### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00735- CV

Texas State Board of Chiropractic Exam iners, Appellan t

v. Gr eg Abbott, At torney G eneral of the State of Texas, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0286 7, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

O P I N I O N

The Texas State Boa

rd of Chiroprac tic Ex aminers (“the Boa rd”) sued Gre g Abbott, Attorney Gene ral of the State of Texas, seeking a decla ration that cer

tain documents in the Boa rd’s
p o ssession are exempt from the disclosure require ments of the Texas Public I nformation Act (“PI A”)

. See Tex. Gov’t Code Ann. §§ 552.001-.353 (West 2012). The trial court rende red
summary judgme nt that the documents wer e not exempt, such that disclosure was require d. On
appea l, the Boa

rd challeng es that ruling as an incorre ct rea ding of the PI A. We will reve rse the trial court’s judg ment and re nder judg ment that the documents in question ar e exempt.

F ACTUAL AND P ROCEDURAL BACK GR OUND The Boa rd rec eived a reque st pursuant t o the PI A for cer tain chiropra ctic rec ords perta ining to the reque stor that wer e in the Boa rd’s possession. The rec ords soug ht wer e part of the Boa rd’s investiga tion file rela ting to its investiga

tion of a complaint about a chiropra ctor. See Tex.Occ

. Code Ann. § 201.205 (West 2012) (g ener al rules reg ardi n g in v e s tig ation of complaint filed with board)

. The Boa

rd withheld the medical rec ords on the g round that they wer e excepted from disclosure under PI A section 552.101, which provides that “[ i ] n formation is excepted from the require ments of Section 552.021 [that public information must be made ava ilable t o the publ ic] if it is information considere d to be confide ntial by law, either constitutional, statutory , or by judicial decision.” Tex. Gov’t Code Ann. § 552.101. The Boa rd asser ted that beca

use the medical rec ords

wer e contained in its investiga tion file, s ec tion 201.206 of the occupations code made them “c o n fi d en t i al by law.” See Tex. Occ

. Code Ann. § 201.206(a) (West 2012) (“The board’ s investiga tion files are confide ntial, privileg ed, and not subject to d i s co v er y , subpoena, or any

o t h er m ea n s of leg al compulsion for rele ase other than to the board or an employ ee or ag ent o f the boar d.”).
I n conjunction with its conclusion to withhold the rec ords, the Boa rd soug ht a decision from the Attorney Gene ral’s Open Records Division (“the ORD”) that the medical rec ords
at i s s ue fell within the confide ntiality exception in g overnme nt code section 552.101. See Tex. Gov’t C o d e An n . § 552.301 (g overnme ntal body that rec eives written reque st for information it wishes to withhold under section 552.101 must ask for decision from attorney g ener al about whether information is within that excepti on). The ORD’s letter decision noted that the rec ords at issue wer e g ener ally confide n t i al u n d er occupations code section 201.206(a)

. See Tex. Att’y Gen. OR2010-10867. Howeve r, the ORD al s o o p i n ed that beca use occupations code sections 201.404 and 201.405 provide a patient a rig ht of acc ess to his or her own chiropra ctic rec ords, there

was a conflict betwee n section 201.206(a) and s ec tions 201.404 and 201.405. Apply ing code

2construction act section 311.026(b), t h e ORD conclude d that sections 201.404 and 201.405

constituted “spec ific provisions” and there fore preva iled as an exception to section 201.206(a) , which it de scribed as a “g ener al provision.” See Tex. Gov’ t Code Ann. § 311.026(b) (West 2005) (“I f t he conflict betwee n the gen er al provision and the specia l or l ocal provision is irrec oncilable, the specia l or local provision preva ils as an exception to the g ener al provision

. . . .”). Consequently , the ORD deter

mined that the rec ords at issue wer e excepted from the investiga tion-file privileg e the Boa rd relied on to withhold them and must be rele ased to the reque stor if he provided the Boa rd with
a prope r written c onsent. See Tex. Att’y Gen. OR2010-10867. The Boa rd then timely filed suit ag ainst the Attorney Gene ral seeking to withhold the

rec ords from the reque stor. See Tex. Gov’t Code Ann. § 552.324 (g overnme ntal body may file suit
ag ainst attorney g ener al seekin g d e c la r a to r y relief from attorney g ener al opinion issued under section 5 5 2 .301). The Attorney Gene ral answe red and reque sted that the district court rende r judgme n t decla ring that the information must be disclosed to the reque stor. The Boa rd and the Attorney Gene ral filed cross-motions for summary judgme nt; the district court g rante d the Attorney Gene ral’s motion and denied the B oard’ s. The B oard pe rfe cted this appe al.

STANDARD OF REVIEW We revie w the district court’s g ranting of a s u m m ary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A party moving for summary judgme nt must de monstrate that there is no ge nuine issue of mate rial fa ct and that he is e ntitled to judgme nt

as a mat t er o f l aw . T ex . R. Civ. P. 166a(c ); see also Provident L ife & Acc ident Ins. C o. v. K nott , 128 S.W .3d 211, 215 (Tex. 2003). When both sides move for summary judgme nt and the trial court
3g rants one motion and denies the other, the revie wing court should re view the summary judgme nt evidenc e prese nted by both sides, deter mine all q u e s ti o n s p rese nted, and rende r the judgme nt the trial
court should have rende red. Texas W orker’ s Comp. Comm’n v. Patient Advoc ates , 136 S.W .3d 643, 648 (Tex. 2004).

This appea l involves statutory construction, which prese nts questions of law that we revie w de novo. Bragg v. Edward’s Aquifer A u t h

. , 7 1 S.W .3d 729, 734 (Tex. 2002); Sanchez v. T exas State Bd. of Med. Exam’rs , 229 S.W .3d 498, 512 (Tex. App.—Aust i n 2 0 0 7 , n o pet.). I n construing a statute, our task is to deter mine and g ive eff

ect to the leg islature’s intent. Texas Dep’ t of Protective & Regulat ory Servs. v. Mega Child Care, Inc. , 145 S.W .3d 170, 176 (Tex. 2006); National Liab. & Fire Ins. Co. v. Allen , 15 S.W .3d 525, 527 (Tex. 2000); see also Tex. Gov’t Code Ann. § 312.005 (West 2005) (“I n interpre ting a statute, a court shall diligently attempt to asce rtain leg islative intent and shall consider at all times the old law, the evil, and the reme dy .”). We asce rtain that intent “first and fore most” from the statute’s lang uag e as written. Sanchez , 229 S.W .3d at 512. We consider the statute as a whole, not as isolated i n d i v i d u al provisions, and we do not g ive one provision a meaning out of harmony or inconsisten t wi t h o t h er provisions, even though it might be susceptible to such a construction standing alone. S ee Texas Dep’ t of Transp. v. Needham , 82 S.W .3d 314, 318 (Tex. 2002). I n deter mining leg islative intent, we may also consider the
conseque nces of a particula r construction. See Tex. Gov’t Code Ann. § 311.023 (West 2005); City of Austin v. Southwestern Bell Tel. Co. , 92 S.W .3d 434, 442 (Tex. 2002).

4DISCUSSIO N Under the PI A, informat i o n t h at is “collec ted, assembled or maintained

. . . in

c o n n e c ti on with the transac tion of officia l business” by a g overnme ntal body is “ p u b li c in f o r ma ti o n . ” Tex. Gov’t C ode Ann. § 552.002(a) (1). Th e P I A require s that “public information is available to the public at a m i n i m um during the normal business hours of the g overnme ntal body .” Id. § 552.021. Howeve r, “informa tion is excepted from the requir em en t s o f section 552.021 if it is information considere d confide ntial by law, either constitutional, statutory , or by judicial decision.” Id. § 552.101. The PI A is to be liberally construed in favor of g ranting reque sts for information. Id. § 552.001(b). Ex ceptions to the disclosure require ment o f t h e P I A are narr owly construed. Arlington Indep. Sch. Dist. v. Texas Att’y Gene ral , 37 S.W .3d 152, 157 (Tex. App.—Austin 2001, no pet.). Her e, the Boa rd contends that the reque s t ed chiropra ctic rec ords are part of an i n v es t i gation file and are there fore excepted from disclosure beca use they are expressly made confide ntial by section 201.206 of the occupations code, which protec ts from “discove ry , subpoena,
or any other means of l eg al compuls ion” t he c o n t en ts of t he Board’ s investiga tion files. See Tex. Occ . Code Ann. § 201.206(a ). 1

Whil e acknowledg ing that such an exception exis ts for the contents of the B oard’ s investiga tion files, the Atto rney Gene ral nonetheless arg ues that two separ ate provisions in

Chapter 201 contains the occupations code provisions dealing with t h e prac tice of 1 chiropra ctic, including defining the scope of p rac tice, setting forth licensing require ments, providing for patient confide ntiality , and identify ing the power s and duties of the Boa rd. See Tex. Occ

. Code Ann. §§ 201.001-201.606 (West 2012). 5chapte r 201—occupatio n s c ode sections 201.404 and 201.405—g rant a reque stor the rig ht to compel

the Boa rd to disclose the contents of its investi gat i o n fi le to the extent the file includes the
reque stor’s own rec ords. The Attorney Gene ral rea ches this conclusion b y em ploy ing code construction act section 311.026(b), which provides that “[i] f the conflict betwee n the g ener al provision and the specia l or local provision is irrec oncilable, the specia l or local provision preva ils

as an ex ce p t i o n t o the g ener al provision, unless the g ener al provision is the later enac tment and the manifest intent is that the g ener al provision preva il.” Tex. Gov’t Code Ann. § 311.026(b). Section 311.026(b) codified the common-law doctrine of in par i mat eria. See Burke v. State , 28 S.W .3d 545, 547 (Tex. Crim. App. 2000); Carlson v. City of Houston , 309 S.W .3d 579, 586 (Tex. App.—Houston [14t h Dist.] 2010, no pet.). The Attorney Gene ral asser ts that sections 201.404 and 2 201.405 toge ther act as a “spec ial provision” that g rants to a chiropra ctic patient the rig ht of acc ess
to his chiropra ctic rec ords which, by application of code construction act section 311.026(b), cre ates

an ex ception to the allege dly conflicting “g ener al provision” of se ction 201.206 that provides that the Boa rd’s investiga tion files are confide ntial and n o t s u b j ec t to any means of leg al compulsion for r elea se. The Boa

rd counter s that sections 201.404 and 201.405 of the occupations code do not

cre ate any such “rig ht of acc ess” or exception to the Boa rd’s investiga tion-file privileg e. The Boa rd
arg ues that section 201.404 permits cer tain disclosu

r e s o f o th e r

w ise confide ntial chiropra ctic rec ords

We note that code construction act section 311.026(a) direc ts that “[i] f a g ener al provision 2 conflicts with a specia l or local provision, the provisions shall be construed, if possible, so that eff ect is g iven to both.” See Tex. Gov’t Code Ann. § 311.026(a) (West 20 0 5 ). Only if the conflict is “irre concilable ” does se ction 311.026(b) g overn. 6and chiropra ctor-patient communications, but does not require them

. See Tex. Occ

. Code Ann.

§ 201.404 (setting forth list of eig ht exceptions to patient confide ntiality ). The Boa rd maintains that the only lang uag e mandating disclosure of a patient’s chir o p ra ct i c rec ords appea rs in section 201.405(f) and require s disclosure only by the patient’s chiropra ctor and not by the Boa rd. See id. § 201.405(f) (“A chiropra ctor shall furnish copies of chiropra ctic rec ords or a summary or narr ative of the re cords r equeste d under a written conse nt for re lease of the infor mation.”). The Attorney General’s arg ument depends on the application of code construction
act section 311.026(b). The rule of construction contained in that section applies only when statutes

are in pari materia , meaning they share a common purpose or object. DLB Architects, P.C.

v. W eave r , 305 S.W .3d 407, 410 (Tex. App.—Dallas 2010, pet. denied) (principle of in pari materia is limit ed to two provisi o n s enac ted with same purpose in mind); Howlett v. Tarrant Cnty. , 301 S.W .3d 840, 846 (Tex. App.—For t Worth 2009, pet. denied) (rule of construction contained in
g overnme nt code section 311.026(b) applies only if two statutes share common purpose or object); Strickland v. State , 193 S.W .3d 662, 666 (Tex. App.—For t Worth 2006, pet. ref

’d). For two statutes
to be in pari materia , they must h av e b ee n enacted with the same purpose in mind. Burke , 28 S

. W.3d at 547. Simi larity of purpose or object is the most important fac tor in deter mining whether two statutes are in pari materia , i.e., whether they are “close ly enoug h rela ted to justify interpre ting one in light of the other.” Id. (quoting Alejos v. State , 555 S.W .2d 444, 450 (Tex. Crim. App. 1977) (op. on re h ’g) ). To deter mine whether two statutes share a common purpose, courts consider whether the two statutes wer e clea rly written to achie ve the same objective. In re J.M.R. , 149 S.W .3d 289, 292 (Tex. App.—Austin 2004, no pet.). “The adventitious occur renc e of like or

7simil ar phrase s, or even of simil ar subject matter, in laws enac ted for wholly differ ent ends will not

justify apply ing the doctrine.” Id. The fa ct that the statutes could possibly cover the s ame person and the same property does not by it s el f wa rr ant an in pari materia construction. Cullen v. Stat e , 832 S.W .2d 788, 792 (Tex. App.—Austin 1992, pet. ref ’d). Sections 201.404 and 201.405 are part of chapte r 201, subchapte r I , which addre sses patient confide ntiality

. Section 201.402, the core provision of subchapte r I , provides that communications betwee n a chiropra ctor a nd his patient relating to professional se rvice s provided,

as well as the patient’s chiropra ctic rec ords, are “conf i d en t i al, and privileg ed and may not be disclosed except as provided by this subchapte r.” Tex. Occ

. Code Ann. § 201.402. Section 201.404
sets forth a list of eig ht excepti o n s t o patient confide ntiality , one of which permits the rele ase of confide ntial chiropra ctic rec ords to “any person who posses s es a writ ten consent descr ibed by 3 Se c ti o n 2 0 1

. 405.” Id. § 201.404(5). The exceptions to confide ntiality rec og nized by section 201.404

are expressly noted as “exceptions to Section 2 0 1

. 4 0 2

. ” Id. Section 201.405 sets forth the require ments of the consent exception rec og nized i n s ection 201.404(5), including that it be in writing and signe d by the patient or other authorized person and that it specify the rec ords cover ed by the rele ase, the purpose for the rele ase, and the person to whom the information is to be rele ased. Id

. § 201.405. This section mandates that upon rec eipt of proper consent, a chir oprac tor “shall” furnish copies of the reque sted rec ords. Id. These provisions wer e enac ted for the purpose of

“Chiropra ctic rec ords” are d ef i n ed as “any rec ord rela ting to the history , diag nosis, 3 trea tment, or prog nosis of a patient.” Tex. Occ. Code Ann. § 201.405( a) ( West 2012). 8permitting a patient (or his desig nee) to obtain his otherwise confidential chiroprac tic rec ords. I t 4 is evident, therefor e, that the p u rpose of subchapte r I is to ensure the confidentiality of a patient’s chiropra ctic rec ords by preve nting their disclosure except in the limit ed circ umstances identified as “exceptions” to that conf

identiality

. Section 201.206, by co n t ra s t, was enac ted for a differ ent purpose: to make the Boa rd’s investiga

tion files confid en t ial and privileg ed and not subject to inspection by members of the public in g ener al or the chiropra ctor under investiga tion in particular. T h e S en at e Bill Analy sis states:
Currently , Chapter 201, Occ upations Code, does not provide specific g uidelines reg arding the public’s ac ce ss to files for open investiga tions of licensed chiropra ctors. A license holder is there fore able, either solely or throug h the license holder’s a ttorney , to reque st and rece ive for reviewthe information obtained a bout the license holder’s case while an investiga tion of the license holder is underw ay . . . . As proposed, S.B. 211 would limit public acc ess t o ce rt ain board rec ords even for cer tain l ega l ac t i ons during the course of a license holder investiga tion. S.B. 211 would not preve nt the public from obtaining such rec ords once an investiga tion has been c ompleted.

Senate Resear ch Commi ttee, Bill Analy sis, Tex. S. B. 2 1 1 , 7 8 t h L eg ., R.S. (2003). L ike simil ar investiga tive-priv i l ege p rovisions, section 201.206 was desig ned to protec t the integ rity of the Boa rd’s re gu l at o ry proce ss. See Abbott v. Texas State Bd. of Pharm. , No. 03-11-00481- CV,

___ S.W .3d ___, 2012 WL 5974080 (Tex. App.—Austin Nov. 21, 2012 , no pet.) (holding that

We do not mean to sug g est that a chiropra ctic patient would not have a rig ht to obtain his 4 own rec ords from his chiropra ctor in the absenc e of this statute. This Court has previously held that a former patient has a common-law rig ht to inspect his own medical rec ords. See Hutchins v. Texas Rehab. Comm’ n , 544 S.W .2d 802, 803 (Tex. Civ. App.—Austin 1976, no writ). 9almost identical provision rela ted to investiga tive-privileg e provision cover ing investiga tion files of

Texas State Boa

rd of Pharm ac y wa s d esig ned to protec t integ rity of reg ulatory proce ss); Pack

v. Crossroads , 53 S.W .3d 49 2, 504-05 (Tex. App.—For t Worth 2001, pet. denied) (noting that almost identical investiga tive-privileg e provision in health and safe ty code was desig ned to protec t integ rity of depar

tment of health reg

ulatory proce ss); see also Tex. Att’y Gen. OR95-011 ( a d d r e s s in g investiga tion-file privileg e aff orded the Texas Depa

rtment of Hea lth and concluding that “[b] eca use section 1 4 2

. 0 0 9 [of the health and safe ty code] was desig ned to protec t the integ rity of the investiga tory proce ss of t h e Texas Depa rtment of Hea lth, and not solely the privac y interests of individuals, an individual may not invoke section 552.023 to g ain acc ess to rec ords made confide ntial under sec tion 142.009(d) of the he alth and saf ety code” ). Sections 201.404 and 201.405 and section 201.206 wer e not written to ac hieve the

same objective and there fore do not share a common purpose. See In re J.M.R. , 149 S.W .3d at 292. Code construction act section 311.026(b) is not applicable to statutes that cover differ ent situations and are not intended to be considere d toge ther. Howlett , 301 S.W .3d at 846. Be cause these statutes

are not in pari materia , do not share a common purpose, an d are not intended to be construed toge ther, it follows that one provi s i o n could not be considere d as controlling over the other or as

cre ating an ex ception to it

. We hold that code construction act section 311.026(b) does not apply in the prese nt circ umstances. Thoug h sections 201.404 an d 2 0 1

. 4 0 5 w e r e cer tainly intended to cre ate

an exception to the patient confide ntiality established by section 201.402, they wer e not intended to

cre ate an exception to the confide ntiality aff orded the Boa

rd’s investiga tion files by section 201.206.

10When statutes are ostensibly conflicting but are not in pari materia , rules of statutory

construction other than section 311.026(b) will dictate whether there is truly an irrec oncilable conflict and, if so, which statute controls. One of those rules require s us to presume that the leg islature intended the entire statute to be fully eff ective, and we there fore attempt to rec oncile and harmonize appar ently conflicting provisions so that ever y enac tment is g iven eff

ect. See Tex. Gov’t Code Ann. §§ 311.021(2), .026(a) ; CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coalit ion of Citi es , 263 S.W .3d 448, 461 (Tex. App.—Austin 2008), aff’d sub nom. T ex a s In d us. Energy Con s u me rs v. C enterPoint Energy Houston Elec., LL C , 324 S.W .3d 95 (Tex. 2009). Doing so in this c ase leads us to c onclude that sections 201.404 and 201.405 do not provide a “spec ial rig ht of

ac ce s s” that trumps the Boa rd’s rig ht under 201.206 to withhold the contents of its privile ged investiga tion file.

Construing sections 201.404 and 201.4 0 5 i n this manner does not result in the chiropra ctic patient having no rig ht to obtain information about himself from a g overnme ntal body

. The P I A recog nizes that individuals have a s pecia l interest in persona l information that is held by

a g overnme ntal body and provides those individuals with a specia l rig ht of acc ess to that information. See Tex. Gov’t Code Ann. § 552. 0 2 3(a) (per son has specia l rig ht of acc ess, bey ond rig ht of g ener al public, to information held by g overnme ntal body that rela tes to that person and that is protec ted from public disclosure by laws intended to protec t that p er s o n ’s privac y interests). Howeve r, the rig ht of acc ess rec og nized by section 552.023 is not unlimit ed, as is made clea r by the lang uag e of se ction 553.023(b):

11A g overnme ntal body may not deny acc ess to information to the person . . . to whom

the information rela tes on the g rounds that the information is considere d confide ntial by privac y principles under this chapte r but may asser t as g rounds for denial of acc ess other provisions of this chapter or other law tha t a r e not intended to protect the person’s privac

y interests.

Id. § 552.023(b) (empha sis added)

. Be cause the privileg e asser ted by the Boa

rd here is one intended
to protec t the integ rity of the Boa rd’s reg ulatory proce ss, rathe r than the reque stor’s privac y interests, section 552.023 does not pre vent the B oard f rom deny ing a cce ss to the reque sted information.

CONCLUSION The Boa rd was not require d to rele ase the reque stor’s chiropra ctic rec ords that wer e contained in an investiga tion file rela ted to a complaint about a chiropra ctor licensed by the Boa rd. We reve rse the summary judgme nt i n t he Attorney Gene ral’s favor and rende r judgme nt that the
reque sted documents are exempt from m an d at o ry d i sclosure under the PI A, such that the Boa rd i s n o t re quired to rele ase to the reque stor the chiropra ctic rec ords contained in the Boa rd’s investiga tion file.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Rende red Filed: January

16, 2013

12