Nancy KESSLING, Appellant v. FRIENDSWOOD INDEPENDENT SCHOOL DISTRICT and Patricia Hanks, Appellees.
No. 14-07-01063-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Nov. 3, 2009.
302 S.W.3d 373
Jeffrey L. Rogers, Clay T. Grover, Houston, TX, for appellees.
Panel consists of Chief Justice HEDGES and Justices YATES and FROST.
OPINION
ADELE HEDGES, Chief Justice.
Nancy Kessling sued appellees, Friendswood Independent School District (“F.I.S.D.“) and its superintendent, Patricia Hanks, for various alleged violations of the Texas Open Meetings Act (“TOMA“), Texas Public Information Act (“TPIA“), and Texas Education Code. In two issues on appeal, Kessling contends that the trial court erred in (1) granting summary judgment against her TOMA and TPIA claims, and (2) dismissing her Education Code claims for want of jurisdiction. In a cross-
I. Background
Kessling styles herself as a “public watchdog,” having followed the actions of the F.I.S.D. school board for over twenty years and “routinely” using TPIA requests to monitor its activities. Kessling asserts that she lives in the area served by F.I.S.D., that she pays taxes to F.I.S.D., and that her children attended F.I.S.D. schools. On August 9, 2006, she filed the present lawsuit, seeking injunctions and declarations concerning alleged violations of the TOMA, TPIA, and Education Code. Kessling‘s original petition named only superintendent Hanks as a defendant; FISD was added by later amended petition. Specifically, in her third amended petition, the live petition at the time of judgment,1 Kessling alleged that appellees violated the TOMA by (1) deliberating illegally after adjournment, (2) failing to post proper notice of topics to be considered in executive sessions, (3) discussing matters not on the agenda in executive sessions, (4) permitting employees to attend executive sessions, and (5) failing to keep proper minutes and electronic recordings of meetings. She further alleged that appellees violated the TPIA by refusing to either provide certain requested information or request an attorney general‘s opinion, which would authorize such refusal, and by untimely or otherwise inappropriately fulfilling other requests. She also alleged that appellees violated the Education Code by failing to follow certain accounting practices and procedures and file certain related reports required under the code. Kessling sought declaratory judgment regarding the alleged violations and requested mandamus and injunctive relief regarding certain past violations and to prevent certain of the violations from reoccurring.
In response to Kessling‘s original petition, styled “Plaintiff‘s Original Application for Writ of Mandamus and Petition for Permanent Injunction,” Hanks answered, making general and special denials of the allegations, raising various affirmative defenses, and requesting attorney‘s fees under the Education Code for the filing of a frivolous lawsuit. Hanks also filed special exceptions, claiming that in the petition, Kessling failed to (1) give fair notice of the claims asserted, (2) demonstrate standing regarding certain claims, (3) identify specific acts claimed to be violations or that Kessling was seeking to enjoin, and (4) state a cause of action.2 Although Kessling filed several supplemental petitions, the trial court granted the special exceptions and ordered Kessling to replead within 30 days to cure the pleading defects.
After Kessling filed a first amended petition, which, inter alia, added F.I.S.D. as a defendant, and then a second amended petition, appellees filed a combined motion for summary judgment and plea to the jurisdiction. In the summary judgment portion of this pleading, appellees contend-
In her response to the motion and the plea, Kessling maintained that her TOMA claims were not rendered moot by the fact that alleged violations had occurred in the past and that it was thus not improper for a court to declare that prior actions violated the TOMA. She further argued that her allegations established a “pattern and practice” of TOMA violations; thus, mandamus and injunctive relief would be appropriate to prevent future violations. Regarding her TPIA claims, Kessling asserted that according to established case-law, the TPIA permits private citizens to bring direct action against governmental bodies to enforce TPIA provisions. With regard to appellees’ plea to the jurisdiction, Kessling asserted that she had standing and the trial court had jurisdiction over her claims because members of the public have a right to seek (1) mandamus relief to compel a public official to perform a ministerial duty, and (2) declaratory relief against state officials who act without legal or statutory authority. She argued that the duties at issue in her Education Code claims, namely compliance with certain statutory accounting policies and procedures, were ministerial acts requiring no discretion, and thus, governmental immunity was not applicable. She further contended that permitting F.I.S.D. to avoid its Education Code accounting duties would effectively stymie public monitoring of its financial activities because under the TPIA, a government entity cannot be required to create documents but can be required only to produce documents it has already created. As discussed above, with the trial court‘s permission, Kessling subsequently filed her third amended petition.
The trial court granted the motion for summary judgment and plea to the jurisdiction without specifying the bases therefor. Appellees then moved for attorney‘s fees. The trial court thereafter filed another order, again stating that the summary judgment motion and jurisdictional plea were granted and that all of Kessling‘s claims were dismissed with prejudice. Although the order does not mention appellees’ motion for fees, the trial court expressly denied that motion during an oral hearing.
II. Kessling‘s Issues
As stated, in two issues, Kessling contends that the trial court erred in granting summary judgment against her TOMA and TPIA claims and in dismissing her Education Code claims for want of jurisdiction.
In her first issue, Kessling contends that the trial court erred in granting summary judgment against her TOMA and TPIA claims. She asserts that the trial court‘s legal conclusions were in error and that genuine issues of material fact exist precluding summary judgment. We analyze the grant of a traditional motion for summary judgment under well-established standards of review. See generally
1. TOMA Claims
The Texas Legislature enacted the TOMA in 1967 to ensure “that the public has the opportunity to be informed concerning the transactions of public business.” Acker v. Tex. Water Comm‘n, 790 S.W.2d 299, 300 (Tex. 1990) (quoting Act of May 23, 1967, 60th Leg., R.S., ch. 271, § 7, 1967 Tex. Gen. Laws 597, 598). Under the TOMA, all meetings of governmental bodies must be kept open to the public unless the law expressly authorizes a closed session. See
In their motion for summary judgment, appellees argued that Kessling‘s TOMA claims were moot to the extent that they related to meetings in the past and requested an impermissible advisory opinion to the extent that they related to future meetings. Both arguments essentially question whether Kessling has raised a justiciable controversy. The first argument asserts that claims concerning past meetings are moot, and the latter argument questions whether claims concerning future meetings have ripened. “To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Whether a justiciable controversy exists, and thus whether claims have become moot on the one hand and whether they have ripened on the other, is a threshold question that implicates subject-matter jurisdiction. See, e.g.,
Appellees base their justiciability arguments on the Austin Court of Appeals’ analysis in Cornyn v. City of Garland, 994 S.W.2d 258 (Tex.App.-Austin 1999, no pet.). In Cornyn, the trial court denied by way of summary judgment the complainant‘s requests for a declaratory judgment that prior city counsel meeting notices were deficient and a permanent injunction and writ of mandamus requiring full TOMA compliance in the future. 994 S.W.2d at 266. The Austin court affirmed, holding that the declaratory judgment claim was moot and that the request for injunction and for writ of mandamus required an advisory opinion (i.e., was not yet ripe for decision). Id. at 267.4 Other courts, however, including this one, have arrived at different conclusions from those of the Cornyn court regarding the mootness of prior TOMA violations and the ripeness of threatened future violations.
a. Future Meetings
For reasons which will become apparent, we begin by addressing the claims concerning threatened future violations. In Harris County Emergency Service District No. 1 v. Harris County Emergency Corps., we upheld an injunction preventing the appellant governmental entity from holding certain types of meetings in the future without proper notice. 999 S.W.2d 163, 171 (Tex.App.-Houston [14th Dist.] 1999, no pet.). As authority, we cited
To avoid the justiciability challenges, Kessling is only required to plead sufficient facts to support jurisdiction. See City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008). Kessling‘s pleadings are sufficient to make a claim under Harris County Emergency in that she explicitly alleged a pattern and practice of certain kinds of TOMA violations and requested injunctive and mandamus relief to prevent future violations of the same nature. Consequently, the trial court erred in granting summary judgment against Kessling‘s claims concerning future meeting notices.5
b. Past Meetings
We now turn to Kessling‘s claims with regards to past violations. In City of Farmers Branch v. Ramos, 235 S.W.3d 462 (Tex.App.-Dallas 2007, no pet.), the Dallas Court of Appeals also deviated from the Cornyn court‘s conclusions. In Ramos, the complainant alleged that the city council had violated the TOMA on specific instances when it passed certain ordi-
We agree with the Ramos court that a TOMA violation is not rendered moot simply because it occurred in the past but remains a live controversy insofar as it supports a future remedy. Kessling‘s claims of past TOMA violations and threatened future violations are, in fact, inextricably intertwined. The remedy that she requests based on past violations is the prohibition (by mandamus or injunction) of future violations. She attempts to prove the likelihood of those future violations by demonstrating a pattern and practice of violations in the past. Thus, following Harris County Emergency and Ramos, the controversy regarding past violations has not become moot, and the controversy regarding future violations is ripe. Consequently, the trial court erred in granting summary judgment against Kessling‘s TOMA claims on these bases. We sustain Kessling‘s first issue. It is important to note, however, that our resolution of this issue does not mean that Kessling ultimately has valid TOMA claims or that she has demonstrated a pattern and practice of TOMA violations. These questions were not raised by appellees’ motion. We hold only that Kessling has sufficiently pleaded her TOMA claims.
2. TPIA Claims
In 1973, the Texas Legislature passed what is now known as the TPIA. See Act of June 14, 1973, 63rd Leg., R.S., ch. 424, §§ 1, 14(d), 1973 Tex. Gen. Laws 1112, 1118; City of Garland v. Dallas Morning News, 22 S.W.3d 351, 355 (Tex. 2000). The purpose of the TPIA is “to provide public access ‘at all times to complete information about the affairs of government and the official acts of public officials and employees.‘” City of Garland, 22 S.W.3d at 355-56 (quoting
As stated above, in her petition, Kessling alleged that appellees had violated the TPIA by refusing to either provide particular information or request an attorney general‘s opinion on the matter. She further charged that appellees had failed to timely or properly provide other requested information. As relief, Kessling requested a declaratory judgment that appellees had violated the TPIA, as well as injunctive relief and a writ of mandamus requiring appellees to comply with TPIA provisions and timely disclose the requested information. In their motion, appellees raised two grounds for summary judgment on Kessling‘s TPIA claims. First, they argued that under TPIA section 552.3215, Kessling was not permitted to file her claims seeking declaratory judgment and injunctive relief directly with a court but first had to file a complaint with the local district attorney or county attorney.
a. Section 552.3215
As a matter of statutory interpretation, we consider the question of whether section 552.3215 prevents Kessling from filing her declaratory judgment and injunctive claims directly with a court under a de novo standard. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). When a statute‘s language is clear and unambiguous, we need not resort to rules of construction or other extrinsic aids. Id. at 626. In enacting TPIA section 552.3215, the Texas Legislature established a scheme through which TPIA complainants can file a complaint with a district attorney or county attorney, who then must assess whether a violation has occurred and determine whether to pursue the matter by first notifying the governmental entity and, if not remedied, then filing an action for declaratory judgment or injunctive relief.
Most significantly for our purposes, the final subsection of the provision, subsection (k), states that “[a]n action authorized by this section is in addition to any other civil, administrative, or criminal action provided by this chapter or another law.”
b. Justiciability
Next, we turn to appellees’ justiciability contentions, i.e., that Kessling‘s TPIA claims regarding past requests had all become moot and that her claims regarding potential future requests were not yet ripe. As discussed above, “[t]o constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.” Bonham State Bank, 907 S.W.2d at 467. A case is considered moot when either a controversy has ceased to exist or the parties lack a legally cognizable interest, Hallman, 159 S.W.3d at 642, and a controversy does not ripen until an injury has occurred or is likely to occur, Patterson, 971 S.W.2d at 442. We begin by noting that Kessling‘s TPIA violation claims can be grouped into two categories: (1) claims that certain requests have gone unfulfilled, and (2) claims that although other requests have been fulfilled, something improper occurred regarding how they were fulfilled.8
Regarding her claims concerning requests that were ultimately fulfilled, Kessling does not argue in her briefing to this court that she is entitled to seek mandamus or injunctive relief, as she did in connection with her TOMA claims, instructing appellees to follow the law in the future. She neither argues that TPIA allows for such relief nor seeks any other injunctive or other affirmative relief as her requests have been fulfilled. Instead, with regard to her fulfilled requests, she appears to seek only a declaration that violations have occurred in the past in connection with those requests. In the absence of a request for injunctive or other affirmative relief, a declaration that past violations have occurred would have no impact on the rights of the parties. See Speer v. Presbyterian Children‘s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993) (citing McKie v. Bullock, 491 S.W.2d 659, 660 (Tex. 1973), for the proposition that “when the action sought to be enjoined is accomplished and ‘suitable coercive relief becomes impossible, it is improper to grant declaratory relief‘“); City of Shoreacres v. Tex. Comm‘n of Envtl. Quality, 166 S.W.3d 825, 838-39 (Tex.App.-Austin 2005, no pet.) (holding that party‘s request for declaratory judgment did not change the fact that no justiciable controversy existed because the court could grant no relief having a practical legal effect on the controversy). Kessling‘s claims regarding fulfilled TPIA requests are therefore moot. Consequently, the trial court did not err in dismissing these claims.9
B. Plea to Jurisdiction
In her second issue, Kessling contends that the trial court erred in granting appellees’ plea to the jurisdiction and, thus, in dismissing her Education Code claims for want of jurisdiction. We review a trial court‘s grant of a plea to the jurisdiction under a de novo standard. Lopez, 259 S.W.3d at 150. The focus of such review is on “whether facts have been alleged that affirmatively demonstrate jurisdiction in the trial court.” Id. In making this determination, we construe pleadings liberally in favor of the plaintiff. Id. Furthermore, we may not assess the merit of the plaintiff‘s claims. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If a fact question regarding jurisdiction exists, the plea should not have been granted; however, if pleadings or evidence affirmatively negate a jurisdictional fact, the plea may have been properly granted even in the absence of an opportunity to amend. See Lopez, 259 S.W.3d at 150. When a plea to the jurisdiction challenges the plaintiff‘s pleadings and not the existence of jurisdictional facts, we assume the facts pleaded to be true. See Westbrook v. Penley, 231 S.W.3d 389, 405 (Tex. 2007).
In her petition, Kessling claimed that appellees violated the Education Code by failing to follow certain accounting practices and failing to generate certain reports required under the code and associated administrative rules. See
We begin by addressing the standing grounds in the plea to the jurisdiction. A party seeking affirmative relief must have standing to invoke a court‘s subject matter jurisdiction. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). “For standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical.” Id. at 304-05. If the plaintiff does not allege real and personal injury to himself or herself, it is irrelevant whether the defendant acted improperly. See id. at 305.
Appellees are correct, and Kessling does not dispute, that the Education Code does not contain any provision authorizing a private right of action for complaints concerning a school district‘s failure to follow required accounting practices or generate required financial reports. To the contrary, the provisions Kessling relies upon give oversight on these matters to other governmental actors. See
Kessling instead argues that she has standing to compel, through mandamus, a public official to perform a ministerial duty. See Blum v. Lanier, 997 S.W.2d 259, 263 (Tex. 1999).11 She further contends that she has standing to “seek declaratory relief against state officials who allegedly act without legal or statutory authority.” See Tex. Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Such arguments, however, do not obviate the prerequisite for standing of a particularized injury. See Inman, 252 S.W.3d at 304-05. Indeed, the Texas Supreme Court has expressly noted that in order to have standing for a declaratory judgment claim, a member of the public must allege “a particularized injury distinct from that suffered by the general public.” Bland I.S.D. v. Blue, 34 S.W.3d 547, 555-56 (Tex. 2000).12 Kessling contends that appellees’ failure to follow mandatory financial guidelines and prepare mandatory financial reports results in her failure to: (1) get her TPIA requests for those reports fulfilled, and (2) properly review FISD‘s financial activities by making productive TPIA requests. In other words, Kessling maintains that appellees’ refusal to follow the dictates of the Education Code defeats her right to access to information under the
III. Cross-Appeal for Attorney‘s Fees
In the sole issue in their cross-appeal, appellees/cross-appellants contend that the trial court erred in declining to award them attorney‘s fees either under the UDJA or the Education Code. Under the UDJA, a trial court may award costs and reasonable and necessary attorney‘s fees as are equitable and just.
Because Kessling was wholly successful on her appeal of the summary judgment against her TOMA claims and at least partially successful on her TPIA claims, we will consider only her Education Code claims in addressing appellees’ cross-appeal. While Kessling‘s Education Code claims are ultimately meritless, we cannot say that they were frivolous, unreasonable, and without foundation. The arguments were novel and were grounded in statutory and case law, even though, in the end, they were incorrect. Accordingly, the trial court did not abuse its discretion in declining to award attorney‘s fees under the Education Code. See
IV. Conclusion
In summary, the trial court erred in granting summary judgment against Kessling‘s TOMA claims and against her claims of unfulfilled TPIA requests. The trial court properly granted judgment against Kessling‘s claims concerning TPIA re-
FROST, J., dissenting.
KEM THOMPSON FROST, Justice, dissenting.
A concerned citizen filed suit against a school district and its superintendent alleging, among other things, various past violations of the Texas Open Meetings Act and the Texas Public Information Act. The citizen alleged that these violations showed a pattern and practice by the school district of violating these two statutes. As to both statutes, the citizen sought a declaratory judgment regarding the past violations that allegedly show a pattern and practice, and the citizen also sought mandamus or injunctive relief requiring the school district to comply with these two statutes in the future. The trial court granted the defendants’ plea to the jurisdiction and motion for summary judgment and dismissed all of the citizen‘s claims. In her opening brief on appeal, the citizen asserts that she seeks a declaratory judgment regarding the past violations of these two statutes, allegedly showing a pattern and practice, and that she seeks mandamus or injunctive relief requiring the school district to comply with these two statutes in the future.
The majority correctly concludes that the citizen‘s claims for declaratory relief as to the Texas Open Meetings Act are not moot and that in her request for mandamus or injunctive relief as to this statute the citizen does not seek an advisory opinion. Likewise, the majority correctly concludes that the trial court erred in dismissing the citizen‘s Texas Public Information Act claims to the extent they sought to compel disclosure as to unfulfilled requests. However, as to the citizen‘s request for declaratory relief regarding requests that were fulfilled in the past, although in a manner that allegedly violated the Texas Public Information Act, the majority incorrectly concludes that these claims are moot because, on appeal, the citizen does not assert that she is seeking declaratory relief to show a pattern and practice that would form a basis for mandamus or injunctive relief. Contrary to the majority‘s conclusion, in her appellant‘s brief, the citizen does state that she is asserting similar declaratory, mandamus, and injunctive relief under both the Texas Open Meetings Act and the Texas Public Information Act. Therefore, this court should hold that none of the citizen‘s claims for declaratory relief regarding violations of the Texas Public Information Act are moot and that in her request for mandamus or injunctive relief regarding this statute the citizen does not seek an advisory opinion. Because it does not, I respectfully dissent.
Allegations in the Citizen‘s Live Petition
In her live petition, appellant/plaintiff Nancy Kessling asserts, among other things, similar allegations and requests for relief regarding the Texas Open Meetings Act (“Meetings Act“) and the Texas Public Information Act (“Information Act“). In suing defendants/appellees Friendswood Independent School District (“School District“) and its superintendent Patricia Hanks (collectively the “School District Parties“), Kessling made the following allegations:
The [School District] has a pattern and practice of violating the notice and open
meeting provisions of the [Meetings Act], as evidenced by the fact that [the School District] has continued to violate the [Meetings Act] prior to and during the pendency of this suit. Kessling seeks a declaratory judgment under the [Uniform Declaratory Judgments Act] that [the School District] has violated the [Meetings Act] through its past actions. Kessling seeks injunctive relief to prevent [the School District] from continuing to violate the [Meetings Act] through these actions. ...
Plaintiff Kessling seeks a declaratory judgment regarding each of these violations, and a writ of mandamus and/or injunctive relief to require that the [School District] comply with the procedural requirements of the [Meetings Act] ...
...
The [School District] has demonstrated a pattern and practice of failing and refusing to either release public information or to request attorney general decisions to authorize withholding the information. The [School District] has demonstrated a pattern and practice of refusing to release information listed in the [Information Act] as information that should be released without question and without delay.
TEX. GOV‘T CODE ANN. § 552.022 . The [School District] has demonstrated a pattern and practice of delaying the release of information for an inordinately long time, sometimes months, failing to comply with the timeliness requirements of the [Information Act]. Kessling seeks a declaratory judgment under the Uniform Declaratory Judgment [sic] Act that [the School District] has violated the [Information Act] for each of the alleged incidents that constitute a part of the pattern and practice....
Plaintiff Kessling seeks a declaratory judgment regarding each of these violations, and a writ of mandamus and/or injunctive relief to require that the [School District] comply with the procedural requirements of the [Information Act] and to compel disclosure of all requested information ...
...
Plaintiff respectfully requests that, upon trial of this case, the Court:
1) find that Defendants have violated the requirements of the [Meetings Act] and order that the Defendants comply with the Act ...
2) find that Defendants have violated the requirements of the [Information Act] and order that the Defendants comply with the procedural requirements of the Act ...
As to both the Meetings Act and the Information Act, Kessling sought a declaratory judgment as to past violations of these statutes, which she alleged constituted a pattern and practice. Then, based on these past violations, Kessling sought mandamus or injunctive relief requiring the School District to comply with these two statutes in the future.
The School District Parties’ Motion For Summary Judgment and Plea to the Jurisdiction
The trial court granted the School District Parties’ “Motion for Summary Judgment and Plea to the Jurisdiction.” As to Kessling‘s Meetings Act and the Information Act claims, the School District Parties did not specify whether they were asserting a plea to the jurisdiction or a motion for summary judgment. As to both the Meetings Act and the Information Act claims, the School District Parties asserted that the trial court lacked jurisdiction based on mootness and Kessling‘s alleged
The Citizen‘s Opening Brief on Appeal
In pertinent part, Kessling makes the following statements in her opening brief on appeal:
Kessling seeks a declaration that [the School District] has violated the [Information Act], [the Meetings Act], and Education Code in a specific manner, and an order requiring that [the School District] comply with these laws in the future to avoid these violations ...
...
Kessling filed this action, alleging a pattern and practice of [Meetings Act], [Information Act], and Education Code violations ...
...
Kessling asserted that her public information requests remain unfulfilled to this day, and she sought both mandamus and declaratory relief to cure [the School District‘s] past and ongoing violations of the [Information Act] ...
In paragraph 6.17 of her petition, Kessling seeks a declaratory judgment on each of the alleged violations and a writ of mandamus and/or an injunction to “require that the [School District] comply with the procedural requirements of the [Information Act] and to compel disclosure of all requested information.” Kessling sought the same relief in her general prayer. (emphasis in original). The Supreme Court of Texas has stressed that appellate courts must construe an appellant‘s brief “reasonably, yet liberally” so as to “reach the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); see also Ditta v. Conte, 298 S.W.3d. 187, 189-90 (Tex. 2009) (construing petitioner‘s brief liberally to contain argument that it did not expressly contain because it contained similar and related arguments). Under this construction, Kessling, in her opening brief, asserts that she seeks declaratory relief as to past violations of the Information Act, including violations of the procedural requirements of the statute in cases in which the School District already has provided the requested information.1 Kessling also asserts in her opening brief that, based on these past violations, she seeks mandamus or declaratory relief to order the School District to comply with the Information Act in the future. Therefore, the majority incorrectly concludes that Kessling has failed to sufficiently brief that she seeks declaratory relief as to past procedural violations of the Information Act and that she seeks mandamus or injunctive relief to prevent future violations of this statute.2 See ante at p. 384.
Because Kessling adequately briefed the relief that she sought regarding the past procedural violations of the Information Act, this court should conclude, as it does for the claims regarding the Meetings Act, that Kessling‘s declaratory judgment claims are not moot and her claims for injunctive or mandamus relief do not contain a request for an advisory opinion. In adjudicating the jurisdictional challenges to the Meetings Act claims, the majority concludes that the trial court has jurisdiction because Kessling seeks to use the alleged pattern and practice of past violations as a basis for showing her entitlement to mandamus or injunctive relief as to future violations. See ante at p. 381. As to the Meetings Act claims, the majority correctly notes that a decision that the claims are not moot or unripe does not speak to the merits of these claims. See ante at p. 381; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) (stating that courts may not reach the merits of the parties’ claims in deciding jurisdictional issues); In re Sullivan, 157 S.W.3d 911, 920 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding [mand. denied]) (refusing to consider arguments attacking the merits of the claims in deciding whether trial court clearly abused its discretion by denying plea to the jurisdiction). Instead of finding briefing waiver, the majority should apply the same analysis to the Information Act claims as to fulfilled requests that the majority applies to the Meetings Act claims.
However, in discussing the same jurisdictional issues as to the Information Act claims, the majority incorrectly states that the merits of these claims are at issue on appeal.3 The majority states that Kessling has not argued on appeal that the Information Act affords the mandamus or injunctive relief that she seeks. See ante at p. 384. The majority further asserts that Kessling has not briefed “the issue of whether the [Information Act] affords her the right to seek mandamus or injunctive relief instructing [the School District Parties] to follow the [Information Act] in the future.” Id. at p. 384, n. 9 (emphasis added). The majority concludes that Kessling has not argued on appeal that she is seeking mandamus or injunctive relief as to the fulfilled Information Act requests. See id. at p. 384-85. In addition, the majority suggests that, even if Kessling‘s appellate briefing were sufficient, this court would analyze the mootness and advisory-opinion issues differently as to the Information Act claims because of differences in the merits of those claims. See id. However, the relief Kessling seeks as to the alleged Information Act violations regarding fulfilled requests is substantially similar to the relief she seeks as to the alleged Meetings Act violations. Presuming for the sake of argument that Kessling‘s claims for mandamus or injunctive relief as to the alleged Meetings Act violations have merit but that, under the applicable statutes and equitable principles,
Therefore, this court should sustain the first issue in its entirety, reverse the trial court‘s judgment as to all of Kessling‘s claims regarding the Meetings Act and the Information Act, and remand for further proceedings. To the extent it does not do so, I respectfully dissent.