### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00547
- CV

San Jacinto River Authority, Appellant

v. Ken Paxton, Attorney General of Texas, Appellee

FROM THE 419TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 000887 , THE HONORABLE CHAR L ES R. RAMSAY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
The San Jacinto River Authority ( SJRA ) appeals the trial court’s order grant ing the Attorney General’s plea to the jurisdiction in a case involving the Texas Public Inf ormation Act ( P I A). See generally Tex. Gov’t Code §§ 552.001

– . 353. The SJRA filed this lawsuit seeking declaratory relief from compliance with the Attorney General’s decision that certain documents must be disclosed pursuant to a PIA request

. See id. § 552.324 ( autho ri zing suit by governmental body against Attorney General regarding PIA decision ). W e will affirm the trial court’s order

.
B ACKGROUND On Septem ber 18, 2017, the SJRA rec eived a PIA request from Keaton Fuchs seeking communications discussing “water pre

- rel eases before Hurricane Harvey between August 20, 2017 and September 18, 2017” and “decision

- making about water releases be tween” those same dates

. On the same day the SJRA received a PIA request from Charles McFarland seeking documents related to the SJRA ’ s flood

- management plan for Lake Conroe in place at the2

time of the releases of water between Augu st 28 and September 7, 2017 and any “ res ervoir release forecast models ” for the lake for the past five years . The SJ RA determined that certain informati on r esponsive to each request was statutorily excepted from disclosure and sought decision s from the Attor ney General o n the respective requests

. See id. § 552.301 ( outl ining procedures for go vernmental body to r equest decision from A ttorney General about whe ther

r equested information falls within statutory exce ption). Per the affidavit of an SJRA representative,
t he SJR A “ deposited in the ma il ” each of its two requests for Attorney G eneral decision s on Octo ber 2, 2017. See id. § 552.301 (b) ( governmental bod y must requ est A t torney General deci sion no later than tenth business day after date of rec eiving request).

On November 8 , 2017 , t he Attorney General issued a decision on the McFarland

r equest determining that the requested information was not subje ct to disclosure under sections
55 2.101 and 552.103 of the PIA. See T ex. Att ’ y Gen. OR2017

- 25558 (2017) ; see also Tex. Gov ’ t Cod e §§ 552.101 ( excepting from disclosure information “ con sidered to be confidential by law ” ) ,

. 103 ( excepting from disclosure in forma tion “ relating to litigation ” in wh ich state or political subdivision is or may be a party ). On December 17, 2017 the A tt or ney G eneral issued a decision on the Fuchs request determining that the SJRA had failed to timel y submit its request for a deci sion and that, therefore, the information must be disclosed. See Tex. Att ’ y Gen. OR2017

- 28225 (2017) ; see also Tex. Gov ’ t Code § 552. 302 ( providing that if governmental body fails to make timely request for Attorney General decision, “ the i nformation r e qu ested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information ” )

. In the Fuchs decision, t he A t torney General concluded, “ [a]lthough you assert the submitted in forma tion is excepted u nder section 552.1033

of the Gover nment Code, we find you have failed to establish a compell ing reason to address your claim under this exception. ” See Tex. Att ’ y Gen. OR2017

- 28225 (2017).

Believing that the Attorney General erred in it s timeliness d eter mination on the Fuch s request, the SJRA ’s general counsel, Mitchell Pa ge, contacted the A t torney General ’s office and spo ke with Jesse Harvey from the Open Records Division

. In his affidavit attached to the
SJRA ’ s res ponse to the A t torne y General ’s plea to th e j urisdiction, Page aver red the following:

I contacted Mr. Harvey by telephone and explained to him that Section 552.308 of the Texas Government Code allows timeliness to be establish ed by either the postmar k OR other proof est ablis hing the request was t imely mailed, and that another request for decision mailed at the same time [the McFarland request] was deemed timely. Given these circumstances, Mr. Harvey invited the SJRA, on behalf of the Attorney General’ s Office, to submit a req uest for reconsiderati on of the timeliness of its request for decision to Mr. Fuch’s Public Information Act request. I did so on December 28, 2017. I also understood this to mean the SJRA’s 30

- day deadline to file suit following a decision by the Att orney General had not yet b egun to run because the Attorney General invited the SJRA to request reconsideration of its decision. Had Mr. Harvey advised me either that the attorney general would not consider the SJRA’s request for recons ideration OR that, n otwit hstanding his request to submit a request for reconsideration, his office would take the position that its request that the SJRA request reconsideration would not affect the deadline for the SJRA to oppose the Attorney General’s ob viously incorrect ru ling, the SJRA would have f

iled this lawsuit immediately after the Attorney General’s initial rejection of the SJRA’s request.
On February 6, 2018 , the A t torney General sent correspondence to the SJRA stating , “ S e ction 552.301(f) of the Government Code prov ides that a government al body is prohibited from asking for a reconsideration of the attorney general ’ s de cision. [ C itation om itted

. ] Therefore, unless you file a timely challenge in district court, you must c omply with O pen4

R e cords Let ter No. 2017

- 28 225. ” See Tex. Gov ’ t Code § 552. 3 0 1(f)

. 1 On Febr uary 23, 2018 , the SJRA fil ed this lawsuit , seekin g a declaration under the PIA and the Uniform Declaratory Judgment s Act (UDJA) that it is not required to disclose the in fo rmation request ed by Fu chs

.
DISCUSSIO N We review the trial court’s ruling on the Attorney General’s plea to the jurisdiction de novo. See Houston Belt & Terminal Ry. Co . v. City of Houston , 4 87 S.W.3d 154, 160 (Te x. 2016).
Timeliness of the SJRA ’

s suit In his plea to the j urisdiction, t he Attorney General contend ed that the thirty

- day deadline to file suit in section 552.324 of the PIA is jurisdictional and because the SJ RA missed the deadline, the trial court did not have subject

- matter jurisdiction o ver the PIA clai m . We agree with th e Attorney General.

Section 552.324(b) provides:
(a) The only su it a governmental body may file seeking to wi thhold information from a requester is a suit that:

1 Secti on 552. 3 0 1 (f) pro vides, in re levant part,
A g o ver nmental body must release the r equested inform ation and is pro hibited from asking for a decision from the attorney general about whether information requested u nder this chapter is within an exception under Sub chapter C if . . . the gov ernmental body ha s previously requested and received a determination from the attorney general concerning the precis e information at issue in a pending request[.]

T ex. Gov ’ t Code § 552. 3 0 1(f).5 (1) is filed in a Travis County district court against the attorney general in a cc ordance with Sectio n 552.325; and (2) seeks declaratory relief from compliance wit h a decision by the attorney general issued unde r Subchapter G

. (b) The governmental body must bring the suit not later than the 30th calendar day after the date the government al b od y receives the deci sion of the attorney general determining that the requested in formation must be disclosed to the requestor. If the governmental body does not bring suit within that period, the governmental body shall comply with the decision of t he a tt orney general. If a governmental body wishes to preserve an affirmative defen se for its officer for public information as pro vided in Section 552.353(b)(3), suit must be filed within the deadline provided in Section 552.353(b)(3).
Tex. Gov’t Code § 552. 32 4 (emphas es added)

.

The Texas Supreme Court has determined that when , as h ere , the defendant is a governmental entity, “a statutory prerequisite to suit, whether administrative (such as filing a charge of discrimination) or procedural (such as ti mely f iling a lawsuit) is jurisdictional.” Prairie View A&M Univ. v. Chatha , 381 S. W.3 d 500, 515 (Tex. 2012) (citing with approval Jones v. State Bd. of Educator Certification , 315 S.W.3d 237, 240 (Tex. App.

— Austin 2010, pet. denied ) , whi ch held that plai ntif

f’ s failure to file s uit for judicial review against agency within thirty days
p rov ided in APA deprived trial court of jurisdict ion) ; see also Tex. Gov’t Code § 311.034 (“Statutory prerequisites to suit, including the provision of notice, are jurisdict ional re quirements in all suits against a governmental entity.”); Chatha , 381 S.W.3d a t 5 12 (construing term “statutory prerequisite ” in Government Code section 311.034 to mean “statutory provisions that are mandatory and must be accomplished prior to fili ng sui t” ). In light of t he Chatha holding, we conclude that the statutory prerequisit e i n PIA section 552.324 that a governmental bod y file suit seeking declaratory relief from an Attorney General decision on a PIA request within thirty days of receipt of that de cision is jurisdi ctional. See Tex. Gov’t Code § 552.324(b);6

Chatha , 381 S.W.3 d a t 515. Thus, the SJR A ’ s failure to file its origi nal pe tit ion within thirty days of receiving the Attorney General ’ s decision d eprived the trial court of juris diction over th e PIA claim

. No n eth eless, t he SJRA rejoin s that the effective “decision” her e

— that which started the thirty

- day clock run ning

— was not the December 12 , 2017 decision (OR2017

- 28225) but the February 6, 2018 letter informing the SJRA that it was “ proh i bi ted from asking for a reconsideration of the attorney general ’ s decision. ” The SJRA contends that the December 12 de cision wa s not the “ final ” one due to the Attorney General ’ s office “ inviting ” the SJRA to seek reconsideration of the timeliness i ssue a nd , therefore, the Feb ruary 6 letter was the “ final determination ” about whether the SJRA must disclose th e information Fuchs requested

. However, section 552.324(b) refers to the date the governmental body receive s “ the decision of the attorney gene ral de te rmining that the req uested information must be disclosed to the
req ue st or. ” I

d. § 552.324(b) (emp hasis added)

. T he February 6 let ter can not reasonably be characterized as “ the decision determining that the r equested i nformation must be disclosed ” becau se it did not make any refer ence to disclosure of the information . Rather, it constituted post

- decision corr e sp ondence merely inform ing the SJRA that it was prohibited from asking for a reconsiderat ion

.

Because the SJRA did not file its origi nal pe ti tion within 30 days of re ceiving the
At torney General ’ s December 12, 2017 deci sion (OR 2017

- 28225) , the trial court properly granted the Attorney General’s plea to the jurisdiction on the SJRA ’ s PIA claim

.
The SJRA ’

s UDJA claim The Attorney Genera l also s ought to dismiss the SJR A ’ s UDJA cla im for lack of subject

- matter jurisdiction, contendin g that by the claim the SJRA sought relief redundant7

to that provided by its PIA claim

. See McLane Co. v. Texas Alcoholic Beverage Comm’n , 514 S.W.3d 871, 877

– 78 (T ex . App.

— Austin 2017, pet . denied) (concluding tha t trial court did not have jurisdiction o ver UDJA claims where pl aintiff already had “statutory channel by which to obtain the relief it seeks,” i.e., relief in form of compelling disclosure of public infor ma tion via PIA’s writ of mandamus procedure); Poole v. Karnack Indep. Sch. Dist. , 344 S.W.3 d 440, 445 (Tex. App.

— Au stin 2011, no pet.) (“When a s tatute provide s an avenue for attacking an agency order, a declaratory

-

judgment action will not lie to pr ovide re dundant remedies.”); se e also City of El Paso v. Heinrich , 284 S.W.3d 366, 370

– 71 (Tex. 2 009) (holding that UDJA “does not enlarge a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not alter a suit’s underlying natu re”); Te xas Liquor Control Bd. v. Canyon Creek Land Corp. , 456 S.W.2d 891, 895 (Tex. 1970) (“As a general rule, an action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between th e same p arties in which may be ad

judicated the issues involved in the declaratory action.”).
Because the law is settl ed on the unavailability of a UDJA claim to confer jurisdiction on a trial court when a statute provides an other avenue for the same re lief , we conclude that the trial cou rt properly granted the Attorney General’s plea to the jurisd iction on the SJRA ’ s UDJ A claim. See, e.g. , McLane Co. , 514 S.W.3d at 877

– 78.

The SJRA ’

s estoppel argument
The SJRA contends that, even if the thirty

- day fi li ng r eq uirement is jurisdiction al and the effective decision is the December 12 , 2017 one, the Attorney General is esto pped from contending that the lawsuit was not timely filed due to his “ improper and inequitable conduct. ”
T he SJRA arg ues that the Atto rney G en eral (1) improperly deter mined tha t its request for an
open - records decisi on was untimely and (2) compounded the error by “invit ing ” it to submit a8

request for reconsideration of the timeliness of its request for a decision, on which it “ r elied to its de tr iment.” T o support its e stoppel argument, t he SJRA relies on the affidavit of Page

.

“As a genera l rule, a court cannot a cquire subject

- matter jurisdiction by estoppel.” Wilmer

- Hutchins Ind ep. Sch. Dist. v. Sullivan , 51 S.W.3d 293, 294 (Tex. 200 1) (pe r curiam) ; see Nevitt v. Wil son , 285 S.W. 1079, 1084 (Tex. 1926) (“Jurisdiction as to subject

- matter does not exist by agreem ent, but by virtue of the Constitution and such valid statutes as may be enacted relat ing to the subject.”). In Sullivan , th e Texa s Supreme Court held that a school district’s alleged “misleading” of its former employee

– plaintiff as to the availability of or necessity to exhaust administrative remedies did not “confer jurisdiction on a court where none exists otherwise.” Sulli van , 5 1 S.W.3d at 295 (“Even if the District misled Sullivan as she claims, her failure to exhaust her administ rative remedies is f atal to her action.”); Janik v. Lamar Consol

. In dep. Sch.
Dist. , 961 S.W.2d 322, 324 (T ex. App.

— Houston [1st Dist.] 1997 , pet

. d enied) ( holdi ng that , while alle gations that school district failed to inform plaintiff of requirement to exhaust administr ative remedies “ might have created a fact issue on estoppel, such a dispute cannot confer jurisdiction on a trial court ” ); Daniel v . Dallas Indep. Sch. Dist. , 351 S. W.2d 356, 358

– 59 (Tex. App.

— El Paso 1961, writ ref’d n.r.e.) ( rejecting plaintiff’s argumen t that school district was estopped from asserting lack of jurisdiction for failure to exhaust administrative remedies by telling h im that “there was nothing more fo r him to do” ) ; see also Jones , 3 15 S.W.3d at 243 (rejecting plaintiff’s argument that agenc y’s public

- meeting notice extending deadline for its action on his motion for rehearing also extended deadline for fi ling petition fo r review)

. In the ab senc e of an y auth ority providing an ap plicable exception to this general rule, we decline to hold that the trial court acquired jurisdiction over this dispute by estoppe l , and we o verrule the SJRA ’ s estoppel issue.9

The SJRA ’

s “ compelling r eason ” argument Lastly, t he SJRA contends that even if th e trial court did not have jurisdicti on over the PIA claim , the court was nonetheless required to consider whether a “compelling reason ” exists for the S JRA to withhold disclosure of t he requested documents. See Tex. Gov’t Code § 552.302 ( providing that i f no timely open

- records decision is r eq uested, information is presumed to be subject to disclosure unless there is “ compelling reason ” to w ithhold it). We disagree.

The SJRA ’ s argument that it is entitled to a judicial declara tion that the document s are not subject to disclosure due to a “compelling reason” is merely another reason it advances in support of its declaratory

- j udgment action against the Attorney General, for which sovereign immunity is waived only as prescr ibed by section 5 5 2.324. See id. § 5 5 2.324

. We have already determined that the trial court did not have jurisdiction over t he SJRA ’ s request f or

a declaratory judgment, whether brought under the PIA or the UDJA . Accordingly, whatever

reason the SJRA ad vances for why th e documents are not subject t o disclosure is an issue outside the jurisdiction of the trial court and this Court, on this record

. Cf. Paxton v. City of Dal las , 509 S.W.3d 247, 259 (Tex. 2017) ( co nstruing term “ compelling reason ” in case where governmental b ody missed ten

- day deadline to request Attorney General decision , but timel iness of PIA suit was not in issue ); Doe v. Tar rant C ty. Dist. A t t orney ’ s Office , 269 S.W.3d 147, 153 (T ex. App.

— Fort W orth 2008, no pet. ) ( considering governmen tal body ’ s “ compel lin g rea son ” argument in context of review of denial of mandamus petition filed by r equestor af ter govern mental body refused to disc lose rec ords despite missing ten

- day deadline to request Attorne y General decision and records thus being presumed to be pu b lic )

.10 CONCLUSION Having overr uled the SJRA ’ s issues, we aff irm the trial court ’ s order granting the Attorney General ’ s plea to t he jurisdiction.

______________________________________ ____ Thomas J. Baker, Justice Before Justices Goodwin, Baker, and Triana Affirmed Filed: August 22, 2019