Affirmed and M ajority and Concurring Opinion s filed October 1 2 , 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00111

- CV

PATRICK WALSH , Appellant

V.
TEXAS DEPARTMENT OF STATE HEALTH SERVICES , Appellee

On Appeal from the 261st District Court

Trav is County, Texas T rial Court Cause No. D

- 1

- GN

- 18

- 000603

M AJORITY OPINION Appellant Patrick Walsh appeals fro m a final summary judgment d eclaring th at certain death recor ds Walsh sought are protected from disclosure under the Texas Public Information Act

. See Tex. Gov’ t Code Ann. § 552.001 et seq

. Concluding that the trial cour t did not err when i t granted a ppellee Texas Department of State Health Services ’ ( “ DSHS ” ) motion for summary judgment and denied Walsh ’ s, we affirm.2 B A CKGROUN D
The facts are undi sputed. In 2017 , Walsh requested several c ategories of information related to all deaths in Texas in 2016 and 2017 up to the date of his request to DSHS (the “ 2017 Request ” )

. Th e categories were : (1) the d ecedent ’ s first and last name, (2) the dec ede nt ’ s street address, (3) the d ecedent ’ s city, state, and Zip Code , (4) the d ecedent ’ s date of birth, (5) the d ecedent ’ s date of death, (6) the d ecedent ’ s cause of death, and (7) the d ecedent ’ s gender.
DSHS released some of the information

. Specifically, DSH S relea sed the first and last name, date of death, a nd gender of all decedents . DSH S refused to release the address, date of birth, and cause of death of the decedents

. DSHS took the position that this in formation was con fidential and prote cted from di s c losure unde r s ection 552.115 of the Texas P ublic Information Act

. DSHS then asked the attorney general , pu r s uant to section 552.301(a) of the Texas Public Informa tion Act , for a ruling on whether the wit h held information was subjec t to disc losure to Wal s h

. T he atto rney general subsequen tly issued a letter ruling , stating that DSHS must release the w ithheld informa t i on

. Tex. Att ’ y Gen. OR2018

- 00468 , at 2

. The letter ruling also provided that it was “ li mited to the par ticular information at issue in this reque st and l im ited to th e facts as present ed to us; therefore this ruling must not be relied upon as a previous d etermination regarding any other information or any other circum s tanc es. ” Id

. at 3.
DSHS filed suit against the attorney general under sectio n 552. 324 of t he Texas Pub lic Informa tion Act challeng ing the attorn e y genera l ’ s letter ruling

. Walsh intervened. Beyond filing an answer, the attorney general took no further action as the de fendant in the trial court. 1

1 On appeal, the attorney ge n eral is ser ving as co unsel for D SHS , but the a ttorney general is not a party,3

Both DSH S and Walsh agree d that t he only issu e in dispute, whether the withheld informa t ion was subject to release unde r the Texas Public Informa tion A ct , presented a legal issue

. B oth Walsh and DSHS moved for summary j udgment

. After hearing argument on the cross
- mot ions fo r summary jud gmen t , the trial court granted DSHS’s motion a n d den ied Walsh’s motion, declar in g that the withheld information , specifically the records of Texas decedents’ addresses, dates of birt h, and causes of death, we r e protected from disclosure b y Sect i on 552.115 of the Texas Public Informa tion Act

. T h is appeal followed.
A NALYSIS 2

W alsh brings five issues on appeal arguing that the trial court erred when it granted DSHS ’ s motion fo r summary judgment and denied his ow n. Walsh also bring s a si x th, contingent iss ue , asserting that the trial court erred w h en it denied his request for attorne ys ’ fees.
I. Standard of rev iew and applicable law There are no disputed facts in this case , ins tead the issue before us is the application of the Texas Vital Stat istics Act, the Texas Public Informa tion Act , and related regulations to those un d isputed facts. These are que stio ns of law we re view de novo. Worsdale v. C ity of Killee n , 578 S.W.3d 57, 66 (Tex. 2019). As a result, this dispute was ripe for resolu t ion by summary judgm ent. See Rudisill v. Arnold White & Durkee, P.C. , 148 S.W.3d 556, 559 (Tex. App.

— Houston [14th Dist.] 2004, no pe t. ) (citing Gramercy Ins . Co

. , Inc. v. Auction Fin. Program , Inc. , 52

2 The Supreme Court of Texas order ed the Th ird Court of Appeals to transfer this case to this court

. See Tex. G ov’t C ode Ann. § 73.001 . Under the Texas Rules of App ellate Pro cedure,

“ the court of a ppeals to which the case is transferred must decide the case in accordance with the pr e cedent of the transferor court under principles of stare decisis i f t he transfer ee court ’ s decision otherwise would have been inconsistent with the precedent of the tran sferor cour t. ” Tex. R. App. P. 4 1.3. We are unaware of any conflict between the T hir d Court of Appeals precedent and that of this court on any relevant is sue.4

S.W.3d 360, 363 (Tex. App.

— Dallas 2001, p e t. denied ) ( “ I n this case the parties do not argue that a material question of fact exists which should have precluded

summar y judgment

. Instea d, the issues presented invo lve the proper construction of a specific statu tory provision , and application of that provis i on to the undisputed facts of this case. ” ) ). We review a trial cou rt’s order granting a traditional summary judgme nt d e novo. Mid

- Ce ntury Ins. Co. v. A demaj , 24 3 S.W.3d 618, 621 (Tex

. 2007). When both parties mo v e for summary judgment, each party bears the burden of establ ishing that it is entitled to judgment as a matter of la w. City o f Garland v . Dallas Morning N ews , 22 S.W.3d 351, 356 (Tex. 2000 ). When the trial court g rants on e motion a nd denies the other, t he appellate court reviews both mo tions a nd determines all qu estions presented. Id. The reviewing court

s h ould then render the judgment that the trial cou rt should have rend ered , or

revers e and rem and if neither pa rty met its summar y judgment burden

. Id. This appeal also requires us to revie w the trial court’s in terpretation and application of various statut es . Statu tory int erpretatio n presents a questi on of law subje ct to de novo review. Cadena Com m ercial USA Corp. v. Texas Al coholic Beverage Comm ’

n , 518 S.W.3d 318 , 325 (Tex. 2017)

. Our f u ndamental goal when

r eading statut es is to ascertain and give eff ect to the l egislature ’ s intent

. Id. at 326

. T o do this, we look to and rely on the plain meaning of a statute ’ s words as expressing legislative intent unless a different meaning is supplied, is apparent from th e c ontext, or the plain meaning of the words leads to ab surd or nonsensical results. Id. We presume the l egislature chooses a statute ’ s language wit h care, including each word chosen for a purpose, while purposefully omitting words not chosen. Id. In t hat vein, we take statutes as we find them and refrain from rewriting the l egislature ’ s text. Id. Put differently, our objective is not to take definitions and mechanically tack them together ; rather, we cons ider the context5

and framework of the entire s tat ute and meld its words into a cohesive reflection of legislative intent. Id. Still, we are concerned with the definitions of the specific words because they provide the material that is refined with statutory context. Id. The definitions of some ter ms are either provided by the l egislature or clear based on their c ommon usage and meaning. Id. For others, we must look to the statutory context to provide meaning. Id.
Section 552.1 15 of the Texas P ublic Information Act add resse s t he confidential ity of death records. See Tex. Gov’t Code Ann. § 552. 1 15 (a) . It provides that a death r ecor d i s public information availab le to the public o n or after the 25th anniversary of the date of de ath as shown on the death record filed with the vital statistics uni t or a local registration official. Id. at § 552. 1 15 (a) (2)

. The statute further pr o vide s t hat a “ general death index ” maintained by the vital statistics unit is pub lic information that is ava ilable to the publ ic to the extent the record relates to a dea th record that is public information and available to the public as provided in sectio n 55 2. 1 15 (a) (2)

. Id. at § 552. 1 15 (a) ( 3 )

. Finally, the statute states that a “ summary death index ” is “ publ ic informa tion and available to the p ubli c. ” Id. at § 552. 1 15 (a) ( 4 )

. Pursuant to Chapter 191 of the Vital Statistics Act, DSHS is responsible fo r

co ll e cting, recording, transcribing, comp iling , and preserving all vital s tatis ti cs. Tex. Health & Safety Code Ann. § 191.002

. The statute also requires per sons with information related to a death to supply that information to DSHS “ on a form provided by t he department o r on the original certificate. ” Id. at § 191.0 24

. Th e statute further provides th at “ informat ion required on a certificate must be written legibly in durable blue o r black ink or may be filed and registered by photographic , el ectronic, or ot h er means as prescribed by [DSHS]

. ” Id. at § 191.0 2 5(d). DSHS i s also empowered to adopt rul es for c ollecting, recording, transcribing, compiling,6

and preservin g vi tal statistics

. Id. at § 191.00 3(a)

. The Texas Administrative Code contains th e rule s f

or c ollecting, recording, transcribing, compiling, and preserving vi tal statistics . It defines “ v ital s tatistics ” as “ the registration , preparatio n, transcription , collection, compil ation, distribu tion and preservation of data pertaining to

. . . d eath s

. . . and such other data as deemed necessary by [DSHS ]. ” 25 Tex. Admin. Code § 1 8 1. 1(34).
C hapter 193 of the Vital Statistics Act is titled “ D eath Records. ” I t specifi es the information and procedures r equired for death certificates. It also s peci fi e s that information on death certificates related to the location of a decedent ’ s remains is pub lic information. Id. at § 19 3 .00 1 ( c ) & (d)

. Section 193.002 specif i es that the person in charge o f interment o r rem oval of a body must “ file the [de ath]

cer ti f icate electronically as specifi ed by the state registrar. Id. at § 19 3 .00 2 ( 4 )

. II
. DSHS was not prohibited from seeking a decision from the a ttorney g eneral because there had been no previous determination on the precise information Walsh sou ght in his 2017 R equest
. Walsh , citing sectio n 5 52.301(f) of the Texa s Government Code , argue s in his first issue that (1) DS HS was prohibited from asking the a ttorney g e neral for a letter rul ing on his 201 7 R equest be cause there had been a previous decis ion on the

“ precise categories of i n formation ” include d in that reques t , and (2) the trial court should have granted his summar y jud gment on th is basis. See Tex. Gov’t C ode Ann. § 552.301 (f

)

. Section 552.301(f) provides : A governmental body must release the re q uested information and is prohibited from a sking for a decision from the att orney general about whether infor mation requ ested under this chapte r is within an excep tion under Subchapter C if: (1) the governmental body has previously requested and
rec eive d a determination from the attorney general co ncerning the precise info rmation at issue in a pendin g request; and7 (2) the attorney general or a court determined that the information is public informatio n under this chapter that is not excepted by Subc hapt er C. I d. DSHS respon d s that it was not prohi bi ted from seeking a ruling from the attorney general bec ause th ere had been no previous determination “ concerning the
p rec ise information at issue ” in Walsh ’ s 2017 R e quest. We agree with DSHS.
Walsh ’ s ar gume nt rests entirely on his con tention that the final judgment in trial court cause number D

- 1

- GN

- 11

- 001290 qualified as a “ pr evious determinatio n ” under section 552.301 (f) because a previous determination on the precise information withi n th e meaning of se ct io n 552.301 means the precise category of information , not the precise pi ece of information in the earlier ruling

. 3 Walsh t hen cit es t hree appellate cases wh ich he c ontends support his argument.
The f irst two cases cited by Walsh involve dispute s b etween the Houston Chro nicle and the City of Houston over w h ether the City of Houston ’ s police records, parts of wh ich were refer red to as the “ police blotter , ” we re subje ct to release to the public pursuant to the Texas Op en Record s Act, the predecessor t o the Texas Public I nformation Act

. In Houston Chronicle Publishing Co. v. City of Ho uston , the First Court of Appeals held that certai n portio ns of those records w ere

“ a va ilable to the press and pu blic under the Open Records Act. ” 531 S.W. 2d 177, 1 88 (T ex. C iv. App.

— Housto n [1st Dist.] 1975 ) , writ ref ’ d per c uriam , 536 S.W.2d 559 (Tex. 1976) ( collectively “ Chronicle I ” )

. In City of Hou ston v. Houston Chronicle P ublishin g Co. , th e Houston Chronicle once again sought release of inf

ormation contained in th e City of Houston ’ s polic e records

. 673

3 In cause num ber D

- 1

- GN

- 11

- 001290 , the attorney general previously determined that some of the requested information must be released. Tex. Att ’ y Gen. OR201 1

- 0 4 298 , at 4

. The attorney general also stated, “ This letter ruling is limited to the particular information a t issue in this request a nd limited to the facts as presented to us; therefore, t his ruling must not be relied upon as a previous dete rm ination regarding any other info1mation or any other circ um stances. ” Id. The tria l court , however, ruled that all of th e requested information must be released

.8

S.W.2d 316, 317 (Tex. App.

— Houston [1st Dist.] 198 4, no w rit) ( “ Chron ic le II ” )

. I n Chro n i c le I

I , t he City of Houston refu sed to r elease the requested inform ation , incl uding the inf

o rmation t hat the Houston Chroni cl e asserted had been previously determined t o be public information in Chron icle I

. I d. at 318

. Our sister court stated that “ th e decis ion in C hronicle I determin ed the k ind of informat ion in the H ouston Police Records which is ‘ pu blic information. ’ ” I d. at 323

. It then h eld that the City of Houston was required to immediately disclose th ose part s of the

r equested records that ha d been determined to be public in f ormation

. Id.
Th e final case cite d by Walsh involved a dispute over whether the colle ge
t ra nscripts of certain school district administrators were subject t o public disclosure under the O pen Records Act. Houston Chron icle Pu bl ’ g Co. v. Mattox , 76 7 S.W.2d 695, 6 9 7 (T ex. 1989). The actu al issue to be re solved by the Tex as S upreme Court was “ wh ether the Attorney General of Texas can ent e r int o, and a district judge render , an agreed order that prohibits the Attorney Gene ral fro m issuing a decision u nder the O pe n R ecords Act. ” Id. The Co urt held that “ while it is possibl e that the legisla ture m ay decide to exempt such transcripts from disclosure under the Open Records Act, the A ttorney General must appl y the law as it is curren tly written. He may n ot refuse to fu lfill his duties in o rder to see what the legislature might do. ” Id. a t 698. In r eaching this decisi on, the Court observed that the Open Records Act does not require a previous determination on the specific p ie ce of i nformation ; it allows the Attorney Ge neral to explicitly refuse to rende r a decision if he decid es that a previous det er mination has been made regard ing the category of information to which the request belongs. The Attor ney Ge neral ’s refusal to ren der a d ecision is subject to review by the c ourts on an abuse of discretion sta ndard. Id.
In Walsh ’ s view, the collective i mp ort of these cases is t h at “ a previous9

determination on the preci se information w ithin the meaning of section 552.301 does not me an th e precise piece of inf or ma tion , r ather, it mean s the pre ci se categor y of information. ” Based on this a nalysis , Wa lsh argues that the 201 1 final judgment in cause number D

- 1

- GN

- 11

- 001290 addressi n g similar death rec ords for years 2009 and 2010 qualif ies as a previous dete rmination under section 552.301(f) of the Te xas Public Informa t i on A ct which thereby prohibited DS HS from seeking

an opin ion from the a ttorney g eneral on the 2017 Request

. Further, while t he legislature has made attorney general decisions an integ ral part of the open government provisions relating t o public information in Government Code cha pt er 552 , w e k n o w t h o s e decisions are not binding on the judiciary

. In recognition of that significant, but limited role , t he Th ird Court of Appeals and the F irst Court of Appeals both give “ due consideration ” and “ great

w e igh t ” to such decisions. See, e .g. , Rain bow G r p. , Ltd. v. Tex . Emp ’ t Comm ’ n , 897 S.W.2d 946 , 949 (Tex. App.

— Austin 19 9 5 , writ denied ) , Housto n Indep. Sch. Dist. v. Ho uston Chronicle Publ ’g Co

. , 798 S.W. 2d 580, 588 (Tex. App

. — Houston [ 1st Dist. ] 19 90 , writ denied ) ; City of Houston v. Hou ston Chro nicle Publ ’ g Co. , 673 S.W. 2 d 316, 322 (Tex. App

. — Houston [ 1 st Dist. ] 1984 , no writ )

. O pen Records Decision N umber 673 address es previous determination s in part as follows:
We believ e there are only two instances in which a previ ous determination under section 552.30l(a) exists. The first and by far the
mos t common instance of a previous determination pertains to specific inform ation that is again requ ested from a governmental body wh ere this office has previously issued a decisio n that evaluates the pub lic availability of the precise information or records at issue. This first instance of a previous determination does not apply to records that are subs tantially similar to records prev iously submitted to this office for review, nor does it apply to inform ation that may fall within the same category as any giv en records on which this office has10

previously ruled. The first type of previ o us determin ation re quires that all of the following cri teria b e met:
1. the records or information at issue are precisely the same records or information that were previously submitted to this office pursuant to section 552.30l(e)(l)(D) of the Government Code; 2. the gover nmental body which received the re que st for the records or information is the same governmental body that previously requested and received a ruling from the attorney general; 3. the attorney general's prior ruling concluded that the precise records or inf

ormation are or are not excepted f rom disclosure under the [Te xas Public Information] Act; and

4. the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling. 6

. . . .

6 A gove rnmental body must make an initial finding that it in good faith reasonably believes the requested information is excepted from disclosure. Open Records Decision No. 665 at 3 (2000). A governmental body should request a decision from this office if it is u nclear to the governmental body wh ether there has been a change in the law, facts, or circumstances on which the prior decision was based.

Tex. Att ’ y Gen

. OR D

- 673 , at 6

– 7 (2001). We conclude that this first type of previous of determina tion de s c ribed in ORD

- 673 is applicable to this case , and we we also conclude that abo v e
- quoted portion of ORD

- 673 is a correct interpretation of Government Code cha pt er 552

. Because none of W alsh ’s cited cases address th e publi c nature of death records u nder the Texas Publ ic Informa t i on A ct , we conclude tha t the ca s es are11

distinguishable and d o not cont rol the out come here. I n addition, we conclude that Walsh ’s expansive view of what qualifies as a previous determination render s the legis lat ure ’s use of the phrase “precise information at issue in the pendin g req uest ”

me ani ngless. This we cann ot do. “ Precise ” is defined as “ exactly defined or stated

. ” Merria m
- Webster Di ctionary New Edition 565 (2004). Thus, the preci se info rmation at issue in the pe ndin g request are de ath records for the years 2016 and 2017

. Tex. Att ’ y Gen

. OR D

- 673 , at 6

– 7 (2001). Walsh has not poi nted out any
pr evious de terminatio n f or death inform ation for those years. Therefore, we conclude that (1 ) DSHS was not prohibi ted from seeking an opi nion from the

a tto rney g eneral , and ( 2) th e trial court did no t err when it denied Wal sh ’s motion for summary judgment t o the extent it was based on this ground. We overrule Walsh ’ s first issue

. III. Res J udicata and collateral es to ppel do not bar DS HS ’ s cl aims.
In his sec ond issue Walsh ar gues the d octrine s of res j udicat a and collateral

e stoppel bar DSHS from re

- litig at ing the 2011 trial co urt judgment r eferenced above. A mong other arguments, DSHS responds that neither applies be cause W alsh did no t estab lish the required elements for eith e r de fense

. For res judicata to app ly, a party must establi sh the following ele me nts: (1) a prior final judgment on the me rits by a court of com petent juris d i c tion; (2) iden tity of the p a rties o r tho se in privity with t hem; and (3) a secon d action based on th e same cl aims that were raised o r could have been raised in the first ac tion

. T ravelers I

n s. Co. v. Joachim , 315 S

. W

. 3d 860, 86 2 (Tex. 2010)

. C ollateral

e stopp el, also known as issu e preclu sion, prevents a p arty fr om relitigating an i ssue it previou sly l itigated and lost

. Calabrian Co rp. v. Alliance Specialt y Chems., Inc. , 41 8 S. W.3d 154, 158 (Tex. App.

— Houston [14th Dist.] 2013, no pet.)

. To prevail on his assertion of colla teral estoppel , Walsh must estab l ish : ( 1) the facts sought to12

b e litigated in t he second action were fully and fairly litigated in the first action; (2) th e facts were essential to the judgment in the first action; and (3) the par ties were

cas t as adversaries in the fir st action. Id.

B oth re s judic ata and collateral esto ppel a re a ff irmative defense s a nd t he part y assertin g t hem has the burden of plea ding an d pr oving the m. Id. Both res judicata and collateral estoppel re quire that the same c laim or facts be at issue in both act ions. As expl ained above, the fac ts or claims at is su e in the 2011 trial court ju dgme nt , whether death record s f or 2009 and 2010 we re subject to public disclosure , are not the same as the facts at issue in the present litigation , death records for 2016 and 2017. There fore , the trial court did not err w he n i t rejected both defenses

. We o verrule Walsh ’ s sec ond is sue.
IV. The trial c ou rt di d not err in its application of section 552.115 o f the Texas Public Informa tion Act. Walsh argues in his fo urth and fi fth iss ues tha t the trial court erred when it
gra nted DSHS ’ s motion for summary judgment and denied his own be cause it (1) misapp l ie d section 552.115 of the Texas Public Informa t i on Act , and (2) allowed DSHS to exceed its authority by exp andin g the types of death reco rd s that are excepted from public dis closu re

. DSHS responds that neither allegation supports a

re versal of the trial co urt ’ s summary judgment.
Walsh initially assert s that “ section 552.115 simply does not appl y to the requested data ” and he was entit led to summary judgment on that basis. W a lsh

s upports this assertion by arguing that the informati on he reque st ed in his 2017 R equest is not a “ death record , ” which he contends a re li mited to “ disc rete and distinct documents , ” such as death c ertific ates

. In Walsh ’ s view, the exception to the public n ature of “ death record s ” found in s ection 552. 115 of th e Texas Public Informa t i on Act “ was to p rotect official documents that have significant legal13

consequences

—

not to p rotect the data pe r se. ” DSHS responds tha t Walsh s eeks

an “ unreasonably narrow defin iti on of death records ” tha t is tied t o an “ arb it rary, antiquated concept ” that ignores the fact that most vital statistics information , including information rel ated to deaths, is data f iled electronically by different
pe ople, including funeral directors , medical examiners, and phy sicians. DSHS
goes on to argue that death records are not limited to physically

- filed “ discrete and distinc t documents

. ” As a resu lt of this broader de finitio n of death records , DSHS
argu es tha t much of the information Walsh so ugh t in his 2017 Request is except ed from publi c disclosure for 25 years and the trial court did not err when it granted its motion for summary judgment an d denie d Walsh ’ s. Exercising it s rule

- making a uthority, DSHS defin ed “ death records ” as

“ records gov erning deaths and fetal deaths filed pur suant t o the Texas Vital Statistics Act. ” Id. at § 1 8 1. 1( 7 ). Records is not de fined in the Texas Public Informa t ion Act n or in the Vital S ta tistic s Act. We therefore look to its co mmon and ordinary meaning , which i s a written account of proceedings, know n facts

a bout a person , or “ a collec tion of information (as in a database) tr eated as a unit. ” Merria m
- Webster Di ctionary New Edition 604

. Nothin g in t his definition limit s

re cords to only a death certificate as Wa lsh argues. Our conclusion that Wa lsh ’ s defini ti on is too limited is reinfor ced by the legi slature ’ s defini tion of “ public informa tion

. ” Wh en it defined “ public information ” and the “ me d ia containing public information , ” the legi s l a ture cast a b road net. It s pecifi ed that “ public informa tion ” includ es “ information that i s written, produced, collected, assembled, or maintained under l aw or ordinance or in connect ion with the trans act ion o f official business. ” See Tex. Go v’t Code Ann. § 552. 02(a). The le gis lature also determined that “ pub lic in format io n ” applie s to any electronic communic ations created, transmitted , received, or maintained on any device if the co mmunication is14

in connect i on with the transaction of officia l business

. ” Id. at § 552. 02(a

- 2 )

. Finally, the legis lature determi ne d that the f orms i n wh ich the media cont aining public information exists includes , in part, books, paper s , letters, docu ments , emails, electronic comm u nica tions, microfilm, and voice, d ata , or video representations held in computer memory. The legislature determine d that “ a death record is public informat ion

. ” 4 Id. at § 552. 115(a)(2). Because it is public information , we conc lude that death recor ds m a y take any form recogni zed by the legislature. Therefo re, limiting death records to only death certific ate s as Wal sh
sugge sts would be contrary to the legis lature ’ s intent. See B racey , 417 S.W.3d at 103 (stating that our primary goal when interpreting s t atutes is to g ive effect to the le gislature ’ s intent )

. In addi t ion , Wal sh ’ s proposed limit ation of death rec or d s to onl y death certificates such that the cer tificate i tself is excepted from public disclosure but the individ ua l decedent ’ s data contain e d on that certif icate i s not , d efi es common sense and the entire lo g ic behind generally exce p ting de cedent informat io n f rom public discl osure for 25 years. See Cos grove v. Cade , 468 S.W.3d 32, 38 (Tex. 2015) ( “ The Ca des ’ assertio n that secti o n 13 .002 only provides the m with notice of the deed ’ s existence and not the deed ’ s contents defies common sense and c lashes with

o ur precedent that mineral interes t owners bear a high duty of due diligence to prot ect their mineral interests. ” ) ; Best v. Fa l con Rock Cmty. Ass ’ n , I n c. , No. 14

- 17

- 00052

- CV, 2018 W L 4139092, at *4 (Tex. App.

— Houston [14th Dist.] Aug. 30, 2018, no pet.) ( me m. op.) ( “ It defies common sense to define the [statu tory ] term builder to include a licens ure requirement that l egally does n ot exist in Texas. ” ).

4 The le gislature then generally limite d public acc ess to that public information for 25 year s

. Tex. Gov’t Code Ann. § 552.115(a)(2)

. In addition, the legislature als o carved out a n exception f

or death records related to unidentified dece dents , whic h become av ai lable one year after the date o f death. I

d. This exception is not at issue in this case

.15

I n addition, adopting Wa lsh ’ s proposed defin ition making a ll death information filed with DSHS except the a ctual death certificate subject t o immediate public disc losure , would render the legislature ’ s express creation o f a summary d eath index , which is public informa t ion , superf luous

. See Tex . Gov’t Code Ann. § 552.115 (a) (4) ; City of Da llas , 463 S.W. 3d at 5 7 (statin g that courts should “ eschew construction s of a sta t ute that would render any statutory language meaningle ss o r superf l uous ” )

. Walsh also arg ues in his fourth and fi f th issues that DSHS exceeded its statutory and rulemaking authority w hen it dete rm ined that some o f the infor matio n he included in his 2017 Request was e xcepted from public disc losure

. 5 In Walsh ’ s view, this allowed DSHS to amend the Texas Public In forma tion Act and expand the death in fo rmation consi dered con fidential

. Ba se d on this, Wa lsh argues that the trial court erred when it granted DSHS ’ s motion for summary judgment and denied his ow n.
Des pite Walsh ’ s arguments to the contra r y, a n exam ination of the Texas Public Information Act e stablishes that it was th e legis latu re , not DSHS , which establish ed the initial c onfidential nature of death records in Texas. In section 552.115, the legislature established th at death records were generally e xce pted from publ ic disclosure f

or 25 years. See Tex. Gov’t Code Ann. § 552.115 ( a) ( 2) (stating that a death record maintained by DSHS is public infor ma tion excepted from public disc l osure until o n or after th e 25th anniversary of the date of death )

. It t hen created an except ion to that general rule for a summary death inde x
. Id

. at § 552.115 (a) ( 4 ) ( statin g that a summary death index is public information and available to the public). The legis l ature did not def ine summary death index. As

5 As mentioned above, DSHS released the first and last name , date of death, and ge nder for all d ecedents. I t refused to release the address, date of bi rth, and th e cause of death of all dec edents

.16

mentioned abov e , the legislature em powered DSHS to adopt ru l es for c ollecting,

recor ding, trans cr ibing, compiling, and preserving vi tal statistics

. Tex. Health & Safety Code Ann. § 191.00 3(a)

. Based on that a uthority, DSH S e nacted a rule for summary death indexes. Se e 25 Tex. Admin. Code § 1 8 1. 23(c)(3)

. This r ule
p rovides that a summa ry death in de x “ shall be prepa red by event year, in alphabetical order by surname of the regis t r ant , followed by any given nam es or in itial s, the date of the e vent, the county of occurre nce, and sex of t he r e gistrant. ” Id. Far fr om making this informatio n con fident ia l, this rule excepted the specified death information from the general rule of confidentiality for death records during th e in itial 25

- year confident ial period established b y the le gislat ure. Having addressed and reje cted Walsh ’ s arguments ra ised in his f ou rth and fifth issues, we overrule the m.
IV. We need not reach W alsh ’ s third and sixth issues on appeal
. In his third iss ue, Walsh argues the t rial court erred when it granted DSHS ’ s moti on for summary judgment be cause DSHS did not prove as a matter o f law that he was not a “ p roperly qualified applicant ” under section 191.051 of the Texas Vital Statistics Act. See Tex. Heal th & Safety Code Ann. § 191.051 ( s t ating that

“ subject to department rules contr olling the a ccessibility of vital rec ords , ” DSHS

s hall supply a certified copy of a requested death rec ord to a “ properly quali fied
ap plicant ” ). Because Walsh did not allege t hat he was a properly qualified applicant, and DS HS did not move for summary judgment on th e ground t h at Walsh was no t a qualifi ed applicant, we conclude we need not reach this issue. See Tex. R. App. P. 47.1 ; Lewis v. Nolan , 105 S .W.3d 185, 189

– 90 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied) (s tating summary judgment can only be affirme d on ground s ac tuall y raise d in the mo ti on ).

F inally , in his sixth issue, Walsh argues that if we reverse the trial c ourt ’ s17

judgment in favor of DSHS an d render judg ment in his favor, he is enti tled to attorney s ’ fees pursuant to section 552.323 of the Texa s Public Information Act

. B ecause w e have affirmed the summary judgment in favor of DSHS, we conclude we need not reach this contingent issue. See Te x. R. App. P. 47.1

. C O NCLUS I ON
Hav ing overrule d Walsh ’ s iss ues necessary to re solve his ap peal , we affir m the tri al court ’ s fi nal summary ju dg ment.

/s/ Jerry Zimmerer Justice

Panel consists of Justices B ourliot, Zimm erer, and S pain ( Spain, J., concurring)

.