AG’s premise is the require attorney-client The AG’s issues us to con that the privilege must be 552.107(1), strue the PIA. In general, matters of raised under section per which statutory are questions construction of law governmental mits bodies to assert that we review de novo. See Railroad attorney-client privilege found in the Rules Comm’n v. Texas a Fu Disciplinary Citizens Evidence and the Rules of Safe Water, Conduct, ture & Clean Professional and cannot be as (Tex.2011). 552.101, “Specifically, whether infor serted under section which ex subject mation is to the Act empts and whether information deemed confidential law, law, to exception applies disclosure to the constitutional statutory judicial .107(1). questions 552.101, §§ information are of law.” decision. See id. Cit- decisions, attorney ing only prior general’s prohibit does not voluntary disclosure un- statutory the AG contends that exceptions, less disclosure is expressly prohibited by 552.107(1), such as that in section cannot law or information is confidential under through law). be raised section 552.101 and that The AG concludes that these excep- discovery such privileges, attorney- as the themselves, therefore, tions and of can- law, privilege, client are not “constitutional reasons, not constitute compelling and a law, within statutory decision” governmental body claiming exemption un- meaning of section 552.101. der one of exceptions these that misses the 552.301(b) deadline under section must The distinction the AG draws between independent demonstrate an exceptions raised under section 552.101 reason to withhold the information. 552.107(1) and those raised under section is on the excep- founded AG’s division of Applying here, this distinction the AG (1) tions categories: into two those that argues as follows: Because a client use the express terms “confidential” or waive privilege, it is “confidentiality,” including section 552.101 discretionary, and because Rule of Evi- (the (2) “confidentiality exceptions”), and dence 503 and Disciplinary Rule of Profes- AG, all According others. to the the “con- 1.05(b) sional Conduct do not make infor- fidentiality exceptions” make information mation purposes confidential for of section law, expressly confidential under are man- 552.101, City may not assert the privi- See, datory, and cannot be waived. e.g., lege Instead, under that exception. 552.101, .109, .110, .1175, .1176, §§ .119, id. City must assert it under .121; 552.352(a) see also id. (making it 552.107(1). 552.107(1) Because section criminal offense to distribute confidential protects a governmental interests, body’s information). governmental Because bod- it is discretionary and is gov- waived ies have no discretion to release informa- ernmental body’s failure with law, tion made confidential by the AG con- the procedural requirements of the PIA. tends, when a body fails to *6 When the failed to meet the deadline comply with the deadline in section 552.301(b), under section the information 552.301(b), confidentiality exceptions may presumed was public unless it could dem- be compelling reasons to withhold informa- onstrate a compelling reason to withhold if tion the body shows that 552.301(b), §§ the information. See id. the information falls within the exception. 552.107(1) .302. Because section cannot hand, reasons,
On the other the AG reason, constitute a compelling the exceptions that do not use the terms confi- merely cannot assert attorney-client the confidentiality, dential or including section privilege but must demonstrate an inde- 552.107(1), are discretionary and can be pendent compelling reason to withhold the by waived failure to with the pro- so, information. Having failed to do the requirements See, cedural of the PIA. City has exception waived the under sec- 552.103, .104, .105, §§ e.g., .106, .107; 552.107(1) id. tion and must disclose the infor- § see also id. 552.007 (providing that PIA mation.2 basis, long
2. The position AG has taken the rejects that a On City’s argu- the AG compelling reason exists when the informa- policy supporting attorney- ment that the expressly by tion is made confidential law or that, privilege client is a reason or implicate when disclosure would the interests alternative, in the the avoidance of harm to See, party. e.g., of a third Att’y Tex. Gen. City’s bargaining position in a multimil- OR2002-676; Att’y Tex. Gen. OR1994-630. 30, 1993, Leg., Apr. PIA. See Act of 73d attorney-client that the arguing In R.S., 268, 1, 552.107, Tex. only under sec ch. sec. be asserted privilege 600, 583, Act 552.107(1), by not under section Laws amended Gen. R.S., 1035, 29, 1995, solely prior Leg., on at 74th ch. 552.101, May relies the AG See, 552.107, e.g., 7,§ Tex. Tex. Gen. Laws opinions. sec. torney general’s (acknowledging 5127, Thus, OR2002-676 the existence of the Atty. Gen. 5131. 1990, AG’s office construed attorney-client prior exception for incorpo 552.101 to preclude to section not predecessor under section 552.107 did Atty. attorney-client privilege); rate that the supreme court’s statement same Although opinions of Gen. OR1990-575. information falls within section 552.101. general may persuasive, be attorney of the su While this statement binding appeals. on courts of they are not not preme Garland was (Tex. 582, Smith, In re case, necessary to the determination 2011). the AG has consis opinions, In its precedential such dictum has value when it that “information consid tently concluded judicial dictum. See Track is classified as law, either constitu ered confidential Marine, Ogle, er L.P. v. No.14-00-00230 tional, by judicial decision” statutory, or 1588115, *4, CV, 2000 2000 Tex. WL refers to law out under section 552.101 (Tex.App.-Hous LEXIS at *14 App. not include infor side the PIA but does 26, 2000, pet.) ton Oct. no [14th Dist.] attorney-client that falls within the mation (mem. publication). op., designated not attorney do not find the privilege. We straightforward this statement of We find of section 552.101 general’s construction supreme reading court’s of section case in Although there is no persuasive. persuasive, guides and it therefore 552.101 squarely pre has been which this issue us to conclude that sented, supreme court in Gar may be asserted under section privilege agency whether the PIA’s land considered appellate intermediate 552.101. “As an incorporates exception memorandum court, we are not free to mold Texas law as process exempted deliberative Supplies, we see fit....” Petco Animal at issue. See S.W.3d at memorandum Schuster, Inc. v. section 552.111 of (applying 359-60 App.-Austin pet.). Judicial re PIA). footnote, the explanatory In an leave it to the compels straint us to su stated, “Section 552.101 of supreme court modify prior court to its preme, reverse exempts Information Act the Texas Public and conclusions. Lubbock statements confidential information considered *7 Bonds, Cnty. v. Trammel’s Lubbock Bail law, falling under including information (Tex.2002) (only su Id. at 360 attorney-client privilege.” the modify court reevaluate and preme added).3 At the time the (emphasis n.5 decisions). prior court made this remark concern supreme Further, City Georgetown, in ing application the of section 552.107 to In re of information, (Tex.2001), supreme the court’s attorney-client privilege sec S.W.3d 552.107(1) had been added to the discussion of what the terms “law” and (stating long-term compel- pet.) "the transaction is a -FortWorth ‘infor lion-dollar ling by reason. mation considered to be confidential law’ provision certain catch-all of section 552.101 Appeals Worth Court of 3. The Fort has governed by ly the attor includes reached the same conclusion. See Hart v. Gossum, ney-client privilege”). (Tex.App. 963 n. the law” informs our deci and Texas Rules of Evidence are encompass “other ‘oth case, supreme In court was that the law5 within meaning sion. er the of section section 552.022 of upon to construe called expert’s 552.022” and that report the at provides the PIA. Section 552.022 was ‘“expressly issue made confidential’ categories of information are public certain procedure.” under the rules of civil Id. at required “not disclosure un supreme analysis 336. The court’s chapter made confidential under this less meaning of in construing “law” the term law,” other law other than the meaning “other law” in Georgetown In re of 552.022(a) Code PIA. See Tex. Gov’t supports analogous further the conclusion (creating information common category of here that the Rules Evidence and the public” ly “super- referred to as “core Disciplinary Rules of Professional Conduct information); City Georgetown, re public” In are “law” outside the PIA within the specific The issue 331. 5 meaning of section To 552.101. hold oth whether the before court was term make “regular” erwise would seem to in product law” includes work and “other formation, such as that consulting expert privileges contained attorney-client privilege, more accessible In the Rules of Civil Procedure. See id. “superpublic” than information under sec law,” supreme construing “other court tion 552.022. Tex. See Gov’t Code meaning discussed the of “law” and also § 552.022. procedure: rules of evidence and are distinguishes We aware that the AG The term is not limited to “other law” attorney-client privilege on the basis commonly other statutes. The under- “[ujnlike that, most other situations where stood includes meaning “law” by information is made confidential some decisions and promulgated rules [PIA], source law outside the the attor- judiciary, procedure such as rules and ney-client privilege, incorporated as into evidence. know of no Although we case 552.107(1)” be can waived. in which had this Court has occasion to Atty. Gen. OR1994-630. In other construe the term “other when law” words, the AG contends that because the statute, used in a we have said that our waived, attorney-client privilege can be it procedure rules of “have the same force mandatory fall Indeed, exception. cannot under a and effect as statutes.” before However, persuaded we are not that the adopted proce- this Court rules of civil evidence, attorney-client privilege may that the gov- dure and much of the law fact erning procedures court evidence and waived is determinative whether at- be was In torney-client contained in statutes. within information falls Legislature when the statute “con- of section As we purview 552.101. have relinquished” upon ferred to this noted, already supreme has con- power, full it rule-making thereby Court that “law” the PIA cluded outside includes acknowledged authority our to make the Rules of and the Evidence Rules of law governing procedure civil and evi- expressly Procedure and has stated Civil procedure dence. The law of civil attorney-client privilege falls *8 any evidence did not become less “law” purview within the of section 552.101— simply from legislated because it moved notwithstanding nature. its waivable See judicially promulgated statutes to rules. City re 53 Georgetown, In S.W.3d at of (citations omitted). 336; Garland, 22 at S.W.3d at 360 Id. 332 and footnotes of noting n.5. It is also worth that the AG’s supreme The court went on to conclude argument subject attorney- that Texas of Civil Procedure would “[t]he Rules 588 PIA not confidential on basis asserted under to waiver under the privilege
client
552.101).
file' a
within ten
to
In
agree.
for failure
section
We
re
Rules of Evidence and
whereas the
days,
Smith,
portance mitted information falls within the attor for developing safeguards that allow ney-client privilege and that the has See, e.g., cure of inadvertent disclosure. privilege not otherwise waived the under 199.3(d) (permitting party P. Tex.R. Civ. Evidence, of of Rules Rules Civil “clawback” or retrieve materials inad- to Procedure, or Disciplinary Rules of and maintain vertently produced privi- Tex. R. Evid. Professional Conduct. See that lege); (providing Tex.R. Evid. 512 (establishing privilege), 503 is not defeated disclosure er- privilege roneously compelled op- or made without (providing privilege by 511 for waiver of light In portunity privilege). to claim of voluntary disclosure), (providing 512 language of section 552.101 ex- plain privilege is not defeated disclosure er empting information considered confiden- roneously compelled or made op without statutory law tial under constitutional portunity privilege); to claim Tex. R. Civ. supreme decision and the 193.3(d) (permitting party P. to “clawback” guidance application court’s on the of sec- inadvertently pro or retrieve materials 552.101, tion we conclude that section privilege); duced and maintain Tex. Disci informa- exempts 552.101 from disclosure 1.05(a) plinary Rules Prof'l R. Conduct protected by attorney- tion that is (defining “confidential information” to in privilege. client See Tex. Gov’t Code privileged clude 552.101; § Georgetown, In re 53 of (b) 503), Rule of (generally pro Evidence 336; Garland, at S.W.3d S.W.3d attorney hibiting knowingly from disclos at n. 5. information). ing client confidential Be- Compelling Reason shown, cause the has and the AG has contested, body
Once a not that the informa fails to submitted 552.301(b) meet the deadline under section subject attorney-client privi is to the requesting attorney general’s opin lege, it therefore falls within section ion, presumed public the information is 552.101, subject and is not to disclosure. compelling unless there is a reason to See City Georgetown, In re 53 S.W.3d at withhold it. See Tex. Gov’t Code Garland, 336; City n. § 552.302. The AG has concluded that 5; Cnty. Doe v. Tarrant Dist. Attor cf. provides compelling section 551.101 a rea ney’s Office, son to presumption open overcome the App.-Fort pet.) (proof Worth following governmental body’s ness fail governmental body prohibited by is statute ure to meet deadline disclosing information and that infor 552.301(b)if governmental body estab exempt mation is therefore under section lishes that the information falls within that reason). 552.101is compelling See, exception. e.g., Att’y Gen. This conclusion with the is consistent (stating OR2009-12873 section 552.101 can policies attorney-client privilege behind the provide reason in to withhold PIA. Notwithstanding goal and the formation, attorney’s considering district the PIA to providing govern- full access arguments under section 552.101 even information, mental Tex. Gov’t though he see Code failed with section 552.301(b), 552.001, concluding but in- excepts information was the Act nonetheless
589 covered the attorney-client “compelling formation reason” to withhold the infor- privileges the “oldest of for con- privilege, Abbott, mation.4 See Dallas v. 279 of 806, fidential communications known to the S.W.3d 811-12 (Tex.App.-Amarillo law,” 2007), v. Upjohn common see Co. United rev’d on grounds, other States, 383, 389, 677, (Tex.2010). U.S. S.Ct. 66 380 (1981). privi- L.Ed.2d 584 And while the Nor do we believe that including attor- waived, lege voluntarily can be as the trial ney-client information under observed, our jurisprudence has seen 552.101 eliminates the incentive for a gov- fit develop procedural safeguards to body ernmental to an attorney against party circumstances which a general’s opinion. Reading section 552.101 inadvertently attorney-client waives the to attorney-client include information cre- privilege simply by missing a deadline. ates no more a disincentive to with See, 193.3(d); e.g., Tex. R. P. Civ. In re the PIA than already exists regard with to London, Lloyd’s Certain Underwriters any other excepted under sec- 891, (Tex.App.-Beaumont tion 552.101. In all instances under sec- curiam) (under orig. proceeding) (per 552.101, governmental body needs to 193.3(d), Rule who party diligently fails to establish that the information at issue falls screen producing documents before them section, i.e., within the that the information privilege does not waive claim of and rule is not subject to disclosure. It also needs was intended to restrict waiver in variety to rulings seek so that it can assert addi- might of situations that arise from inadver- exceptions tional in the event the AG con- documents) privileged tent disclosure of cludes section 552.101 apply does not (citing 193.3(d)); comment to Rule In re so that it can avoid the possibility of de- L.P., Estate-McKinney JDN Real fending a mandamus action. See Tex. 921 (Tex.App.-Dallas Gov’t Code 552.321 (providing that re- (evidence orig. proceeding) party questor or AG seek mandamus to diligently failed to screen documents was disclosure). compel not evidence that it intended to waive at- torney-client privilege or evidence of un- Because we conclude that attorney-client delay due in asserting “clawback” under information falls purview within the of sec- 193.3(d)); Hicks, Rule In re 252 S.W.3d tion 552.101 and that the City has demon- 790, 794-95 (Tex.App.-Houston strated a compelling [14th reason to withhold 2008, orig. proceeding) (assignment Dist.] the information establishing that it is rights and claims that did not expressly attorney-client privilege attorney-client waive privilege did not act is therefore by section as waiver privilege). 552.101, Even the lower we overrule the AG’s first issue. Dallas, court in City on which the AG We therefore do not reach the AG’s second relies, heavy issue, expressly did not find that in which attorney’s it seeks fees as city had waived attorney-client substantially prevailing party in the privilege, only that it had not shown a event we reverse the trial court. Dallas,
4. The
grounds,
AG relies on
in which rev’d on other
we
Dissenting Opinion by Chief Justice
Jones OPINION
DISSENTING CAMPOS, Appellant, Samuel Jones, Chief Justice J. Woodfin v. respectfully I dissent. AND PROPERTY CASUALTY TEXAS of the well-reasoned agree I with INSURANCE GUARANTY ASSOCIA Appeals the Amarillo Court Indemni TION for National Reliance Abbott, 279 Dallas v. Insurer, ty Company, Impaired Appel d 2007), rev’ on other App.-Amarillo lee. (Tex.2010).
grounds, 304 S.W.3d There, mere fact the court held that the No. 08-13-00289-CV attor requested materials constitute Texas, Appeals Court enough, by is not ney-client communication El Paso. itself, “compelling a rea to demonstrate disclosure under section son” to withhold December of the Government Code. Id. 552.302 case, present 810-12. In the whatsoever that a
presented no evidence of the materials would harm
disclosure only vague, speculative parties
third
evidence that itself could be purposes,
harmed. For all intents and exclusively relied on fact arguably attorney-
materials fell within the I do not that is privilege.
client believe I
enough. Accordingly, do not believe conclusively met its burden of show
ing “compelling reason” for nondisclo
sure. majority
The relies on a statement con in City tained in a footnote Garland v. News, Morning
Dallas (Tex.2000). only But not was the
n. 5 (as dictum the ma
referenced statement concedes),
jority plurali it was dictum in a
ty Plurality opinions have virtual opinion.
ly University value. precedential York, Tex. Med. Branch at Galveston v. (Tex.1994). 175, 176-77