### 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

ON REHEARING

NO. 03-13-00820- CV

City of El P aso, Texas, Appellan t

v. Gr eg Abbott, At torney G eneral of Texas and Stephan ie Tow nsend Allala, App ellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GV-1 2-0 0173 1, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

O P I N I O N

We withdraw our opinio n an d j u d gment of Aug ust 1, 2014, and substitut e the following opinion and judgme nt in their place

.

I n this interlocutory appea l, appellant the City of El Paso challeng es the district court’s denial of the City ’s plea to the jurisdiction in a case broug ht under the Texas Public I nformation Act (PI A). The City filed the suit seeking decla ratory relief from compliance with 1

an attorney g eneral d ecision order ing the City to disclose cer tain information reque sted by appellee S t ep h anie Townsend Allala. See Tex. Gov’t Code § 552.324 (authorizing suit ag ainst attorney g ener al by g overnme ntal body that seeks to withhold information order ed disclos ed by the att orney g ener al pursuant to PI A). Allala intervene d, seeking a writ of mandamus to compel

The PI A is codified in the Texas Gover nment Code. See Tex. Gov’t Code § 552.001–.353. 1the disclosure of the responsive do cu ments. See id

. § 552.321 (wa iving sovere ign immunit y for

reque stor seeking mandamus to c ompel disclosure). During the pendenc y of its suit, howeve r, the City decide d to comply in full with t h e at t o rney g ener al’s decision and produce d to Allala the responsive infor

mation in its possession. I t then filed a ple a to the jurisdiction to dismi ss Allala’s cl aim , arg uing that it had complied with Allala’s reque st in full. The Attorney Genera l d i d n o t
oppose the City ’s plea, but A llala did, and afte r two hear ings on the issue, the district c ourt denied the City ’s plea to the jurisdiction. For the rea sons explain ed i n d et ai l b elow, we will reve rse the district court’s order deny i n g t h e City ’s plea, rende r judgme nt that the district court lacks jurisdiction, and dismiss Allala’s c laim for mandamus relief.
Background I n September and October 2012, Allala made two public-informa tion reque st s to the City of El P aso for various communica tions reg arding public business of the City betwee n the

ma y o r , c ouncil repr esenta tives, the city manag er, or some combination there of, including any pu b li c business communications that may h av e b ee n conducte d on the persona l email acc ounts of these individuals. The City , following the proce dures set forth in the PI A, see id. §§ 552.301–.309, asked the attorney g ener al to issue advisory opinions reg arding Allala’s reque st, inclu d i n g whether the private emails responsive to Allala’s reque sts wer e public information an d , if so, whether those emails wer e excepted from disclosure under the PI A. The City arg ued in its reque sts that any responsive emails held on individuals’ private email acc ounts cannot be considere d “public information” under the PI A’s then-c urre nt definition of that term beca use the emails wer e not in the

2City ’s possession and we re ina cce ssible to the City

. I n one opinion addre ssing both re quests, the 2 attorney g ener al rea soned, in rele vant part, that b ec au s e the private emails reque sted by Allala “re late[] to the officia l business of a g overnme ntal body and [are] maintained by a public officia l or employ ee of the g overnme ntal body ,” the emails are within the s co p e o f t h e PI A. See Tex. Att’y Gen. OR2012-19216. The location of public information, the attorney g ener al explained, does
not aff ect its status as public information. See id. The attorney g ener al deter mined further that the
reque sted emails wer e not subject to any exceptions to disclosure asser ted by the City and,

acc ording ly , informed the City that it must rele ase the withheld information. See id. I n response to the attorney g ener al’s decision, the City fi led suit in Travis County seeking decla

rations that private emails are not “public information” under the PI A, private emails

are excepted from disclosure under the PI A, the City “has compelling rea sons to keep the documents
at issue except[ed] from public disclosur e,” and the City is not require d to rele ase private emails. See Tex. Gov’t Code § 552.324 (authorizing de clar atory -judg ment action aga inst attorney g ener al for relief from compliance with a decision order ing it to disclose cer tain information). Specifica lly , t h e C i t y arg ued that the persona l paper s, emails, and eff ects of local-g overnme nt officia ls and employ ees that are held independe ntly from the g overnme ntal body are not subject to “open rec ords

sear ches” and do not meet the statutory definition of public information, thus t h e information is inacc essible to the City and not subje ct to the PI A. The a ttorney g ener al filed a

n answe r opposing the City ’s arg uments, and Allala interve ned in the case , seeking an order of mandamus ag ainst the City to disclose all of t he publi c information that she had reque sted. See id. 552.321 (authorizing

See Act of May 29, 1995, 74th L eg ., R.S., ch. 1035, § 2, sec. 552.002, 1995 Tex. Gen. 2 L aws 5127, 5127–28 (ame nded 2013) (cur rent version at Tex

. Gov’t C ode § 5 5 2

. 0 0 2 ) (d efinition of “public infor

mation” in eff

ect whe n Allala filed he r re quests for infor mation. 3mandamus action by reque stor wher e the g overnme ntal body “re fuses to supply public information

or information t h at t h e attorney g ener al has deter mined is public information that is not excepted from disclosure ”).

During the pendenc y of the City ’s decla ratory -j u d gment action, the leg islature amende d the PI A’s definition of “public information” to codify , t h e p ar ties contend, the attorney
g ener al’s long- held position that public information includes documents or other items cre ated “by

an individual office r or employ ee of a g overnme ntal body in the office r’s or em p l o y ee ’s officia l
capa city and the informati o n p erta ins to officia l business of the g overnme ntal body ,” reg ardle ss of wher e that information is located. See Ac t o f M ay 24, 2013, 83d L eg ., R.S., ch. 1204, § 1,

sec. 552.002, 2013 T ex . Ge n . L aw s 3011, 3011–12 (codifie d at Tex. Gov’t Code § 552.002). 3 Acc ord i n g t o the City , cer tain other matters aff

ecting the City ’s eff

orts to withhold cer

tain of the
reque sted information had cea sed to exis t during the pendenc y of its PI A suit. Acc ording ly , the City decide d to withdraw its challeng e to the attorney g ener al’s decision and, on September 16, 2013, rele ased to Allala

all rema ining r esponsive docume nts that were in its poss ession. After rele asing the documents, the City filed a plea to the jurisdiction, arg uing tha t its rele ase of the reque sted documents in its possession had mooted all claims, thus d epriving the district court of jurisdiction, and that its case should be dismiss ed ac co rdi ng ly

. I n support of its plea to the jurisdiction, the City attache d the aff idavit of its city manag er, J o y ce W i l s o n, who testified that afte r conducting “a diligent sear ch for information,” the City had g ather ed and turned

over “all [responsive] information acc essible to t h e ci t y or within the city ’s control,” including

Be cause the i ssue i s not befor e us here , we do not addre ss the effec t of t he L eg islature’s 3 2013 chang es to the def

inition of “public information.”

4information voluntarily disclosed by curr ent and former city officia ls in response to Wil son’s reque st

for suc h information.

The attorney g ener al did not oppose the City ’s plea. Allala, howeve r, filed a response
to the City ’s plea objecting to Wil son’s aff idavit and reque sting a continuance to allow Allala to conduct discovery rela

ted t o both the C ity ’s pl ea and t o the m er i t s o f Al lala’s mandamus reque st. Specifica lly , Allala arg ued that befor e dismiss ing her petition as moot based solely on the City ’s

asser tion that it has provided all the in fo rm at i o n i n its possession, she should be allowed to depose certa in of t he indi viduals identified i n her informat i o n request to deter mine whether those named indivi duals have rec ords responsive to her re quest—i.e., ema ils rela ting to public business located on private email acc ounts—that were not provided to the City or disclosed pursua

nt to the attorney g ener al’s decision. Allala pointe d o u t , s u p p o rted by her own aff idavit, that the City had failed to produc e ce rtain attac hments for the e mails that it had produced and that, as shown by the Ci t y ’s response s to reque sts for admission, the City had reda cted persona l email addre sses from

cer tain emails. Allala also attache d an email, provided to Allala by the City , from city councilman Steve Orteg a to Wil son, in which Orteg a stated th at h e wo u l d “not be turning over any of [hi s] private emails.” Finally , Allala asser ted that, reg ardle ss, the City ’s evidenc e in support of its plea to the jurisdiction was not sufficie nt to prove mootness as a ma tter of law

.

At the first hear ing on the City ’s plea to the jurisdiction, the district court sustained Allala’s objection to Wil son’s aff idav i t , b u t decide d to postpone a decision on the City ’s plea to

4 allow Allala time to conduct “limited discovery .” A few wee ks later, the City filed a supplemental

The dist rict court deter

mined that the affidavit’s s tatement reg arding its “dili gent s ear ch 4 for infor mation” was “ conclusory .” 5plea t o t h e j u ri sdiction, which in addition to addre ssing Allala’s contentions reg arding missing

attachme nts, included three aff idavits detailing the City ’s eff orts in response to Allala’s reque st for informa t ion and asser

ting that all responsive information possessed by or acc essible to the City had been produce d to Allala. At the second hear ing on the City ’s plea, the parties resolved the issue rela ting to the missing email attachme nts, but Allala m ai ntained her position reg arding the reda cted email addre sses and the need for additional discovery to deter mine whether any responsive information exis ted outside the phy sical possession of the City

. Allala did not offe r any additional

ev idence to support her opposition to the City ’s plea. Counsel for former city council m em b er Steve Orteg a arg ued at the hear ing that his client had since decide d to produce responsive information and purported to offe r an aff idavit attesting to that decision, but that aff idavit does not
appea r in the rec ord befor e this Court. After taking the matter under advisement, the district c ourt denied the City ’s plea to the jurisdiction, allowing Allala’s claim for relief to proce ed. I t is from this interlocutory

order that the City

now appe als.

Stand ard of review A plea to the jurisdiction challeng es a trial court’s authority to decide the subject matter of a

specific cause of ac tion. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 225–26 (Tex. 2004). Where, as here , the p l ea t o t h e jurisdiction challeng es the exis tence of jurisdi ct i o nal fac ts—i.e., whether the City “re fuses to supply public information or information that the attorney g ener al has deter mined is p u b l i c information,” Tex. Gov’t Code § 552.321—we consider evidenc e that the parties have submitt ed when nece ssary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000). I n fac t, in a plea to the jurisdiction, a party may prese nt e vidence to neg ate the exis tence of a jurisdictional f act alleg ed in 6the pleading s, which we would otherwise presume to be true. See Mi r a n d a , 133 S.W .3d at 227. How we revie w a trial court’s expli cit or implicit deter mination o f such a challeng e depends on whether the jurisdictional fac t being challeng ed overla ps with the merits of the c o mp la in a n t’ s claims. See University of Tex. v. Poindexte r , 306 S.W .3d 798, 806 (Te x . Ap p.—Austin 2009, no pet.). When, as here , the jurisdictional fac ts do implicate the merit s , an d the plea to the jurisdiction i n cludes evidenc e, the trial court revie ws the rele vant evidenc e to deter mine if a fac t issue exis ts

. See Miranda , 133 S.W .3d at 228. I f the evidenc e cre ates a fac t question reg arding the jurisdictional 5 issue, then t he trial court cannot g rant the plea to the jurisdiction, and the fac t issue is resolved by the fact finder at trial. Id

. at 227–28. I f t he relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id

. The trial court’s deter mination in such a case is a purely leg al one that we revie w de novo, indulging ever

y rea sonable inferenc e and re s olving any doubts in the pl aintiff’s favor. Id

. at 228; Poindexte r , 306 S.W .3d at 807.

Resolution of

jurisdictional questions fre quently entails, as it does here , construction of statutes, which itself prese nts a question of law. See Texas W

. Oaks Hosp., LP v. W

illiams , 371 S.W .3d 171, 177 (Tex. 2012). When construing a statute, our primary objective is to asce rtain and g ive eff

ect to the leg islature’s intent. TGS–NOPEC Geophy sical C o
. v. Combs , 340 S.W .3d 432, 439 (Tex. 2011). To discern that intent, we beg in with the s tatute’s words. Id

. “Where text is clea r, text is deter

minative of that intent.” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433,

I f the challeng ed jurisdictional fac t does n o t o verla p the merits, the fac t issue may be 5 resolved by the t rial co u rt when resolving the jurisdictional issue, and it s expli cit or i mplicit fac tfinding (or failure -to-find) may be challeng ed in t h e s ame manner as fac t finding s g ener ally

. See Combs v. Entertainment Publ’ns, Inc ., 292 S.W .3d 712, 719 (Tex. App.—Austin 2009, no pet.). 7437 (Tex. 2009). The words cannot be examined in isolation, but must be informed by the context

in which they are used. TGS–NOPEC , 340 S.W

. 3 d at 441. We rely on the plain meaning of the words, unless a differ ent meaning is supplied by leg islative definition or is appar ent from context,

or unless such a construction leads to “absur d results.” See City of Rock wall v. Hughes , 246 S.W .3d 621, 625–26 (Tex. 2008); see also Tex. Gov’t C ode § 311.011 (“Words and phrase s shall be read in context and construed acc ording to the rules of g rammar and common usag e,” but “ [w] ords and phrase s that have ac q u i red a technica l or particula r meaning , whether by leg islative definition or otherwise, sha ll be construed a ccor dingly .”).

Discussion T h e C i t y challeng es the district court’s denial of its plea to the jurisdiction i n three issues: (1) whether the City ’s voluntary production of all responsive information that it had

acc ess t o when Allala’s request was made, including private emails voluntarily turned o v er to the City in response to officia l reque sts for such documents from rele vant individuals, mooted all claims rela ted t o the under ly ing PI A ac tion; (2) whether the doctrine of sovereig n immunit y deprive d the trial court of jurisdiction once the City “esta blishe[d] by jurisdictional evidenc e that [t he City ] ha[d] complied, to th e ex t en t o f i ts ability ,” with the attorney g ener al’s decision; and (3) whether a

re q u estor may continue to prosec ute a mandamus action broug ht under the PI A when evidence establishes that the circ umstances listed in PI A sections 552.321 and 552.324 do not exis t. Be cause th e Ci ty ’ s u

n controve rted jurisdictional evidenc e conclusively neg ated that it was “re fusing to sup p ly public information or information that the attorne y g ener al has de termined is public information,”

see T ex. Gov’t Code § 552.321(a) (wa iving sovere ign immunit y for cer tain mandamus actions),

8which formed the basis of Allala’s reque st for mandamus relief , we will beg in our analy sis with the City ’s sovere ign- immunit y arg ument. 6
Sovereign Im m uni ty

The doctrine of sovere ign immunit y , which shields g overnme ntal entities’ “improvident acts” aga inst the l itigation and judicial reme dies that would be a vailable if the same acts were committed by private pe rsons, is well known and settl ed in Texas. See Tooke v. City of Mex ia , 197 S.W .3d 325, 331–32 (Tex. 2006). Sovereig n immunit y deprive s a trial court of subjectmatter jurisdiction for lawsui t s i n whi ch the state or cer tain g overnme ntal units have been sued unless the state consents to suit. See Texas Dep’ t of Transp. v. Sefzik , 355 S.W .3d 618, 620–21 (Tex. 2011) (per curia m); Miranda , 133 S.W .3d at 224. Sovereig n immunit y compels Texas courts
to defe r to the leg islature as the g ateke eper controlling when an d h ow citizens can sue their state
g overnme nt or its office rs for their officia l acts. See W ichita Falls State Hosp. v. Taylor , 106 S.W .3d 692, 695 (Tex. 2003) (noting that “the L eg islature is better suited to b al an ce the conflicting policy issues associate d with waiving immunit y ”) (citing , among other ca s es , Texas Natural Res. Conservation Comm’n v. IT–Davy , 74 S.W .3d 849, 854 (Tex. 2002)). The leg islature may consent
to suits ag ainst the State by statute or resolution, b u t “l egi slative consent to sue the State must be expressed in ‘cle ar and unambig uous lang uag e.’” IT–Davy , 74 S.W .3d at 853–54 (citing Gene ral Servs. Comm’n v. Litt le–Tex. Ins ulation Co. , 39 S.W .3d 591, 594 (Tex. 2001) and (quoting Tex. Gov’t Code § 311.034; University of Tex. Med. B r a n ch v. Y ork , 871 S.W .2d 175, 177 (Tex.1994))).

The Attorney Gene ral does not oppose the City ’s appea l and, conseque ntly , did not file an 6 appellate brief in r esponse. 9Allala’s intervention in t h e underly ing suit asser

ted a claim under PI A section 5 5 2 .321, which waives sovere ign immuni ty for requestors seeking a writ of m andamus to compel a g overnme ntal body to make information available for public inspectio n u n d er cer tain circ umstances:

A reque stor or the attorney g ener al may file suit for a writ of mandamus compelling a g overnme ntal body to make information av ai l able for public inspection if the g overnme ntal body ref

uses to r equest an attorney g ener al’s decision as provided by Subchapter G or ref

uses to supply public information or information that the attorney g ener al has deter

mined is public informa t i o n t hat is not excepted from disclosure under Subcha

pter C.

Tex. Gov’t Code § 552.321(a) (fo o t n otes omitted). Allala asser ted in her pleading that she was entitled to mandamus relief under section 552.321 beca use “[t] he City of El Paso ref used to disclose public information that the attorney g ener al has deter mined is public information that is not exempt from disclosure.” I n support of her claim, Allala alleg ed that she had reque sted cer tain documents from the City , including private emails reg arding officia l city business; the City withheld cer tain documents responsive to that reque st and soug ht an opinion from the attorney g ener al; the attorney
g ener al issued a ruling deter mining that the information was public infor ma ti o n s u b je c t to disclosure; and that instead of comply ing with that decision and producing the public information, the City filed

a suit for judicial revie w of the attorney g ener al’s opinion. As such, Allala’s pleading alleg ed fac ts that aff irmatively

demonstrated the district court’s subjec t-matter jurisdiction over her c laim. See Miranda , 133 S.W .3d at 226.

The City , howeve r, afte r deciding to disclose an d then disclosing the responsive information that it had been previously withholding, including various emails from private acc ounts that it had rec eived from private individuals, filed a plea to the jurisdiction and submitt ed evidenc e 10to controve rt the jurisdictional fac ts supporting Allala’s ma n d a mu s claim. See Miranda , 133 S.W .3d
at 227–28 (movant in plea to jurisdiction, l i k e m o v ant in summary judgme nt, must asser t and support with evidenc e that the trial court lacks subject-matter jurisdiction). The City arg ued that its voluntary disclosure of all responsive public information in its possession deprive d the district court of jurisdiction over Allala’s section 552.321 mandamus action. I n support of its arg ument, the City attache d the attorney g ener al’s opinion and three aff idavits showing how it had fully complied with the PI A and the attorney g ener al’s opinion by making available to Allala all of the public information to which it had ac cess. 7

The Ci ty ’s first aff

idavit in support of i ts plea to the j urisdict i o n wa s from El Paso Assistant City Attorney Kristen L y nn Hamilton, who testified reg arding the City ’s eff orts to comply with Allala’s informa tion request. Releva nt here , Hamilton testified that:

• Be tween rec eipt of Allala’s req u es t an d September 17, 2012, the City sear ched for all responsive documents that “we re held on the City ’s serve r” or that wer e “within the phy sical control of city employ ees and officia ls,” including “all responsive documents that wer e held on the C ity ’s s erve r . . . in the M icrosoft Outlook file of eac h of t h e re levant persons from whom the re questor wa s seeking emails;

• On S eptember 11, 2012, Hamilton “instructed e ach of the persons named in the request to g ather all responsive doc umentation that was not held on the City ’s serve r”;

• I n response to the City ’s reque st to turn over responsive d o cuments, cer tain individuals provided “e- mails tha t the y retrie ved voluntarily from their persona l e -mail acc ounts,” and those private e mails “wer e included in the [City ’s] request to the Attorney Gene ral” ;

• After rec eiving Allala’s second reque st, the City g ather ed “all responsive documents, including persona l e-ma ils that wer e, at the time of the second reque st, in the possession of the City ”;

The City filed four aff

idavits, but, as mentioned above, the district court sustained Allala’s 7 objection to Wil son’s aff

idavit. Acc ording ly and beca use the City does not challeng e this ruling on appea l, we have considere d only the three unchalleng ed af fidavits in our resolution of this appea l. 11• T he City included in its reque st for an attorney g ener al opinion the private ema i l s i t h ad

rec eived f rom various individuals;

• During the pendenc y of the City ’s suit ag ainst the attorney g ener al, the City “passe d a resolution” requiring its office rs , em p l o y ees, and volunteers to use “Cit y e-ma il addre sses to conduct all City business and to forwa rd “any corr espondenc e reg arding City business that was store d on persona l e-mail ac counts” to the e mploy ees’ City email ac count;

• Also during the pendency o f t he City ’s suit, the El Paso City Council “instructed that all documentation previously withheld, and subject to the lawsuit, was to be rele ase d to the public”;

• I n response to that direc tive, the City rele ased “eve ry document, elec tronic or tang ible, that had been located in any City serve r[] or in the possession of any employ ee or officia l [t hat] had pre viously

been w ithheld contrar

y to the deter

mination of the Attorney

Gene ral” ;

• On Aug ust 29, 2013, the El Paso City Manag er sent a letter “re questing that ea ch o f t h e rele vant persons provide any ad d it iona l [responsive] persona l e-ma ils that had not previously been tur ned over to the City ”;

• On September 16, 201 3, the City produce d the documents it rec eived in response to the Aug ust 29 letter, including emails and statement s from the targ eted individuals that no responsive pe rsonal ema ils ex isted; and

• By S ep t em ber 17, 2013, the C ity had release d to Allala all the i nformation that was in the City ’s “possession,” “custody or control,” or that it had rec eived from the named individuals.

The second aff

idavit, from the City ’s sy stem administrator, descr ibed in detail the internal sear ch for documents on the City ’s serve rs, including the Outlook mailbox es of the named individuals. The City ’s third aff

idavit in support of its plea to th e j u ri s d i ction was from its outside counsel Erin Hig g inbotham, who testif i ed that she assisted Hamilton with Allala’s reque st, including the releas e of all responsive documents that the C ity had previously soug ht to withhold. She also reiter ated Hamilton’s asser tions reg arding the City ’s reque sts to the named individuals to turn over to the City

any responsive doc uments that exi st on those individuals’ private ema il accounts.

12I n sum, the City ’s jurisdictional evidenc e established that t h e C ity sear ched

extensive l y for responsive documents, officia lly reque sted responsive documents from the individuals named in the request, and then ultimately p ro d u ce d t o Al lala all the documents that it had been able to locate a

nd obtain. We conclude that this was sufficient t o conclusively establish that the City was not “re fusing to supply public information that the attorney g ener al has deter mined is public information.” See Tex. Go v ’t C o d e § 552.321(a)

. By its plain terms, the PI A’s waiver of sovere ign immunit y for mandamus require s t h at t h e City be “re fusing ” to supply public information—her e, the private emails of others. “Refuse ” in this context means to “show or express

a positive unwillingness to do or comply with.” W ebster’s Third New Int’l Dictionary 1910 (2002) (def ining verb “re fus e” ); s ee The American Heritage Dictionary of the English Language 1478 (5th ed. 2011) (def

ining “re fuse” as “to in d i ca t e u n wi l l ingne ss to do, acc ept, g ive, or allow,” and explaining that it “implies determination”) . By compar ison, the transitive form of t he verb “fa il,” which the leg islature has used, i n simil ar context s, by itself, see, e.g. , Tex

. Occ

. Code § 2051.457 (“f ails to pay ”), or in conjunction with “re fuse,” see, e.g. , Tex. Nat. Res. Code § 134.173 (“violate s, fails, o r re fu ses to comply ”), means “to omit to perf orm” or “to leave undone.” See American Heritage Dictionary at 634. Thus, under the plain lang uag e of section 552.321’s waiver of sovere ign immunit y , a reque stor must show that the g overnme ntal body is “unwilling” to supply public information

. See Tex. Gov’t C ode § 552.321; City of Rockwall , 246 S.W .3d at 625–26 (asse rting that court s should “re ly on the pl ain m eaning of t he words, unless a differe nt meaning is supplied by leg islative definition or is a ppare nt f rom context, or unless such a construction leads to ‘ absurd results’” ); Tex. Gov’t Code § 311.011 (“Words and phrase s shall be rea d in context and construed

acc ording to the rules of g rammar and common usag e,” but “[w]ords and phrase s that have acquir ed

13a technica l or particula r meaning , whether by leg islative definition or otherwise, shall be construed

acc ording ly .”); see also Associates Fin. Servs. of Am., Inc. v. No r t h Ca r o l ina Farm Bureau Mut. Ins. Co. , 528 S.E.2d 621, 624 (N.C. Ct. App. 2000) (def ining “re fuse to rene w” as “indicating an unwillingness to rene w”) ; but see Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers , 357 U.S. 197, 207–08 (1958) (ac knowledg ing d ef i n i t ion of “re fuse,” but declining to apply wher e statute in question used the word in same sense as “fa il”). The City ’s jurisdictional evidenc e conclusively shows that it sear ched extensivel y for the reque sted information, offic ially

reque sted responsive doc uments from the targ eted and rele vant individuals

on at least two occa sions, and produce d t o Al l al a ever y responsive document that it found

or re ceive d. Our revie w of the PI A reve als no methods by which the City could compel the disclosure of public-informa tion emails located on private email acc ounts, other than what the City di d h ere —i.e., reque st the documents from the targ eted individuals and chang e the City ’s policy
reg arding public business on private emails. I n fac t, other than requiring that the g overnme ntal body “promptly produce public information for inspe ct i o n , duplication, or both,” Tex. Gov’t Code

8 § 552.221(a) , the PI A provides no g uidance reg arding the eff orts a g overnme ntal body must take to locate, secure , or m ake available the public information requested. Her e, the City ’s j urisdictional evidenc e conclusively established that it was willing to supply the reque sted information and, to the
extent that it located it or rec eived it from the individuals named in the reque st, it actua lly had done

Section 552.221 define s “promptly ” as “as soon as possible under the circ umsta nces, 8 that is, wi t h i n a reasonable time, without delay .” See Tex. Gov’t Code § 552.221(a) ; see also id. §§ 552.221(c) (re quiring notification to reque stor if information cannot be produce d within ten day s of reque st), 552.301(b) (re quiring g overnme ntal body that seeks to withhold information to reque st attorney g ener al dec ision withi n ten day s of re ceipt of r equest for information). 14so. Acc ording ly , the City asser ted and supported with e vidence that the trial cour t lacked subje ctmatter jurisdiction. See M iranda , 133 S.W .3d at 228. Once the City established that it was not “re fusing to supply public information,” the burden shifted to Allala “to sho w t hat t here is a dis puted m ater ial fac t reg arding the j urisdictional issue.” See id. Allala, howeve r, did not controve rt or object to t h e City ’s jurisdictional evidenc e discussed above; instead she responde d that her cl ai m wa s t h at the City “did not disclose all of 9 the public i n fo rm at i o n she reque sted as require d” and, there fore , she should be allowed to take “tar g eted” depositions to deter mine whether the i ndividuals named in her request had turned over responsive private emails to the City

. She also emphasized that, under L ocal Gover nment Code sections 201.005 and 201.006, any d o cu m ents responsive to her reque st are the proper ty of the City and must be turned over to the City

. See Tex. L oc. Gov’t Code §§ 201.005–.006(a)

. I n support

o f this arg ument, Allala offe red, among other items, an email from former council m em b er Steve Orteg a stating that, in response to the City ’s Aug ust 29 reque st for public information held on private email acc ounts, he will not produce any of his private emails. Allala also attache d a copy of

a newspa per article from the El Paso Times mentioning Orteg a in connec tion with Allala’s reque st:

“I gu ess they can ask me for any thing they want, but I ’m not g oing t o turn over any

thing unless there is a valid court order ,” Ortega said. “The re is the Four th A mendment that protec ts my persona l e ffe cts. Certain standa rds have to be met in order for me to turn over my persona l eff ects. When that standard is met I will turn them over.”

Allala arg ued in her r esponse a nd supported with an a ffidavit that ce rtain attac hments to 9 disclosed emails had not been produce d, but the rec ord indicates that the parties resolved this issue and that the attachme nts in question wer e disclosed. Allala does not c ontend otherwise on appea l. 15Finally , Allala attache d copies of emails from individuals na med in he r reque st tha t, she contends,

show that those individuals had not turned over all responsive documents and, thus, t h e City ’s production of responsive documents was i n co m plete. I n sum, Allala’s response established that

cer tain individuals may be in possession of emails that are resp o n s i ve to her PI A reque st, that those individuals may be unwilling to turn over those emails, and that the City has not ma de those possib l y -e x i s t i ng emails available to her. There fore , Allala continued, she should be allowed to conduct discove ry

on the issue bef

ore the City ’s plea to the jur isdiction is gra nted. Even assuming, as we must in this circ umstance, see Mir a n d a , 1 3 3 S .W.3d at 226 (re quiri n g re v i ewing court to “indulg e ever y rea sonable infere nce and resolve any doubts in the nonmovant’s favor ”), that the City has not disclosed all responsive documents that exis t—i.e., that private individuals continue to hold public information on their private email acc ounts—the bottom line for pur

poses of our a

ppellate r eview of

the City ’s plea to the jurisdiction is t hat Allala did not offe r any evidenc e, or even arg ument, to controve rt or question the City ’s conclusive evidenc e that it sear ched extensively for the reque sted documen t s , i ncluding officia lly informing eac h of the targ eted individuals that they must turn over the reque sted information to the City , and turned over all those documents to A llala. Stated another way , Allala did not raise a fac t que stion on the issue of whether the City was ref using or u n wi lling to supply the public information. The fac t that a former city councilman has public information on his private email acc ount that he has not provided
to the City , despite multipl e officia l reque sts by the City that he do so, does not ref lect that the City is unwilling to disclose that information as it is require d to do so under the PI A. See, e.g. , Thomas

v. C o r n yn , 7 1 S.W .3d 473, 486 (Tex. App.—Austin 2002, no pet.) (citing A& T Consultant s, Inc.

v. Sharp , 9 0 4 S.W .2d 668 (Tex. 1995) (holding that prede cessor statute to PI A does not require

16g overnme ntal body to prepa re or assemble new inform at i o n i n response to a reque st)); Economic Opportunities Dev

. Corp. v. Bustamante , 562 S.W .2d 266, 268 (Tex. Civ. App.—San Antonio 1978, writ dism’d) (holding that a g overnme nt ag ency could not be require d to make copies of documents

no longe r in its possession); see also Tex. Att’y Gen. ORD–555 (1990) (stating that only information in exi stence is subject to disclosure).

Allala arg ues that section 202.005 of the L ocal Gover nment Code gi ves the City a judicial means to obtain or r ecove r the priva te emails at issue he re:
(a) The g overning bo d y m ay demand and rec eive from any person any local g overnme nt rec ord in private possession cre ated or rec eived by the local g overnme nt the re moval of which w as not authorized by law. (b) I f the person in possession of a l o ca l governme nt rec ord ref uses to deliver the rec ord on dema

nd, the g overning body

may petition the district court of the county in which the person resides for the return of the rec ord. I f t h e co urt finds that the rec ord is a loca l gove rnment re cord, the court shall orde r the re turn of the r ecor d.

Tex. L oc. Gov’t Code § 20 2

. 0 0 5 (a) –(b). We disag ree . First, even an unanswe red petition to the district court would not allow the a g ency to me et the short turnaround time demanded by the PI A. See Tex. Gov’t Code § 552.301(b) (imposing ten-da y limit on reque st for attorney g ener al decision). Second, under its plain lang uag e, section 202.005 applies only wher e the local-g overnme nt r ecor d at issue was r emoved without authorization. See id. § 202.005(a) (“the remova l of which w as not authorized by law”)

. On the rec ord befor e us, there is no sug g estion that private emails responsive
to Allala’s r e q

u e st wer e remove d without authorization. Finally , even assuming that section 202.005 provides the City a means to acc es s the private emails at issue here and disreg arding any privac y issues that might arise, using it here as Allala sug g ests—i.e., either to compel the City to sue former employ ees or councilmen or to show that the City is r efusing to pr oduce the emails—would result

17in the expansion of t h e P I A’ s s p ecif ic waiver of sovere ign immunit y by g raf ting a discretionar

y L ocal Gover

nment Code provision that does not waive, or even conce rn, sovere ign immunit y . We

are not authorized or willing to do this. See Tex. Gov’t Code § 311.034 (“I n order to pr eser ve the l egi s l ature ’s interest in manag ing state fiscal matters throug h the appropr iate proce ss, a stat u t e shall not be co n s t ru ed as a waiver of sovere ign immunit y unless waiver is eff ecte d by clea

r and unambig uous lang uag e.”) ; Taylor , 106 S.W .3d at 696 (noting as settled proposition that statutory waiver of sovere ign immunit y must be by “cle ar and unambig uous expression of the L eg islature’s waiver of immunity ”). For the reasons explained, we conclude that the Cit y established as a

matter of la

w that it was not ref

using to supply p u b l i c i n formation and that Allala failed to raise a fac t issue on that point. Thus, the district court lacke d subject-matter jurisdiction over Allala’s section 552.321 mandamus claim and should have g rante d t h e C i ty ’s plea. See Miranda , 133 S.W .3d at 234 (allowing dismiss al on plea to the jur isdiction where the jurisdictional evidence is undisputed and fails to raise f

act issue) . Acc ording ly , we sustain the City ’s first issue on appe al. Having deter

mined that the district court lacke d ju ri sdiction under principles of

sovere ign immunit y , we need not addre ss the C i t y ’s re m aini ng challeng es to the district court’s denial of its plea to the jur isdiction.
Allala’s cross-point

I n a cross-point, Allala ur g es that the district c ourt’s denial of the City ’s plea to the jurisdiction was proper beca use the City withheld and continues to withhold cer tain email addre sses from public d i sclosure. But, without addre ssing or expressing an opinion reg arding whether the

18email addre sses at issue here fall under the PI A, we note that the attorney g ener al’s opinion direc ted

the City to withhold the email addre sses:

Section 552.137 of the Gover nment Code excepts from disclosure “an e-ma il addre ss of a member of the public that is provided for the pu rpose of communicating elec tronically with a g overnme ntal body ,” unless the member of the public consents to its rele ase or the e-ma il a ddress is a ty pe specific ally

excluded by

subsection (c ). Gov’t Code § 552.137(a) –(c)

. Th e e-ma il addre sses y ou have marke d, and the additional e-ma il addre sses we have marke d, are not a ty pe specific ally excluded by section 552.137(c)

. Therefore, the city must withhol d the marke d e-m ail addre sses under sec tion 552.137, unless the owners affi rmatively c onsent to their release.
(Emphasis added

. ) Gi ven this direc tive, the City cannot be said to be “re fusing to supply public information t h at the attorney g ener al has deter mined is public information.” Acc ording ly , we

overr ule Allala’ s cross-point.

Conclusion Having deter

mined that the trial court err ed by deny ing the City ’s p l ea t o t he jurisdiction and having overr uled Allala’s cross-point, we reve rse the district court’s order deny ing the City ’s plea to the jurisdiction an d re n d er judgme nt g ranting the plea and dismiss ing Allala’s c laims.

__________________________________________ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Rende red on Rehe aring Filed: Aug ust 29, 2014

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