### 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. 03-09-00154- CV

Gr eg Abbott, At torney G eneral of Texas, Appellan t

v. Texas Board of

Nursing, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0268 5, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This a ppeal conce rns a reque st f or information under

the Texas Public I nformation Act invol ving business fac simil e numbers of nurses collecte d and maintained by the Tex as Board of Nursing (the “B oard” ). See Tex. Gov’t Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2009) 1 (the “Ac t”). The Boa

rd believed that the fac simil e numbers wer e excepted from disclosure beca use they we re “conf

idential by law” under section 552.101 of the Act in conjunction with section 418.176(a) of the g overnme nt code and soug ht a letter ru ling from the Offic e of the Attorney Gene ral. See id

. §§ 418.176(a) (West 2005), 552.101 (West 2004). After the attorney g ener al issued a letter ruling concluding that the facsimile numbers we re subject to disclosure under t he Act, the Boa rd filed suit challeng ing this ruling and seeking to wit h h o l d t h e reque sted information. The

Texas Boa

rd of Nursing was former ly known as Texas Boa rd o f Nurse Ex aminers. 1 See Tex. Occ. Code Ann. §§ 301.002( 1), .005 (West Supp. 2009).Boa

rd and the attorney g ener al filed competing motions for summary judgme nt, and the district court g rante d s u mmary judgme nt in favor of the Boa rd. Be cause we conclude that the Boa rd failed to show that the fac simil e numbers are excepted from disclosure under the Act as a matter of law, we

reve rse the district c ourt’s judg ment and re nder judg ment in favor of the attorne y

g ener al.

BACK GR OUND The Boa rd is the state ag ency char g ed with reg ulating the prac tice of profe ssional and vocational nurses. See Tex. Occ

. C o de Ann. § 301.151 (West 2004). I n 2002, the Boa rd beg an collecting business fac simil e numbers of nurses that it licensed based upon a re co m m en d at ion by the Governor’s Task For ce on Homeland Sec urity . The Ta sk Forc e wa s cre ated a nd char g ed with making rec ommendations to the g overnor (i) to assure state and local prepa redn es s to respond to terror ist threats, (ii) to fac ilitate coordination betwe en fe dera l, state, and local ag encie s to respond to threa ts, and (iii) to assess the ability of state and local g overnme nt ag encie s to respond to threa ts. I n its J anuar

y 2002 repor

t, the Task For ce rec ommended that the g overnor re q u est “all health licensing org anizations and ag encie s to require licensee s to provide busin ess fax numbers and

e-ma il addresse s.”

On May 17, 2007, the Boa rd rec eived a reque st for public informatio n fr om Mr. Eddie McKibben, president and CEO of Optimum Hea lthcare

. He reque sted “all fax numbers that [t he Boa

rd] may have in [i ts] data base for any and all nurses in the State of Texas.” The Boa rd believed that the reque sted numbers wer e confide ntial and timely reque sted an open-r ecor ds ruling from the Offic e of the Attorney Gene ral whether disclosure of the fac simil e numbers was require d under the Act. See Tex. Gov’t Code Ann. § 552.301 (West Supp. 2009). The B oard a sserted tha t
2the fac simil e numbers wer e excepted from disclosure u n d er s ec tion 552.101 of the Act in

conjunction with section 418.176(a) of the g overnme nt code th at makes confide ntial cer tain information rela t i n g t o an “eme rg ency response provider.” See id

. §§ 418.176(a) , 552.101. The Boa rd, howeve r, d i d n o t p ro v ide a copy of the reque sted information that the Boa rd soug ht to withho l d o r a repr esenta tive sample with its reque st to the attorney g ener al. See id. § 552.301(e) (1)( D).

The attorney g eneral issued a letter opinion order ing the reque sted information rele ased pursuant to section 552.302. See id. § 552.302 (West Supp. 2009). Be cause the Boa rd did not provide a copy of the reque sted information or a repr esenta tive s am p l e, the attorney g ener al declined to issue a substantive ruling , presumed the information reque sted was public, and order ed the business fac simil e numbers disclosed. The Boa rd there afte r filed this suit challeng ing the attorney g ener al’s deter

mination. See id

. § 552.32 4 (W es t Supp. 2009). The Boa rd notified the reque stor, but the reque stor did not intervene in the suit. See id . § 552.325 (West Supp. 2009).

The parties filed competing motions for summary judgme nt. The B oard ur g ed that it was not require d to provide a r epre sentative sample of the re quested infor mation to the attorney g ener al to comply with section 552.301 of the Act and that the reque sted information was confide ntial by law under section 418.176 of the g o v er nment code. The Boa rd contende d that it collecte d the fac simil e numbers for the pu rp o s e o f re sponding to an act of terror ism or rela ted criminal activity and p ursuant to rec ommendations of the Gover nor’s Task For ce on Homeland Security

. The Boa rd’s summary judgme nt evidenc e included excerpts from the Task For ce’ s J anuar

y 2002 repor

t to the Gover

nor and the aff

idavits of Mark Majek and Clai r J o rd an .

3Majek aver red that (i) he was the Boa rd’s direc tor of opera tions, (ii) in response to the Task For ce’ s

rec ommendation, the Boa rd beg an collecting the business fac simil e number s of its nurses throug h its application forms, and (iii) the application forms wer e chang ed to incl u d e business fac simil e numbers for “no oth er rea son.” J ordan aver red that she was licensed as a reg istered nurse by the State of Texas and the executive direc tor of Texas Nurses Association (TNA) and discussed the role TNA a nd nurses play

in responding to emerg encie s in Texas, both at the state and loca l level. The attorney g ener al counter ed that it was entitled to summary judgme nt beca use the “conf idential by law” exception to disclosure in conjunction with s e c ti o n 4 1 8 .176(a) (3) did not apply to the business fac simil e numbers and that the Boa rd was require d to show a com p el l i n g re ason beca use it did not provide a repr esenta tive sample or a co p y o f t h e reque sted information. The attorney g ener al’s evidenc e included the Boa rd’s response s to discovery and a char t that the Boa

rd prepa red a s part of its strateg ic plan for the fisca l y ear s 2009 to 2013. I n its discovery response s, the Boa rd stated that it is a “g overnme ntal entity that collec t s the contac t information (including fax numbers) of Texas nurses, who are ‘eme rg ency response providers’ within the meaning of section 418.176.” The Boa rd also admitted that it did not provide emer g ency service s and descr ibed its role under the State of Texas Emerg ency Manag ement Plan to be “wor

king with DSHS [Tex as Depa rtment of State Hea lth Service s] to provide proce dures to loc al g overnme nts to verify the profe ssional lice nsure of nurses fr om other states for prac tice in the State of Texas during disaster response .” The statistical information in the char t shows licensed 2

I n its response s to reque sts for admission, the Boa rd admitted that it is not listed as a 2 primary or support ag ency for any Emerg ency Support Func tion in the S tate of T ex as E m er g ency Manag ement Plan. I n response to interrog atories, the Boa rd answe red “None known” when asked 4reg istered nurses’ primary place s of employ ment during the time period 1995 to 2007. The primary place s of employ

ment included “Nur sing Home/Ext ended Care,” “P hy sician/Dentist Offic e,”a nd “Home Hea lth Ag ency .” After a hear ing, the district court g rante d final summary judgme nt in favor of the B oard. This a

ppeal f ollowed.

ANALYSIS I n two issues, the attorney g ener al challeng es the district court’s summary judgme nt ruling

. The attorney g ener al contends t h at (i ) t h e Bo ard failed to meet its burden to prove, as a matter of law, that section 418.176(a )(3) of the g overnme nt c ode applied to the business fac simil e numbers that the Boa

rd collecte d and maintained of its licensee s and (ii) the Boa rd was require d to show a compelling reas o n to withhold the information beca use it failed to provide the attorney g ener al with the re quested infor mation or a re prese ntative sample.

Stan dard of Revie w

We revie w t he trial court’s decision to g rant summ ary judgme nt de novo

. Valence Operating Co. v. Do r

s ett , 164 S.W .3d 656, 661 (Tex. 2005). To preva il on a summary judgme nt motion, the movant must demonstrate that there are no g enuine issues of materia l fac t and that it is entitled to judgment a s a matter of law. See Tex. R. C iv. P. 166a(c). When both par ties move for summary judgme nt on the same issues and the trial court g rants one motion and denies the other, as here , the revie wing co u rt considers the summary judgme nt evidenc e prese nted by both sides,

to “desc ribe eac h and ever y emer g ency service that [t he Boa rd] provided” and to “[s] tate the dollar amount of [the Boa

rd]’s budge t that it spends on emerg ency response .” 5deter

mines all questions prese nted, and, if the revie wing court deter mines that the trial court err ed, rende rs the judg ment the trial cour t should have re ndere d. Dorsett , 164 S.W .3d at 661. We also revie w issues of statutory construction de novo . City of San Antonio v. City of Boerne , 111 S.W .3d 22, 25 (Tex. 2003). When construing a statute, we beg in with its lang uag e. State v. Shumake , 199 S.W .3d 279, 284 (T ex . 2006). “Our primary objective is to deter mine the L eg islature’s intent which, when possible, we discern from the plain meaning of the words chosen.” Id. (citing City of San Antonio , 111 S.W .3d at 25). I f the statute is clea r and unambig uous, we apply its words acc ording to their common meaning

. Id. (citing Fitzgerald v. Advanced Spine Fixation Sys., Inc ., 996 S.W .2d 864, 865-66 (Tex. 1999)). We interpre t statutory terms consistently in ever y part of an act. Texas Dep’ t of Transp. v. Needham , 82 S.W .3d 314, 318 (Tex. 2002). I n construing

an undefine d statutory term, courts should not g ive the term “a meaning out of harmony or inconsistent with other provisions, althoug h it might be susceptible of such a construction if standing alone.” Id .; see also Tex. Gov’t C ode Ann. § 3 1 1

. 011 (West 2005) (“Words and phrases shall be

rea d in context. . . .”).

Deter mining whether an exception applies under the Ac t t o support withholding public information is a question of law. City of Garland v. Dallas Morning News , 22 S.W .3d 351, 357 (Tex. 2000); Simmons v. Kuzmich , 166 S.W .3d 342, 346 (Tex. App.—For t Worth 2005, no pet.); City of Fort W orth v. Cornyn , 86 S.W .3d 320, 323 (Tex. App.—Austin 2002, no pet.). We construe the Act liberally in favor of g ranting reque sts for information. Tex. Gov’t Code Ann. § 552.001(b). And exceptions to disclosure ar e nar rowly construed. City of Garland , 22 S.W .3d at 365.

6Section 418.176 of the governm ent code I n his first issue, the attorney g ener al contends that the Boa rd failed to meet its burden to prove, as a matter of law, that s ec t i o n 4 1 8

. 176(a) (3) of the g overnme nt code applied to the business fac simil e numbers of nurses that the Boa rd collecte d and maintained to support

ex ce p ting the numbers from disclosure under section 552.101 of the Act. See Tex. Gov’t C o d e Ann. §§ 418.176(a )(3) , 552.101.

The parties ag ree that the business fac simil e n u m b er s at issue are “public information” subject to disclosure under the Act unless an exception applies. See id

. §§ 552.002(a) (West 2004) (“public information” define d ), .006 (West 2004) (“This chapte r does not authorize the wi t h holding of public information

. . . , except as expressly provided by this chapte r.”)

. And the Boa rd, as the g overn m ental ag ency withholding documents under an exception to the Act, bear s the burden of proving the exception applies. See Abbott v. Texas Dep’ t of Mental Health & Mental Retardation , 212 S.W .3d 648, 655 (Tex. App.—Austin 2006, no pet.); Thomas v. Cornyn , 71 S.W .3d 473, 488 (Tex. App.—Austin 2002, no pet.).

The Boa rd relies u p o n the exception in section 552.101 of the Act that “[i] nformation is excepted [from disclosure] if it is info rm at i o n considere d to be confide ntial by law, either constitutional, statutory , or by judicial decision.” See Tex. Gov’t Code Ann. § 552.101. The Boa rd urg es that section 552.101 ex cepts the reque sted information from disclosure beca use that information is considere d confide ntial under sec tion 418.176(a) of the g overnme nt code.

7Section 418.176(a) of the g overnme nt c ode makes cer tain information conf

idential t h at conce rns the preve ntion, detec tion, response and investiga tion of acts of terror ism or rela t ed criminal ac tivity : (a) I nformation is confide ntial if the information is co l l ec t ed, assembled, or maintained by or for a g overnme ntal entity for the purpose of preve nt i n g , detec ting, responding to, or investiga tin g an act of terror ism or rela ted criminal ac tivity

and: (1) rela tes to the staffing require ments of an emer g ency response provider, including a law enfor ceme nt ag ency , a fire- fig hting ag ency , or an e merg ency

service s ag ency ; (2) rela tes to a tac tical plan of the provider; or (3) consists of a list or compilation of pag er or tel ep h o n e n umbers, including mobile a

nd cellular

telephone numbe rs, of the pr ovider. Tex. Gov’t Code Ann. § 418.176(a)

.

The Boa rd does not contend tha

t it is an “e merg ency

response provider” within the meaning of that term in se ction 418.176. See id

. I t urg es that it is a “g overnme ntal entity ” within 3 the m eaning of subs ection (a) that collecte d t h e b u s i n es s fac simil e numbers of nurses for the sole purpose of responding to an act of t err orism or rela ted criminal activity and that the nurses that it licenses are “e m erg ency response providers” within that term’s common meaning

. There fore , it urg es that the nurses’ business fac simil e numbers the Boa rd maintains constitute a “list or compilation of pag er or telephone numbers

. . . of t h e p ro v ider[s] ”—i.e., the nurses—within

The Boa rd’s discovery response s show that it does not provide emer g ency service s or play 3 a role in the State’s emer g ency communication sy stem in the event of a n act of terror ism. 8the meaning of subsection (3). The Boa rd also relies upon the aff idavits of Mark M aj ek and Clair J ordan. Majek aver

red that the Boa

rd only beg an collecting the fac simil e numbers based upon the rec ommendation of the Task For ce in 2002 and “for no other rea son.” J ordan aver red conce rning the role nur ses play

in emerg encie s, both at the local a nd state leve l. The attorney g ener al counter s, amo n g i ts arg uments, that “eme rg ency response provider” ref

ers to emer g ency ty

pes of entities, not individuals such as the nurses here

. The attorney g ener al contends that the Boa rd’s sole cause for possession of the business fac simil e numbers is the nurses’ licensee status and that the statute does not suppor t a n interpre tation tha t makes individual

nurses “eme rg ency response provider[s]” based upon their licensee status with t h e Board. The at t o rn ey g ener al relies upon the plain meaning of the lang uag e in the statute, the statisti ca l information in the char

t tha t the Boa

rd prepa red showing prac tice are as of Texas nurses, including

n on-eme rg ency ty

pes of prac tice are as, and the Boa rd’s ag ree ment that it is not an eme rge n cy response provider a

nd that it does nothing with the business fa csimile numbers once collecte d. This appea l turns on the meani n g o f “e merg ency response provider” within the statute. See id

. There are three ref ere nces to “eme rg ency response provider” in section 418.176(a)

. Subsection (1) ref

ers to the “staff

ing require ments of an emer g ency response provider” and define s “eme rg ency response provider” as including “a law enfor ceme nt a g ency , a fire- fig hting ag ency , or

an emer g ency service s ag ency .” See Tex. Gov’t Code Ann. § 418.176(a) (1). The Boa rd, a licensing

9ag ency , conce des that it is not an “eme rg ency respo n s e p ro v i d er” within the term’s meaning in

section 418.176(a ). See Tex. Gov’t Code Ann. § 418.176(a)

. 4

Fur ther, the ref

ere nce to “staff

ing require ments” in subsection (1) also supports that the leg islature did not intend to incl u d e i ndividuals, such as the licensed nurses here , but “eme rg ency response ” ty pes of entities within the meaning of “eme rg ency response providers.” See id. § 418.176(a) (1); Needham , 82 S.W .3d at 318. I ndividual nurses would not commonly have “staff ing require men t s ” i n co n t rast to the entities that employ individual nurses. See Tex. Gov’t Code Ann. § 418.176(a) (1). The eviden ce was undisputed that the Boa rd does not employ its licensed nur ses or provide emer g ency service s. The other two ref

ere nces to “provide r” in se ction 418.176(a) are consistent that the leg islature did not in t en d t o i n cl u de individuals, such as the nurses here , within the meaning of “eme rg ency response provider.” Subsection (2) ref ers to the “tac tical plan of the provider” and subsection (3) refe rs t o a “list or compil ation of pag er or telephone numbe rs . . . of the pr ovider.” S ee i d

. § 4 1 8 .176(a) (2), (3); Needham , 82 S.W .3d at 318. Ag ain, an individual nurse would not

common l y m aint ain a “tac tical plan” or “list or compilation of pag er or telephone numbers” in

That the Boa

rd does not fall within the meaning of “eme rg ency response p rovi der” is 4 consistent with the rule of ejusdem generis

. The rule of ejusdem generis “provide s that when words of a g ener al nature are used in connec tion with the desig nation of par t i cu l ar o b j ects or classes of persons or things, the meaning of the g ener al words will be restric ted to the particula r desig nation.” Hilco Elec . Coop. v. Midlothian Butane Gas Co. , 111 S.W .3d 75, 81 (Tex. 2003). Under the rule of ejusdem ge neris , courts interpr et a statute c ontaining a n illust rative list to include only items of t h e s am e k i n d or class as those expressly mentioned. See Johnson v. Texas Dep’ t of Transp

. , 905 S.W .2d 394, 399 (Tex. App.—Austin 1995, no writ). Although the listed ag encie s are not exclusive, they are consi stent with a leg islative intent to addre ss confide ntial information held by classes or ty

pes of entities that provide emer g ency service s. S ee T ex . Gov’t Code Ann. § 418.176(a) (1)( West 2005). 10contrast with the entity that employ s her. See Tex. Gov’t Code Ann. § 418.176(a) (2), (3);

see also id . § 311.011.

The Boa rd relies upon section 418.171 of t h e go v ernment code to support its interpre tation of section 418.176(a) that individual nurses wer e intended to fall within the definition of “eme rg ency response provider.” See id

. § 418.171 (West 2005). Section 418.171 authorizes individuals li cense d in other states to re nder a id in this state to meet a n emer g ency

or disaster:

A person who holds a license, cer tificate, or other permit issued by a state or political subdivision of any state evidenc ing the meeting of qualifica tions for profe ss i o n al, mecha nical, or other skills may rende r aid involving the skill in this state to meet an emer g ency or disaster. This state shall g ive d u e co n s i dera tion to the license, cer tificate, or

other pe rmit.

See id

. That out-of-state persons, including nurses who are licensed in another state, are authorized and do respond to emer g encie s in Texas does not support broade ning the definition of “eme rg ency

r e s p o n s e provider” in section 418.176(a) to include individual nurses based upon their licensee s ta tu s with the Boa

rd. See City of Garland , 22 S.W .3d at 365 (exceptions are to be narr owly construed)

. We conclude that the plain lang uag e of section 418.176(a) is clea r that the leg islature did not intend for the term “eme rg ency response provider” to include wholesale the individual nurses licensed by the Boa

rd. See Shumake , 1 9 9 S

. W .3d at 284; City of Garland , 22 S.W .3d at 365. Moreove r, the attorney g en er al ’s i nterpre tation of section 418.176(a) that nurses licensed by the Boa rd are not included within the meaning of “eme rg ency response provider” is rea sonable. See Rainbow Group, Ltd. v. Texas Employme nt Comm’n , 897 S.W .2d 946, 949 (Tex. App.—Austin 1 9 9 5, writ denied) (re viewing court g ives due considera tion to attorney g ener al decisions in

11case s involving the Act). We, there fore , conclude as a matter of law that the business fa cs i m i le

numbers of nurses collecte d and maintained by the Boa rd are not excepted from disclosure pursuant to se ction 552.101 of the Act in c onjunction w ith se ction 418.176(a) of the g overnme nt c ode. See Tex. Gov’t Code Ann. §§ 418.176(a) , 552.1 0 1 ; Shumake , 199 S.W .3d at 284. We sustain the attorney g ener al’s first issue. 5 Having sustained the attorney g ener al’s first issue, we need not rea ch his second issue that th e Boa

rd was require d to provide a copy of the reque sted information or a repr esenta tive sample to the attorney

g ener al. See Tex. R. App. P . 47.1.

CONCLUSION Be cause we conclude that the Boa rd failed to show as a matter of law t h at t h e business fac simil e numbers of nurses collecte d and maintain ed by the Boa rd are excepted from disclosure under the Act as a matter of law, we reve rse the district court’s judgme nt in favor of the Boa rd and rende r judgme nt in the attorney g ener al’s fa

vor that the business fa csimile numbers are subject to disclosure unde r the Ac t.

Be cause we have conclude d that the plain lang uag e of section 418.176(a) does not support 5 the Boa rd’s interpre tation of “eme rg ency response provider,” we need not addre ss the attorney g ener al’s additional arg uments for reve rsing t h e d i s t ri ct court’s judgme nt, such as the leg islative history of this section. See Tex. Gov’t Code Ann. § 418.176(a) (West 2005); Tex. R. App. P. 47.1; see also Mills v. Fletche r , 229 S.W .3d 765, 769 (Tex. App.—San Antonio 2007, n o . p et

. ) (gi v en cl ear lang uag e used in statute, appellate court need not consider leg islative history ); W elmake r v. Cuellar , 37 S.W .3d 550, 552 n.6 (Tex. App.—Austin 2001, pet. denied) ( same). 12__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Concurring Opinion by J ustice Pemberton Reverse d and Rende red Filed: F ebrua

ry 3, 2010

13