### 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. 03-18-00298- CV
Appellan ts Susan Lewi s King and Au stin King, M.D. // Cross-A ppellan t K en P axton, Attor ney Ge neral of Texas

v. Appellees, K en P axton, Attor ney Ge neral of Texas; and The City of Ab ilene, Texas //

Cross-A ppellees, Su san Lew is King and Austin King, M.D.

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 6-0 0116 0, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

C O N C U R R

I N G A N D D I S S E N T I N G O P I N I O N

Be cause I would aff

irm the t rial court’s summary judgme nt ruling that cer tain portions of the audio rec ording s during the time period that Mrs. King phy sically was outside of her home wer e subject to disclosure under the Public I nformation Act, I respe ctfully d issent to the portion of this Court’s judgment that de termined other wise. As fra med by the C ourt’s o p inion, the di spositive question is whether Mrs. King ’s location during that time period was a “private space ”—“a location in which a person has a
rea sonable expectation o f p ri v acy .” See Tex. Occ

. Code §§ 1701.661(f) (prohibiting law enfor ceme nt ag ency from rele asing any portion of rec ording made in “priva te space ”), 1701.651(3) (def ining “ private spa ce” ). The Court’s opinion chara cter izes Mrs. King’ s location at that time as her “front porch” and relies on the “curtilag e” of a home under Fourth Amendment jurispru d enceto con cl u de that a “porc h” is a “priva te space ” for purposes of section 1701.661(f) of the Texas

Occ upations Code. But t h e Four th Amendment is conce rned with unrea sonable sear ches and seizures in t h e cr i m i n al law context, not the disclosure of information under the PI A. See U.S. Const. amend. I V (“ The rig ht of the people to be s ecur e in their persons, houses, papers, and eff ects, ag ainst unrea sonable sear ches and seizures, shall no t be violated, and no Warrants shall issue, b u t u p on probable cause , supported by Oath or aff irmation, and particula

rly descr ibing the place to be sea

rche d, and the pe rsons or thing s to be seized.”). “We

. . . reg ard the are a ‘immediately surrounding and associate d with the home’—wha t our case s call the curtilag e—as ‘par t of the home itself for Fourt h A me n d me nt purposes .’” Florida v. Jardines , 569 U.S. 1, 6 (2013) (empha sis added)

. “The ‘basic purpose of this Amendment’

. . . ‘is to safe g uard the privac y and secur ity of individuals against arbitrary invasions by governm ental officials .’” Carpenter v. United States , — U.S.—, —, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523, 528 (1967)) (empha sis added) ; see Jardines , 569 U.S. at 6 (“A t the Amendment’s ‘ver y core ’ stands ‘the rig ht of a man to retre at into his own home and there be fr ee fr om unreasonable governm ental intrusion .’”) (empha sis added)

. Neither party sug g ests that “unre asonable g overnme ntal intrusion” was involved he re.

Moreove r, “the Four

th Amendment protec ts people, not pl ac es . ” Carpenter , 138 S. Ct. at 2213 (quoting Katz v. United States , 389 U.S. 347, 351 (1967))

. “[ T ] h e Fo u rt h Amendment cannot be translated into a g ener al constitutional ‘rig ht to privac y .’” Katz , 389 U.S. at 350. Yet, the major ity

attempts to do just t hat her e by incorporating F ourth Amendment conce pts

2into the statutory definition of “priva te space ”—a place

. See id. at 351 (denounc ing “ef fort to decide whether or not a given ‘are a,’ viewed in the abst ra ct , i s ‘constitutionally protec ted’” ); see also id.
at 350 (re cog nizi n g that Four th Amendment “prote cts individual privac y ag ainst cer tain kinds of g overnme ntal intrusion, but its protec tions g o further , and often have nothing to do with privac y at all”). Thus, I

find the majority ’s re liance on the criminal conc ept of “ curtilag e” to be imprudent. I would apply the plain meaning o f t h e statutory definition of “priva te space ” to Mrs. King ’s undisputed location at the time of the audio rec ording s. See Presidio Indep. Sch. Dist.

v. Scott , 309 S.W .3d 927, 9 3 0 (Tex. 2010) (“We thus construe the text acc ording to its plain and

common meaning unless a contra ry intention is appar ent from the context or un l ess such a construction leads to absurd results.” (citing City of Rockwall v. Hughes , 246 S.W .3d 621, 625–26 (Tex. 2008))) ; see a l s o Tex. R. Civ. P. 166a(c ); University of Tex. Sys. v. Paxton , No. 03-14-00801- CV, 2017 Tex. App. L EXI S 3043, at *12—16 (Tex. App.—Austin Apr. 7, 2017, no pet.) (me m. op.) (desc ribing standard of revie w in appea l from trial cour t’s summary

judgme nt ruling in PI A case ). I t is uncontrove rted that she was outside of her home without a phy sical barr ier betwee n her location and the street. I would conclude that this location was not a “private space”

as that phrase is define d in section 1 7 0 1

. 6 5 1 (3 ) of the Texas Occ upations Code. Thus, I would 1 aff irm the trial court’s summary judgme nt ruling that the audio rec ording s during the time period in

I n conflict with the plain lang uag e of the statutory definit i o n o f “p ri v ate space ,” the 1 majority relies on Mrs. King ’s subjective expectation of privac y g iven her circ umstances and desires at t he ti me of the audio rec ording s. But Mrs. King ’s desire at t he ti me of the recording s not to be wher e she was or to have t h e p o l i ce l eave her property is not rele vant. The statutory definition is objective—“ a location in which a person has a rea sonable expectation of privac y . ” T ex . Occ

. Code § 1701.651(3). 3which Mrs. King was outside of her home wer e not ex ce p t ed from disclosure pursuant to section

1701.661(f) of the Te x as Oc cupations Code.

As to the rema inder of the majority ’s resolution of this a ppeal, althoug h I concur in its ultimate dispositi on, I cannot join its analy sis. I fundame ntally disag ree with the majority ’s importation of cr i m i n al terms and conce pts to resolve this civil appea l. Among my conce rns are broadly worde d statem en t s i n the Court’s opinion such as “[a] welfa re chec k is not a criminal investiga tion” and “[w]elfare chec ks are considere d to be within an office r’s ‘community car etaking functions.’” Ag ain, the phrase “community car etaking function” has applicability in the context of

c r im in a l c a s e s c h a ll e n g in g th e rea sonablene ss of sear ches and seizures under the Four th Amendment. I n my view, the term “community car etaking functions” has no role in resolving whether Mrs. King ’s

rec ords wer e excepted from disclosure under section 552.108(b)( 2) of the PI A. See Tex

. Gov’t Code § 552.108(b)( 2) (excepting from disclosure internal rec ord of law enfor ceme nt agency in
matter rela ting to law enfor ceme nt if internal rec ord rela tes to “law enfor ceme nt only in rela tion to an investi g ati on that did not result i n conviction or defe rre d adjudication”)

. The analy sis need go

n o fu rt h er than to observe that the parties ag ree that the office rs’ interac tions with Mrs. Ki n g, howeve r cha

rac terized, wer e not at any time a cr iminal investigation.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Goodwin, B aker , and Tria na Filed: June 6, 2019

4