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

NO. 03-11-00459- CV

ICON Benefit Administrator s II, L.P.; A m eric an Administrative Gr oup, I nc.; and

HealthSmar t P refer red Car e, II, L.P ., Appellan ts

v. Gr eg Abbott, At torney G eneral of Texas; and T he City of Lu bbock, Ap pellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0186 6, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

O P I N I O N

This is an appea l from an order deny ing a temporar y injunction in a suit challeng ing

an Attorney Ge n era l’s open-r ecor ds decision. The suit was initiated by appellants I CON Be nefit Administrators I I , L .P.; Americ an Admini strative Group, I nc. (A AG ); and HealthSmart Prefe rre d Ca re , I I , L .P. (collec tively the “Parker Group” ) and seeks to compel the City of L ubbock and the 1 Attorney Gene ral to withhold from public disclosure an “audit repor t” in the City ’s possession that addre sses service s provided by Parker Group entities to the City

. Following an evidentiar y hear ing, the district c ourt issued an order deny ing the Parker

Group’s application for temporar y injunction. The Parker Group filed a notice of appea l and moved for an emerg ency stay pending this Court’s resolution of its appea l. We g rante d the stay

. For the rea sons explained below, we now overr ule the Parker Group’s c ontentions on appea l, affir m the district court’s orde r, and va cate the stay

.

A re fer ence to the entities’ common owner ship or aff iliation, also used by

the par ties. 1BACK GR OUND Fr om 2004 t hroug h 2006, the City of L ubbock contra cted with two Parker Group companies—a

ppellants I CON and AAG—to provide third-pa rty administration of t he C ity ’s s elffunded health-c are p l an . The City contra cted with a third Parker Group company —appellant Hea lthSm art—to ser

ve as the City ’s “pr efe rre d provider” org anization for that same plan. During the course of the City ’s rela tionship with the Parker Group, disputes arose as to whethe r I CON and AAG had complied with their administ ra t or contra cts with the City , and the Parker Group

u l t i m ately initiated arbitra tion proce eding s to resolve the disputes. The P arke r Group also filed a rela ted defa

mation action in a Dalla s C o unty court at law ag ainst sever al of the City ’s employ ees who, acc ording to the Parker Group, had publicly and falsely acc used the Parker Group of mishandling the City ’s contra cts.

I n the Dallas defa

mation case , the City hired an expert, S al l y R eaves, to audit the administrative service s that I CON and AAG had p er fo rmed for the City ’s health-c are plans. The purpose of the audit was to deter mine whether the em p l o y ees’ alleg ed statements reg arding the Parker Group wer e, in fac t, true, and thus not actionable defa mation. There afte r, a discovery dispute

arose as t o whether Reave s could gain acce ss to cer tain Parker

Group doc uments and informa tion that wer e ostensibly nece ssary for her to conduct her audit. The Dallas County Court at L aw order ed the Parke r Group to pr oduce c erta in sensitive materials under a prote ctive order that restric ted t he use and disclosure of the m ater ials and “a ll information derive d there from.” The protective order was late r ame nded to allow the City to use the protec ted mater ials in the arbitra tion procee ding. Be fore Reave s finished her audit and repor t, the parties settled the Dallas defa mation

case , and it was dismiss ed. But the arbitra tion rema ined ong oing, and the parties to that proce eding 2disputed whether Reave s’s forthcoming audit could be used in it. The arbitra tor ruled that the City

could use the audit and issued a protec tive order that was substantially identical to the one issued in the Dallas lawsuit. The City instructed Reave s to finish her audit. Reave s later submitt ed to the City

a document dated Marc h 18, 2011, and titled “Audit of the Parker Group Administration of Be nefit Plans for the City

of L ubbock” ( Reave s Audit). I n April 2011, sho rt l y after Reave s submitt ed the Reave s Audit to the City , the City rec eived three reque sts under the Texas Public I nformation Act (PI A) t h at called for its 2 production. Concluding that the Parker Group’s interests we re i m p l i cate d, the City notified the Parker Group of the reque sts and reque sted an opinion from the Attorney Gene ral as t o wh ether the PI A require d it to produce the Reave s Audit. See Tex. Gov’ t Code §§ 552.301 (PI A provision requir i n g go v ernme ntal body that rec eives written reque st for information it wishes to withhold
to ask for decision from attorney g ener al), .305 (re quiring g overnme ntal body that reque sts decision
to notify aff

ecte d third parties that they may submit briefing t o at t o rn ey g ener al). The Attorney Gene ral deter

mined that the City was require d to rele ase the Reave s Audit beca use it was subject to mandatory

disclosure unde r the PI A. See Tex. Att’y Gen. OR2011-08928. Around this same time, the Parker Group had filed a motion in the dismiss ed Dallas defa mation suit seeking enfor ceme nt of that court’s protec tive order to preve nt p u b l ic disclosure of the Reave s Audit. The Parker Group arg ued that the protec tive order prohibited public disclosure

o f t he R eave s Audit beca use i t contained protecte d materia ls and information derive d from t h em . After a hear ing, the Dallas County Court a t L aw signe d an order in J uly 2011 decla ring that public

The PI A is codified in Chapter 552 of the Gover nment Code. See Tex. Gov’t Code 2 §§ 552.001–.353. 3discl o s ure of the Reave s Audit was not prohibited by the protec tive order and deny ing the Parker

Group’s motion. The Parker Group appea led the county court at law’s order to the Dallas Court of Appea ls. Rece ntly , that court rever sed the c ounty court a t law’s orde r, hol ding that the protective order prohibits public disclosure of the Rea ves Audit. See Icon Bene fit Admins. II, L.P. v

. Mullin , __S.W .3d__, No. 05–11–00935–C V, 2013 WL 2423171, at *6 (Tex. App.—Dallas J une 5, 2013, no pet. h.). Whil e its appea l to the Dallas Court of Appea ls rema ined pending , the Parker Group filed the underlying suit in the Travis County District Cou rt ag ainst the Attorney Gene ral and the City , seeking decla

ratory judgme nt that the Reave s Audit was protec ted from public disclosure. See Tex. Gov’t Code §§ 552.3215, .325 (P I A provision authorizing suit for decla ratory judgme nt by party seeking to withhold information from reque stor). The Parker Group also reque sted temporar y and per manent injunctions enjoining the public rele ase of the audit. The district c ourt g rante d the Parker Group’s reque st for a temporar y restra ining ord er, but afte r discovery and an evidentiar y hear ing on its application for a temporar y injunc t i o n , i s s u ed an order deny ing Parker Group’s application and dissolving the temporar y restra ining order

. I n its order , the district court stated that the Reave s Audit “is a completed repor t, audit, evalua

tion, or investiga tion made of, for, or by

a g overnme ntal body ” under PI A section 552.022(a) , that “ther e is no other law excepting the Reave s Audit from disclosure,” and that the Parker Group “fa ile d t o prove a probable rig ht of

rec overy to support” its application for temporar y injunction. I t is from this order that Parker Group now appe als. 3

See Tex. Civ. Prac. & Rem. Code § 51.014(a) (4) (per mitti ng interlocutory appea l of 3 district court’s g rant or de nial of an a pplication for tempor ary

injunction). 4DISCUSSIO N The Parker Group bring s six issues on appea l. I n four of the six issues, it challeng es the district court’s decision to deny the temporar y injunction, principally arg uing that it has shown a probable rig ht to relief

. I n its rema ining two issues, the Parker Group challeng es evidentiar y ruling s made by the district court during

the tempora

ry -injunction hear ing.

Tem porary injunction

A temporar

y injunction is an extraordinary reme dy that does not i ssue as a matter of rig ht. Butnaru v. Ford Motor Co. , 84 S.W .3d 198, 204 (Tex. 2002). The purpose of a temporar y injunction is to prese rve the subject matter of the litigation pending a trial on the m er i t s . Id

. To

o b t ain a temporar

y injunction, the applicant must plead and prove three elements: (1) a cause of action ag ainst the defe ndant; (2) a probable rig ht to the relief soug ht; and (3) a probable , imminent, and irrepa rable injury in the interim. Id. Whether to g rant or deny a temporar y injunction is within the trial cour

t’s sound discretion. Id. Only the sec ond element is implicated in this appea l. Be cause the decision to g rant or deny a temporar y injunction lies withi n t h e sound discretion of the trial court, we will not disturb that decision absent a clea r abuse of discretion. See id. We must not substitut e our judgme nt for that of the trial court unless the trial court’s action

was so arbitra

ry that it e x cee ded the bounds of rea sonable discretion. Id. We r eview the evidenc e befor e the trial court in the light most favor able to the court’s ruling , draw all rea sonable infere nces from the evidenc e, and defe r to the trial court’s re s o l u t i o n o f conflicting evidenc e. See Davis

v. Huey , 571 S.W .2d 859, 862 (Tex. 1978); INEOS Grp. Ltd. v. Chevron Phillips Chem. Co., L.P. , 312 S.W .3d 843, 848 (Tex. App.—Houston [1st Dist.] 2009, no pet.). A trial court does not abuse

5its discretion if it hear d conflicting evidenc e, and evidenc e ap p ear s in the rec ord that rea sonably

s u p ports the trial court’s decision. See Butnaru , 84 S.W .3d at 211; Davis , 571 S.W

. 2 d at 8 6 2 ; INEOS , 312 S.W .3d at 848. A t rial court abuses its discretion in gra nting or deny ing a t empora ry injunction when it misapplies the law to the esta blished fac ts. See State v. Southw estern Bell Tel. Co. , 526 S.W .2d 526, 528 (Tex. 1975). The Texas Public Inform ation A ct The Texas L eg islature enac ted the PI A with the expre s s p u rpose of providing the public “complete information about the aff airs of g overnme nt and the officia l acts of public officia ls and employ ees.” Tex. Gov’t C o d e § 5 5 2 .001(a) ; Jack son v. State Office of Admin. Hearings , 351 S.W .3d 290, 293 (Tex. 2011). The PI A is aimed at prese rving a funda m ental tenet of repr esenta tive democr acy : “that the g overnme nt is the serva nt and not the master of the people,” Tex. Gov’ t Code § 552.001(a) ; Jack son , 351 S.W .3d at 293, and ref lects the public policy that the people of Texas “re main[] informed so that they may reta in c ontrol over the instruments they have

cre ated,” Tex. Gov’t Code § 552.001(a) ; see Jack son , 351 S.W .3d at 293. To advanc e these policy g oals, the L eg islature has direc ted that we liberally construe t h e P I A i n fa vor of disclosure of reque sted information. See Tex. Gov’t Code § 552.001; Jack son , 352 S.W .3d at 293. The PI A g uara

ntees acc ess to “public information,” subject to cer tain ex ce p t i o ns. See generally Tex. Gov’t C ode §§ 552.001–.353. “Public information” is define d within the P I A

as “informa tion collecte d, assembled, or maintained under a law or ordinanc e or in connec tion with the t ransa ction of official business” by or for a g overnme ntal body

. Id. § 552.002(a)

. There is no dispute t h at t h e R ea v es Audit is “public information” under the PI A. As such, it is subject to

6public disclosure under section 552.021 unless it qualifies fo r one of the exceptions to disclosure

provided in subchapte r C of the PI A. See Tex. Gov’t Code §§ 552.101–.153 (subcha pter C, titled “I nformation Excepted F rom Required D isclosure” ). The exceptions “ embra ce the under standing that the public’s rig ht to know is tempere d by the individual and other interests at stake in disclosing the information.” Texas De p’t of P ub. Safety v. Cox Tex. Newspapers, L.P. , 343 S.W .3d 112, 114 (Tex. 2011). But the PI A also g ener ally excludes cer tain cate g ories of public information—ca lled “cor e public information”—f rom the exceptions, unless the information is made ex p re s sly confide ntial under other l aw. See Act of May 25, 1999, 76th L eg ., R.S., ch. 1319, § 5, 19 9 9 T ex. Gen. L aws 4500, 4501– 0 2 (cur rent version at Tex. Gov’t Code § 552.022) (her einaf ter cited as “F ormer Tex. Gov’t Code § 552.022”) (providing mandatory disclosure for cer tain cate g ories of documents unless they are “expressly confide n t i al under other law”) ; Cox , 343 S.W .3d at 114 4 (desc ribing cate g ories as “cor e public information”)

. Of particu l ar re l ev ance here , “a completed repor t, audit, evalua tion, or investiga tion made of, for, or by a go v er n m en t al body ” is one of the
cate g ories of “ core public information.” See For mer Te x . Gov’t Code § 552.022(a )(1)

. Probable right t

o relief The Parker Group urg es that the district court abused its discretion in concluding that they had failed to show a probable rig ht to relief , i.e., a likelihood of preva iling on its claims that

We cite to the 1999 version o f PI A section 552.022 beca use that is the version that was 4 in eff ect when the PI A reque st was made in this case . See Ac t o f M ay 2 8 , 2011, 82d L eg ., R.S., ch. 1229, § 2, 2011 Tex. Gen. L aw s 3271 (making amendments applicable to reque sts for information re ceive d on or af ter Sept. 1, 2011). The 2011 chang es to subsection (a ) provided tha t core public information was not excepted from disclosure “unless made co nfidential under this chapte r or other

law.” See id. 7the Reave s Audit is shielded from disclosure under the PI A. See Butnaru , 84 S.W .3d at 204 (noting

that applicant for temporar y inj u n ct i o n m u st show a probable rig ht to relief ). To that end, they principally challeng e the district court’s underly ing finding that the Reave s Audit is a “complete d” audit under PI A section 552.022(a) and, thus, core public information. Specifica lly , they insist that (1) the Reave s Audit is not a “complete d” audit under the P I A and, there fore , is not “cor e” public information that must be produce d reg ardle ss of any applicabl e P I A ex ceptions; and thus (2) the Reave s Audit is excepted from disclosure under PI A section 552.107(b) beca use “a court order has prohibited disclosure of

the information.” 5 The Parker Group place s g rea t emph asi s on what they believe to be err oneous comments on the rec ord by the district court to the eff ect that a “complet ed ” audit require s only fac ial completene ss. Howeve r, any such views expressed by the district court wer e not ref lected in any finding s or conclusions and, conseque ntly , ar e n o t m at er ial to our revie w. See Cherokee W ater Co. v

. Gregg Cnty. Appraisal Dist. , 801 S.W .2d 872, 878 (Tex. 1990) (holding that judge ’s
comments prior to judgme nt wer e not finding s of fac t); Texas Bd. of Chiropractic Examrs. v. Texas Med. Ass’n , 375 S.W .3d 464, 482 n. 24 (Tex. App.—Austin 2012, pet. denied) (noting that judge ’s explanatory letter to parties does not impact the standard or scope of appellate revie w). I n any event,

we would aff

irm the district court’s rig ht result even in the fac e of its wrong leg al explanation. See Bec k v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C. , 284 S.W

. 3 d 4 1 6 , 4 4 2 (Tex. App.—Austin 2009, no pet.) (noting that a trial court does not a buse its disc retion if it r eac hes the rig ht r esult for

The Parker Group does not asser t that the Dallas protec tive order would shield the Reave s 5 Audi t from disclosure in the event the district court proper ly deter mined it to be core public information. We express no opinion as to whether it would. 8the wrong rea son (citing Donaldson v. Barr , 86 S.W .3d 718, 720 (Tex. A pp.—Houston [1st Dist.] 2002, no pet.)). I nstead, the appropr iate focus is on whether there is evidenc e that supports the district court’s finding that the Reave s Audit was “complete d.” See Butnaru , 84 S.W .3d at 211(“The trial court does not abuse its discretion i f s o me evidenc e rea sonably supports the trial court’s decision.”)

. T h e P ar ker Group urg es that the evidenc e neg ates “complete ness” beca use the copy of the Reave s Audit in dispute omits a “De tailed Finding s of Claim s Au d i t ,” which the document indicates was intended to be attache d as an appendix. The Parker Group thus sug g ests that

a “complete d” audit under PI A section 522.022 is an audit that contains all its component parts—i.e., is “whole.” I n contra st, the Attorney Gene ral and the City imply that a “complete d” audit is one that has been finished or broug ht to an end, such that the copy of t h e R ea v es Audit in dispute may be “complete ” even i f t he af oreme ntioned appendix was omitted. Consequently , we must confr ont a threshold issue of statutory construction—i.e., in w hat sense did the L eg islature use “complete d”? Be cause the PI A does not define “complete d,” we must look to its plain and ordinary meaning

. See Presidio Indep. Sch. Dist. v. Scott , 309 S.W .3d 927, 930 (Tex. 2010). To do so here ,

we beg in with the word’s usag e within the rele v an t PI A provisions. We find it signific ant that the L eg islature used “complete d” in section 552.022 rathe r than “complete .” See Tex. Gov’t Code § 522.022(a) (1). “Completed,” as it is used in section 552.022, is the past-par ticiple form of the verb “complete ,” which primarily means “bring to an end.” S ee W eb ster’s T hird New Int’l Dictionar

y 465 (def ining the verb “complete ”), 1646 (def ining “par ticiple”), 1653 (def

ining “past participle” ) (2002) ; see also Tex. Gov’t Code § 311.011(a) (Code Construction Act provision requiring that “[w]ords and phrase s shall be rea d in context and construed acc ording to the rules of g rammar 9and common usag e”)

. Past participle s such as “complete d” usually have a passive meaning

. See

W ebster’ s at 1 6 5 3 (noting that past participle forms of transitive verbs usually have passive meaning s); see also id. at 465 (noting that “complete ” is a transitive verb ). I n compar ison, the adjec tive “complete ” primarily means “possessing all nece ssar y p arts, items, components, or elements: not lacking any thing nece ssary

”—i.e., “entire ” or “whole” —while its seconda ry meaning is “broug ht to an end or t o a fi n al or intended condition: conclude d.” See id. (def ining adjec tive “complete ”). Thus, a “complete d audit” d en o tes an audit that has been broug ht to an end and a “complete audit” would be a whole audit or the entire audit. Acc ording ly , under the plain terms of PI A section 552.022, an audit is core public information if it has been, simply stated, finished. See id. at 853 (def

ining “finish” as “bring to an end”)

. And while a “complete d” audit may also be “complete ”—as in containing the whole or entire—it is not require d to be so under the plain terms of section 5 5 2

. 0 2 2 (a). Simi larly , beca use section 552.022(a) compre hends the possibili ty that a “co m p l eted” (finished) audit may nonetheless not be “complete ” (a whole copy ), the fac t that an audit is not “complete ,” while perha ps capa ble of supporting an infere nce that the audit has likewise not been “ completed,” would fall short of c onclusive evide nce of that fac t. The evidenc e prese nted to the district court in connec tio n wi t h the temporar y injunction included testimony from Reave s, the author of the audit, that she had been reta ined in the Dallas defa

mation case to audit the Parker Group’s administration of the City ’s healthca re plan, that she cre ated the Reave s Audit, a nd that she submitt ed it to the City on Marc h 18, 2011, in w hat she considere d to be a completed form. Specifica lly , she descr ibed the Reave s Audit as her “fina l audit repor t” and also aver

red that “base d on [her] education, training , and experience ,” the Reave s Audit “is final, compl ete, statistically reliable , and was done in acc ordanc e with acc epted industry 10standards and methodology .” The copy of the Reave s Audit that was admitted into evidenc e under

s ea l is dated Marc h 18, 2011, and has Reave s’s signa ture on the front pag e under “P re p ar ed an d Submit ted by .” I n the introduction, the audit explains, “This repor t prese nts [t he auditor]’s finding s of a detailed revie w of The Parker Group’[s] administration o f the City of L ubbock medical, pharma cy and dental plans

. . . . ,” and “sets forth [t he auditor]’s conclusions and observa tions derive d from the revie w of the available information.” The evidenc e in the rec ord also includes documentation showing that the City of L ubbock , which hired Reave s to conduct the audit, considere d the Reave s Audit to be completed.

The Parker Group emphasized in its evidenc e to the district court that the audit was missing cer

tain components. F irst, as descr ibed ea rlier, the ta

ble of c ontents for the Reave s Audit ref ere nces an appendix titled “De tailed Finding s of Claims Audit,” but the pag e listed is essentially blank except for the words “APPENDI X - DETAI L ED FI NDI NGS OF CL AI MS AUDI T.” Nothing else match i n g t he descr iption of the appendix is attache d to the audit. The Parker Group further p rese nted leng thy testimony from a cer tified public acc ountant that the Reave s Audit was not a completed audit beca

use, g ener ally stated, the appendix was not attache d and the audit did not meet

acc ounting industry standards for audits. I t should be noted here , howeve r, that Reav es t es t ified that she was not an acc ountant. Finally , the Parker Group elicited a sti p u l at i o n from the attorney repr esenting the City that the Reave s Audit rema ined an o n go i n g conce rn in the arbitra tion proce eding s and that the City continued to reque st documents rela ted t o the subject matter of the Reave s Audit a fter the Dallas case had conclude d. But while these circ umstances—i.e., a missing appendix, failure to me e t acc ounting standards, and continued expansion and use—may be probative

11of whether the Reave s Audit is “complete d” under the plain lang uage o f t h e P I A, they are not

singula rly dispositi ve of w hether

the Reave s Audit was broug ht to an end or c oncluded. Viewing the evidenc e in the light most favor able to the district cour t’ s r u li n g , d raw ing all leg itimate infere nces from the evidenc e, and defe rring to the district court’s resolution of the conflicting evidenc e, we conclude that the evidenc e befor e the district court supports its deter mination that the Reave s Audit was completed a n d , th u s , c o re public information under the PI A. Although the Parker Group’s arg ument reg arding the m issing appendix has s o m e i ntuitive appea l and, as sug g ested, may be probative of whether the audit was “complete d,” there is evidenc e in the

re co rd t o s upport the di strict court’s conclusion that the R eave s Audit was finished or concluded. Fur ther, while it may be true that profe ssional acc oun t i n g s t an d ards require more than what the Reave s Audit offe rs and t h at fa ct may be probative of the audit’s state of completion (and competency ), a non-conf

orming audit could still be conclude d, espec ially g iven the evidenc e that Reave s was n o t an ac countant subject to those profe ssional standards and that she had finished it

acc ording to other applicable standards. For essentially the same rea sons, the evidenc e that the City and Re av es co n t i n u ed to work on the Reave s Audit afte r Marc h 18, 2011, in connec tion with the arbitra tion proce eding is likewise not dispositi ve of whether the Reave s audit is a “complete d” audit. I n s u m , althoug h there is evidenc e that Reave s continued to work on the Reave s Audit afte r Marc h 18, 2011, that the audit was missing contents as of Marc h 18, 2011, and that t h e au d i t did
not meet profe ssional acc ounting standards, there is some evidenc e that the Reaves Au d i t was finished as of March 18, 2011. As such, t he dis trict court’s conclusion that the R eave s Au d i t is a “complete d” audit is s u p p o rt ed by the evidence. See Butnaru , 84 S.W .3d at 211 (“The trial court does not abuse its discre tion if some evidence rea sonably supports the trial cour

t’s decision.”)

. 12The district court’s conclusion that the Reave s Audit was a “c ompleted audit”

meant that it was core public information under PI A section 552.022(a) (1). Core public information
cannot be withheld from disclosure unless other law expli citly makes the information confide ntial. See For mer Tex. Gov’t Code § 552.022(a ). The Parker Group does not urg e any other basis for withholding it. Acc ording ly , the dis t ri ct court’s conclusion that the Parker Group was not likely
to preva il on its claim was not arbitra ry or unrea s o n ab l e and was not made without ref ere nce to g uiding rules and principles. See Butnaru , 84 S.W .3d at 211; Davis , 571 S.W .2d at 862; INEOS , 312 S.W .3d at 848.

We overrule the Parke r Group’ s first, second, third, a nd fifth issues.

Evid entiary r ulin gs

The Parker Group’s rema ining appellate issues challeng e the district court’s decision
to exclude two g roups of documents from the evidenc e submitt ed at the temporar y -injunction hear ing. The first g roup co n s i s t s o f a letter from the L ubbock City Attorney , Amy Sims , to the arbitra tor in the contra ct dispute reg arding the need for documents to complete the Reave s Audit and

sever al notices of subpoena from the City to third parties seeking documents rela ted to matters at issue in the Reave s Audit. The Parker Group contends that these documents, which wer e all

cre ated afte r Marc h 18, 2011, prove that the Reave s Audit was not “complete d.” The second g roup includes Sims ’s deposition testimony and an annotated co p y of the Reave s Audit in which Sims acknow ledg es, acc ording to the Parker Group, that the Reave s Audit may be protec ted by the Dallas protec tive order . Acc ording to the Parker Group, this second g roup of e x cluded documents prove that the Dallas pr otective or der ba rs disclosure of

the re port.

13Stan dard of rev iew We revie w a trial court’s decisions rega rding the admission of evidenc e for an abuse of discretion. See Cit y of Brownsville v. Al varado , 897 S.W .2d 750, 754 (Tex. 1995). The
test for abuse of discretion is whether the trial co u rt ac t ed wi thout ref ere nce to any g uiding rules

or principles. E.I. du Pont de Nemours Co. v. Robinson , 923 S

. W.2d 549, 558 (Tex. 1995). An appellant must show t h at : (1) the t rial court err ed in not admitting the evidenc e; (2) the ex cluded evidenc e was controlling on a materia l issue dispositi ve of the case and wa s n o t cumulative; and (3) the err or in the exclusion of the evidenc e probably cause d the rendition of an improper judgme nt. Texas De p’t of Transp. v. Able , 35 S.W .3d 608, 617 (Tex. 2000).

Evidence that the audi t was n ot “com pleted” Assuming witho ut deciding here that the district court err ed in excluding the first g roup of documents—i.e., the Sims letter and the subpoena—a nd even further assuming that these excluded documents would have shown that Reave s continued to work on the audit afte r Marc h 18, 2011, we would still not reve rse the district court’s decision here beca use the Parker Group has failed
to show that the err or was harmful. See id. First, the excluded evidenc e here is cumulative of other evidenc e in the rec ord. For example, Reave s testified that she had been reta ined to conduct the same audit in the arbitra tion proce eding s. Fur ther, the City stipulated, in response to the Parker Group’s eff orts to g et these documents admitted, that there was an o v erla p of issues betwee n the Dallas litigation and the arbitra tion proce eding s, that the overla p included the subject matter of the Reave s Audit, and that there was ong oing discovery in the arbitra tion proce eding s that direc tly rela ted
to the issues in the Reave s Audit. Second, even if the excluded evidenc e had not been cumulative,

14our re v i ew o f the district court’s decision to deny the Parker Group’s application for temporar y injunction require s us to revie w the evide nce submitted in the lig ht most favorable to its decision, draw all leg itimate infere nces from the evidenc e, and to defe r to the court’s resolution of conflicting evidence. See Davis , 571 S.W .2d at 862. As discussed above, there is evidenc e sup p o rt i n g the conclusion that the Reave s Audit was “complete d.” Thus, even if the excluded evidenc e conclusively established that the Reave s Audit was used, chang ed, and expanded in connec tion with the arbitra tion proce eding , it would not aff ect our revie w of the district court’s decision to deny the temporar y injunction based on its conclusion that the Reave s Audit was “complete d.” Acc ording ly , the Parker Group was not harme d by the dist ri ct co u rt ’s exclusion of this evidenc e. See Able , 35 S.W .3d at 617.

Evidence that the Reaves Audit w as subject to th e Dallas protective order The Parker Group asser

ts that it was err or for the district court to exclude the second g roup of documents—i.e., Sims ’s testimony and the annotated Reave s repor t–—beca use this evidenc e would have established that the City considere d the Reave s Audit confide ntial and subject
to the Dallas protec tive order

. But, ag ain assuming that the d i s t ri ct court err ed in excluding this evidenc e and that it proves what the Parker Group say s it p ro v es , we would not reve rse the district court’s decision here beca use, as the Parker Group acknow ledg es, this issue would only be of import if the Reave s Audit is not core public information u n d er t h e PI A. Given that we have deter mined that the district court did not err in concluding that the audit was completed, the Reave s Audit is core public informa t i o n an d, as a result, the Parker Group could not be harme d by the exclusion of this evidenc e.

15We overrule the Parke r Group’ s fourth and sixth i ssues.

CONCLUSION Having overr

uled the Parker Group’s i s sues, we aff irm the district court’s order deny ing the Parker Group’s application fo r temporar y injunction and vacate the emer g ency stay previously

instit uted by

this Court.

__________________________________________

Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Aug ust 22, 2013

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