### 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. 03-11-00076- CV

Appellan t, Texas Association of App raisal District s, Inc., // Cross-Appellan t, Coach Dan Hart

v. Appellee, Coach Dan Hart // Cr oss-Appellees, Texas Association of App raisal

District s, Inc., and P ropert y Tax Ed ucation Coalition

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0078 1, H ONO RAB LE JO SEP H H. H ART, JUDGE P RESIDING

O P I N I O N

I n this case , we decide whether appellant/cr oss-appe llee Texas Association of Appra isal Districts, I nc. (TAAD ) and cross-a ppellee the Property Tax Educa tion Coalition (PTEC)

are “g overnmen t al b o d i es” subject to disclosure of public information under the Texas Public I nformation Act (PI A). See Tex. Gov’t Code Ann. § 552.003(1) (We s t 2 0 1 2 ); see generally id. §§ 552.001–.353 (West 2012). Appellee /cross-a ppellant Har

t broug ht suit ag ainst TAAD and PTEC seeking disclosure under the PI A of those entities’ financ ial rec ords for the y ear s 2007 throug h 2010. The district cour

t’s final judg ment denied Ha rt’s re quested re lief as to PTEC, but g rante d relief as to TAAD a

nd order ed TAA D to disc lose the reque sted information. Both TAAD a nd Har t appea l from the district court’s final order

. We will aff irm the district court’s judgme nt in part and reve rse and re mand in part.F ACTUAL AND P ROCEDURAL BACK GR OUND TAAD is a non p ro fi t corpor ation whose mission is to “promote the eff ective and eff icient functioning of appra isal districts and aid in the improvement of the administration there of in the State of Texas.” The following persons and entities are elig ible for voluntary membership in TAAD: Texas appra isal district s ; cu rr en t and retire d employ ees of appra isal districts and taxi ng entities, members of Appra isal Review Boa rds, and state ag encie s; and persons actively eng ag ed in the prope rty

tax profession, subject to TAAD a pproval. Appr ox imately 90% of Tex as’s a ppraisal districts are members of TAAD. TAAD members are require d to pay annual membership dues, in return for which they rec eive a subscription to a bi-monthly newsletter , updates on leg islative issues of interest to TAAD members, and discounts on an annual confe renc e and on TAAD education

course s. TAAD a lso rece ives reve nue from confe renc e and course r eg istrations, advertising in its newsletter , and book sales. Some of TAAD’ s reve nue comes from public entities that use public fee s to pay

for membe rship dues or TA AD’s other products. PTEC is also a non-prof it corpor ation. I t was initially formed by seven trade associations as a voluntary unincorpora ted association to develop curr icu la a n d e d u c a ti o n a l ma te rials rela ted to licensing require ments for proper ty -tax profe ssionals. PTEC produce s course materia ls 1

on proper ty -tax issues, but rathe r than conduct the course s itself, PTEC licenses its materia ls t o various org anizations that sponsor or conduct educational and training course s. PTEC’s sole source of reve nue is the licensing fee s it rec eives from the sponsoring org anizations, which are based on the

PTEC’s member trade associations, some of which are public entities, are TAAD, the Tax 1 Assessor Collectors Association, the Texas Asso c ia ti o n o f A s s e s s in g O f

f ic e r s , the Texas Association of M u n i ci p al Tax Administrators, the Texas School Assessors Association, the Texas Council of M et ropol itan Appra isal Districts, and the Texas Rural Chief Appra isers. PTEC incorporated in 2009. 2number of students attending the course . S o m e of those licensing fee s are paid by public entities

using public funds. PTEC has n o em p l o y ee s; instead, TAAD employ ees provide administrative service s to ope rate PTEC. PTEC e ntere d into a memorandum of understanding with the Offic e of Comptroller of Public Acc ounts that, g ener ally stated, require s PTEC to develo p curricula and educational course s and that allows PTEC to char g e a rea sonable fee for the course s, materia ls, and examinations i t prepa

res. I n Fe bruar

y 2010, Har

t submitt ed a public-informa tion reque st to TAAD and PTEC seeking those entities’ financ ial rec ords for the y ear s 2007 throug h 2010. Both TAA D and PTEC ref us ed t o produce these rec ords, asser ting that they wer e not g overnme ntal bodies subject to the PI A. Neither TAAD nor PTEC reque sted a PI A ruling from the Attorney Gene ral reg arding Har t’s reque st. See Tex. Gov’t Code Ann. § 552.306(a) (re quir i n g Attorney Gene ral to rende r opinion reg arding whether reque sted information is subject to PI A). Har t then filed this suit in Travis County district court seeking a writ of mandamus to compel production o f t h e reque sted information under the PI A. After a bench trial, the district court issued a fi n al j u d gm ent order ing TAAD to produce the requested documents, but ordering that Har t take nothi ng on its claim aga inst PTEC. The district cour

t declined to aw ard H art a ttorney ’s fees. I t is from thi s judgme nt that TAAD a nd Har t now appea l.

ANALYSIS

The parties’ issues on appea l can be summarized as asking this Court to deter mine wh et h er (1) TAAD and PTEC, respe ctively , are “g overnme ntal bodies” under t he P I A, and (2) whether

Har t is entitl ed to attorne y ’s fe es under the PI A.

3Stand ard of review Whether an ent i t y i s a “g overnme ntal body ” under section 552.003 of the PI A is

a matter of statutory construction that we revie w de novo. See City of Garland v. Dallas Morning News , 22 S.W .3d 351, 357 (Tex. 2000) (noting that matters of statutory constru ct i o n ar e leg al questions, and specific ally that whether information is subject to PI A is a question of law); see also State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006) (holding that statutory construction is a matter of law, which is revie wed de novo). Our primary objective in statutory const ru ct i on is to g ive eff ect to the L eg islature’s intent. See Shumake , 199 S.W .3d at 284

. We se ek that intent “ first and fore most” in the s tatutory text

. Lexington Ins. C o. v. Str ayhorn , 20 9 S

. W.3d 83, 85 (Tex. 2006). We use statutory definitions provided. See Tex. Gov’t Code Ann. § 311.011(b) (West 2005). Where statutory text is clea

r, it is deter

minative of leg islative intent unless the plain meaning of the statute’s words would produce an absurd result. See Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009). Only when statutory text is susceptible to more than one rea sonable interpre tation is it appropr iate to look bey ond its lang uag e for assistance in deter mining leg isla t i v e i n t en t

. See In re Smith , 333 S.W .3d 582, 586 (Tex. 2 0 1 1 ). Fu rt h er , in construing the PI A, we g ive due consideration to the Att orney Gene ral’s PI A decisions, even though they are not binding, because the L eg islature has directed the Attorney Gene ral to deter mine whether rec ords m ust be dis closed p u rs u an t t o PI A. See Tex. Gov’t Code Ann. §§ 552.008(b-2) , .306 (re quiring Attorney Gene ral to rende r decisions reg arding PI A); Abbott v. City of Co r p u s C h r i sti , 109 S.W .3d 113, 121 (Tex. App.—Austin 2003, no pet.); Rainbow Grp. Ltd. v. Texas Emp’t Comm’ n , 897 S.W .2d 946, 949 (Tex. App.—Austin 1995, writ denied) ; see also Railroad Comm’n v. Texas Citi zens for a Safe Future & Clean W

ater , 336 S.W .3d 619, 624–25 (Tex. 2011) (giving “ser ious considera tion” and

4“some de fer ence ” to ag ency ’s “inter preta tion of a statute it is char g ed with enfor cing ” “so long a s the construc tion is reasonable and does not c onflict with the statute’s lang uag e”)

.

The Tex as L eg islature promulgate d the P I A wit h the ex press purpose of p roviding the public “c o m p l et e i n formation about the aff airs of g overnme nt and the officia l acts of public officia ls and employ ees.” Tex. Gov’t C ode Ann. § 552.001(a) ; Jack son v. Stat e Of

f i ce o f A d min. Hearings , 351 S.W .3d 290, 293 (Tex. 2011) (citing City of Garland , 22 S.W .3d at 355–56). The Act is aimed at prese rving a fundame ntal 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 Ann. § 552.001(a) ; Jack son , 351 S.W .3d at 293. At its c ore, the PI A ref lects the public policy that the people of Texas “insist on rema ining informed so that they may reta in control over the instruments they have cre ated.” Tex. Gov’t Code Ann. § 5 52.001(a) ; see Jack son , 351 S.W .3d at 293 (citing Texas Comptroller of Pub. Acc ounts

v. Attorney Gen. of Tex ., 354 S.W

. 3 d 3 3 6 , 343 (Tex. 2010)). To that end, the PI A direc ts that it be liberally construed in favor of disclosure of reque sted inf o rm at i o n . Tex. Gov’t Code Ann. § 552.001; Jack

son , 352 S.W .3d at 293 (c iting City of Garland , 22 S.W .3d at 356).

“Gove rnm ental body”

Under the PI A, public information is available to all members of the public. See Tex. Gov’t Code Ann. §§ 552.0 0 1 , . 0 21, .221(a)

. The PI A define s “public information” as “informa tion that is collecte d, assembled, or maintained under a law or ordinanc e or in c onnection with the transac tion of officia l business

. . . by a g overnme ntal body .” Id

. § 552.002(a) (1). “Gove rnmental body ” in turn is define d to include, among other entities not rele vant here , “the part, section, or portion of an org anization, corpor ation, commission, committee, i nstitut ion, or age ncy that spends or that is supported in whole or in pa rt by public funds.” See id. § 552.003(1)( A)(xii). 5The p ar t i es here join issue on whether TAAD and PTEC are entities that are “supported in whole

or in part by

public funds.” Har t emphasizes t h at the word “supported” should be construed acc ording to its “common” meaning , which he contends includes “to promote the interests or cause of,” to “ assist, help,” “to hold up,” “to pay the costs of: maintain,” or “to keep something g oing.” But the problem with H art’s arg ument here , illust rate d in pa rt by the numerous definitions he himself offe rs, is that “support” doe s not have a prec ise or limit ed mea ning suc h that it can be sa id to have a “ common” meaning

. See W

ebster’s Third New Int’l Dictionary 2297 (2002). Fur ther, its meaning s are so 2 broad and varie d that any private ent i t y t h at re ceive s any public funds can be said to be, at least

W ebster’s entire de finition for the ver b “support” is a s follows: 2 “to bear , endure , . . . to car ry , convey , . . . to endur e . . . t o u p h o l d by aid, countena nce, or adher ence : actively promote the interests or cause of

. . . to uphold or def end as va lid, right, just, or authoritative

. . . to arg ue in fa vor of: vote f or . . . to advoca te; endorse , vote for, or implement the policies, principles, or candida cy of

. . . to provide m ea n s , fo rc e, or streng th that is seconda ry to: back up . . . to g ive assistance to (a primar

y battle forc e) by

providing supplies, serving as a rese rve, or furnishing additional or cover ing combat-stre ng th

. . . to attend upon (a person) esp.: as an assistant on a cer emomious occa sion

. . . to act with (a star actor )

. . . to provide a musical backg round for

. . . to bid in br idge so as to show support for

. . . to se rve as verific ation, corr oboration, or substantiation of

. . . t o p ro v ide amplification or clar ification of

. . . to pay , the costs of: maintain

. . . t o s u p p l y wi th the means of maintenanc e (as lodging , food or clothing) or to ear n or furnish funds for maintaining

. . . to provide a basis for· the exis tence or sub s i s tence of: serve as the source of materia l or immaterial supply , nourishment, provende r, fuel, raw materia l, or sustenance of

. . . to have or put into circ ulation enoug h money (as from trade , wag es, manufa ct u re , or taxes) to maintain

. . . to hold up or in position: serve as a foundation or prop for: bea r the we ight or

stress of: keep from sinking or falling . . . to serve a s a her aldic supporter of .

. . to give one’s a rm to . . . to be the subject or g round of

. . . to assume and g ive the appea ranc e of havi n g . . . t o m ai ntain (a price ) at a h i gh l ev el by purcha ses or loans

. . . to maintain the price of (as an ag ricultural commodity ) by purcha ses or loans

. . . to keep from fainting , sinking, y ielding, or losing co u ra ge . . . to maintain in condition, action, or exis tence .” See W ebster’s Third New Int’l Dictionary 2297 (2002). 6in part, “supported” by those public funds. See id. But we agr ee , as does the Attorney Gene ral,

that simply rec eiving public funds does not make a private entity a “gov er n m en t al body ” under the PI A. See Kneeland v. National Collegiate Athletic Ass’n , 850 F.2d 224, 228 (5t h C i r. 1 9 8 8) (“The Texas Attorney Gene ral has conclude d that the Ac t d o es not apply to ‘private persons

or businesses simply beca use they provide specific g oods or s er v i ce s under a contra ct with a g overnme nt body .’”) (quoting Tex. Att’y Gen. No. ORD-1 (1973))

. Ultimately , howeve r, this discussion mere ly demonstrates that the PI A’s definition of “g overnme ntal body ” is susceptible to more than one meaning

.

When statutory text is ambig uous, we may resor t to rules of construction or statutory aid s , including defe renc e to an administrative ag ency ’s construction of the statute if that construction is rea sonable. See Texas Citi zens , 336 S.W .3d at 624–25 (ag ency defe renc e); Entergy , 282 S.W .3d at 437 (rules of construction and statutory aids). This defe renc e is espec ially applicable here beca use the L eg islature require s the Attorney Gene ral to deter mine whether rec ords must be disclosed pursuant to the P I A. See Tex. Gov’t Code Ann. § 552.306; Abbott , 109 S.W .3d at 121; Rainbow , 897 S.W .2d at 949; see also Texas Citi zens , 336 S.W .3d at 624 (noting that we gi v e “serious consideration” and “some defe renc e” to ag ency ’s interpre tation of a statute it is char g ed with enfor cing ” so long as that construction “is rea sonable and do es n o t conflict with the statute’s lang uag e”)

. Since 1988, Texas Attorney Gene ral opi n i o n s and open-r ecor ds letter ruling s addre ssing the scope of “g overnme ntal body ” under section 552.003(1)( A)(xii) have relied heavily

on the analy sis used by the fede ral Fifth Circuit Court of Appea ls in Kneeland

. See, e.g. , Tex. Att’y Gen. Op. No. GA-0666 (2008); Tex. Att’y Gen. Op. No. GA-0603 (2008); Tex. Att’y Gen. OR2012-

711220; Tex. Att’y Gen. OR 2 0 0 1-4849; Tex. Att’y Gen. L O-97-017 (1997). I n Kneeland , the

Fifth Ci rcuit create d a fr amewor k, by revie wing the Attorney

Gene ral’s pr e-1988 opinions on t his issue, for analy

zing whether a private entit y re ce i v i n g public funds is a “g overnme ntal body ” for PI A purposes. See Kne eland , 850 F.2d a t 228 (revie wing Tex. Att’y Gen. No. O RD 1, Tex. Att’y Gen. No. J M-821 (1987), Tex. Att’y Gen. No. ORD-228 (1979))

. Kneeland ’s re l i an ce on and adher ence to Attorney Gene ral opinions makes it a useful fr amework for our analy sis here

. See Abbott , 109 S.W .3d at 1 2 1 (noting that defe renc e to Attorney Gene ral is espec ially appropr iate in PI A ca ses). I n Kneeland, the Fifth Circuit first noted that a private entity is not a “g overnme ntal body ” under the PI A “‘simply beca use [i t] provides specific g oods or service s under a contra ct with

a g overnme nt body .’” See Kneeland , 850 F.2d at 228 (quoting Tex. Att’y Gen. No. ORD-1). I t then descr ibed wha t i t d et er m ined wer e the three fac t situations in which the Attorney Gene ral had previously deter

mined that a private entity rec eiving public funds was a “g overnme ntal body ” under the PI A. Fr om those three fac t situations, it formulated what is now ref err ed to as the Kneeland test:

An entity rec eiving public funds is trea ted as a g overnme ntal body under the PI A— 1. unl

ess the private entity ’s rela tionship with the g overnme nt “imposes a specific and definite obliga tion to provide a measura ble amount of service in exchan ge for a cer

tain amount of money as would be expected in a ty pical arms-le ng th contrac t for ser vices be tween a

vendor a nd purcha ser” ; 2. if the private entity ’s rela tionship with the g overnme nt “indicate s a common purpose or objective or cre ates an ag ency -ty pe rela tionship betwee n the two”; or 3. if the private entity ’s rela tionship with the g overnme nt “re quires the private entity to provide ser

vices tra ditionally

provided by

g overnme ntal bodies.”

8See id. We ag ree with the Fifth Circuit’s analy sis of pre -1 9 9 8 At t orney Gene ral opinions on this

issue, but more importantly , the Attorney Gene ral ag re es and has adopted the Kneeland analy sis and fra mework as its own, with the proviso that the first of th es e tests is the primary test for deter mining whether a private entity is a g overnme ntal body

. See Tex. Att’y Ge n . No

. GA-0666 (“The primary

test, howeve r, i s whether the entity rec eives public funds f

or the g ener al support of its activities, rathe r t han usi ng those funds t o perf orm a specific and defi n i te obl iga tion

. . . I f t he public funds are used for g ener al support, the entity falls within the definition of “gov er n m en t al body ” under section 552.003(a) (A)( x ii) of the Gover nment Co de.”)

. Fur

ther, in the two deca des since the Attorney Gene ral first applied Kneeland , the L eg islat u re h as amended or modified section 552.003(1)’ s definition of “g overnme ntal body ” sever al times without altering the lang uag e at issue here

. Thus, we must presume that the L eg islature was awa re of the Attorney Ge n er al ’s 3 interpre tation of section 552.003(1)( A)(xii) and adopted it as its own. See Texas Dep’ t of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W .3d 170, 176 (Tex. 2004) (“I f an ambig uous statute that has been

. . . g iven a longsta nding construction by a proper administrative office r is r eenac ted without substantial chang e, the L egi s l ature is presumed to have been familiar with that int er p re tation and to have adopted it.”). For these rea sons and beca use the analy sis is not

an u n re as o n able interpre tation of section 552.003(1)( A)(xii) in light of PI A’s lang uag e and in te n t— f a v o r in g tr a n s p a r e n c y th r o u g h d isclosure—we will defe r to the Attorney Gene ral and an a ly ze

See Act of May 20, 2003, 78th L eg ., R.S., ch. 1276, § 9.014, 2003 Tex. Ge n. L aws 4158, 3 4218; Act of May 24, 2001, 77th L eg ., R.S., ch. 1005, § 2, 2001 Tex. Gen. L aws 2186, 2187; Act of May 17, 2001, 77th L eg ., R.S., ch. 632, § 2, 2001 Tex. Gen. L aws 1194, 1194–95; A ct of Apr. 23, 199 9 , 7 6 t h L eg ., R.S., ch. 62, § 18.24, 1999 Tex. Gen. L aws 127, 403; Act of May 29, 1995, 74th L eg ., R.S., ch. 1035, § 2 , 1 9 9 5 T ex . Gen. L aws 5127, 5128; Act of May 20, 1991, 72d L eg ., R.S., ch. 306, § 5, 1991 Tex. Gen. L aws 1340, 1341–42. 9TAAD’ s and PTEC’s rela tionships with their public entity members ac co rdi ng to the Kneeland

framework a s adopted by the Att orney Gene ral. This also seems to be the approa ch best suited to eff ectua te t he transpare ncy g oals of t he P I A whil e not over- burdening private entities that happen to provide g oods and service s t o t h e go v er n ment. We will evalua te TAAD and PTEC separ ately using this fra

mework.

TAAD I n its sole issue on appea l, TAAD challeng es the district co u rt ’s conclusion t h at TAAD is a g overnme ntal body under the PI A. Specifica lly , TAAD arg ues that it is n o t a g overnme ntal entity

when a naly zed under the Kneeland

test. We ag ree . T h e fi rst element of the Kneeland test is critica l to our analy sis. See Tex. Att’y Gen. No. GA-0666. TAAD’ s rela tionship with all its members, including its public-entity members, imposes a specific and definite obli g ation to provide a measura ble amount of service in exchang e for a cer tain amount of money as would be expected i n a t y p ical arms-le ng th contra ct for service s betwee n a vendor and purc haser

. See Kneeland , 850 F.2d a t 228. I n return f or an a nnual membership fee , TAAD provides eac h of its members with a subscription to a bi-monthly newsletter , reg ular update s o n rele vant leg islative issues, and discounts on an annual confe renc e and educa tion course s that TAAD sponsors. TAAD also provides, to those who purcha se them, confe renc e and course reg istrations, adver tising in its newsletter , and books. These service s are specific , measura

ble, and done in exchang e for a cer tain amount of money

—i.e., dues or product fee s. Har t arg ues t hat bec ause TA AD does not ha ve a c ontrac t with its members, it does not have

a specific o b l i gat i o n to provide these service s. We disag ree that there is no contra ct. TAAD’ s members submit a membershi p application in which they ag ree to pay TAAD in return for 10membership in TAAD and its benef its. By acc epting the fee s, TAAD become s obliga ted to provide the service s it offe red. I n sum, TAAD’ s rela tionship with its members, which include public entities, imposes specific and definite obliga tions on TAAD to provide a measura ble amount of service to its members in exchang e for a cer tain amount of money as would be expected in a ty pical arms-le ng th contra ct for service s betwee n a ven d o r and purcha ser. That aspec t of TAAD’ s structure weig hs ag ainst it being c onsidered a “g overnme ntal body ” under the PI A. Reg arding the second part of the test—i.e., does the private entity ’s rela tionship with the g overnme nt indicate a common purpose or objective or cre ate an agenc y -ty pe rela tionship betwee n the two—the rec ord shows that TAAD does not share a common purpose or objective with its m ember s, and that it is not a n ag ent for its member s. TAAD’ s purpose is to “promote the effective and eff

icient functioning of appra isal districts and aid in the improvement of the administration there of in the State of Texas.” Whil e some of its members, specific ally its member appra isal districts, may want to achie ve or benef it from TAAD’ s p urposes, their own purpose

or objective is to perform appra isals eff ectively and eff

iciently rathe r than prom ote the same. Also important is the fac t that TAAD is a trade org anization desig ned to provide a means for its individual members to share industry -re levant information. I ts members , i n contra st, are not. Thus, while TAAD and its members share some objectives, they do not have t h e i dentity of i ntere st nece ssary to meet the common-purpose or objective prong of the Kneeland test. L ikewise, there is nothing in the rec ord to sug g est that TAAD is in an ag ency -ty pe rela tionship with its appra isa l-district members. The only contra ct t hat TAAD has wit h its members is the m ember shi p ag ree ment, and that ag ree ment does not sug g est that TAAD a cts as ag ent for its member s.

11Finally , TAAD’ s rela tionship with its appra isal-district members does not require

TAAD to perf

orm service s traditionally perf ormed by g overnme ntal bodies. I t cre ates newsletter s, prepa res leg islative updates, trains appra isers, puts on confe re n ce s , an d sells books. Although

some g overnme ntal bodies may d o s o m e o r al l of these things, none of these are the ty pes of service s t h at o n e would expect g overnme ntal bodies to perf orm exclusively

. Har

t sug g ests that TAAD perf

orms traditional g overnme ntal service s beca use if it did not provi d e t ra i ning and communication service s, the appra isal districts would have to do so. Acc epting that arg ument would rende r this rule meaning less—e.g ., if the State did not purcha se its supplies from an outside vendor, it would have to provide the m itself.

Ba sed on this analy sis, we hold that TAAD is not a g overnme ntal body under the PI A. Acc ording ly , we sustain TAA D’s issue on appe al.

PTEC I n his first cross-issue on appea l, Har t challeng es the district court’s conclusion that PTEC is not a g overnme ntal body under the PI A. Specifica lly , he contends that under the common meaning of “support” and under the Kneeland test, PTEC is supported by public funds. We disag ree .

We note first that we addre ssed and reje cted ear lier in this opinion Har t’s arg ument reg arding the common meaning of “support.” And reg arding the Kneeland test, as discussed above, PTEC’s only purpose is to produce educational materia ls for the proper ty -tax profe ssion. I t does not

run the seminars or course s, selec t teac hers, or selec t students. I ts sole s o u rc e o f reve nue is the licensing fee s it rec eives from those entities that wish to use P TEC’s mat er i al s . T h u s, any public funds PTEC re ceive s are pay ments made by public entities for licenses to use PTEC’s e ducational materia ls for those entities’ own purposes. I n other wo rd s , i n ex chang e for a cer tain amount of 12money , PTEC provides the purcha ser with the materia ls PTEC cre ates. Thus, PTEC’s financ ial

rela tionship with its publi c-e ntity members imposes a spe cific a nd definite oblig ation on PTEC to provide a measura

ble amount of service —a license to use its materia ls—in exchang e for a pay ment that would be expected in a ty pical arms-le ng th contra ct fo r s er v ices betwee n a vendor and purcha ser. As such, application of the first prong of the Kneeland test weig hs ag ainst PTEC being considere d a “g overnme ntal body ” under the PI A. Under the second prong of the Kneeland test, we consider whethe r PTEC’s rela tionship with g overnme ntal entities indicates a common purpose or objective or cre ates an ag ency -ty pe rela tionship. We conclude that it does not. PTEC’s purpose is to cre ate educational materia ls and license those materia ls. The g overnme ntal entities that purcha se PTE C ’s m at eria ls do so to train their personne l. Those ar e d i s t i n ct and separ ate purposes. I ts rela tionship with the g overnme ntal bodies who pay for its materia ls is in the nature of a vendor to a purcha ser. L ikewise, there is nothing about these rela tionships t hat sug g est PTEC is acting a s the purcha ser’ s ag ent.

I n the third prong of the Kneeland test, we consider whether PTEC’s rela tionship require s it to provide service s traditionally provided by g overnme ntal bodies. Ag ain, our answe r is that it does not. Whil e g overnme ntal bodies may cre ate educational materia ls, that is not a service that would be tra ditionally provided only

by a g overnme ntal body

. Har t arg ues that PTEC’s memorandum of understanding with the Comptroller

cre ates both a common purpose and an ag ency rela tionship. We disag ree . Whil e the memorandum of understanding may state that PTEC ag ree s to cre ate materia ls on behalf of and under the direc tion of the Comptroller, the fac t is that it has no obliga tion to do so; rathe r, it does these things on behalf of its customers. Fur

ther, there is nothing in the rec ord to sug g est t h at PTEC actua lly acts on the

13Comptroller’s behalf

. But even if we wer e to acc ept that it did and that PTEC and the Comptroller share a common purpose, the Attorney Gene ral has consistently conclude d that a private entity is not

a “g overnme ntal body ” if it provides a measura ble amount of service s in return for p u b l ic funds from a public entity

. See Tex. At t ’y Ge n . No

. GA-0666 (holding that first prong of Kneeland is primary test); Tex. Att’y Gen. OR2002-4853 (dete rmining that non-prof it animal shelter is not g overnme ntal body beca

use it provides service s in exchang e for public funds). To that extent, it is not appropr iate to consider PTEC a “g overnme ntal body ” when it provides a measura ble amount of service (educ ational mater ials) in exchang e for a ce rtain amount of money

. Ba sed on this analy sis, we hold that PTEC is not a g overnme ntal body under the PI A. Acc ording ly , we ove rrule H art’s f irst issue on appea l.

Attor ney’s fees

Having deter

mined that neither TAAD or PT E C ar e governme ntal bodies under the P I A, Ha rt ca n not be considered to have substantially preva iled on the m erits of this case . See Tex. Gov’ t Code Ann. § 552.323(a ) (a llowing district cour t to assess attorney ’s fee s for a plaintiff who s ubstantially preva ils in action to enfor ce PI A). As such, he is not entitled to atto rn ey ’s fe es under the PI A. See id. Acc ording ly , we o v err ule Har t’s second issue on appea l challeng ing the district court’s re fusal to awa rd him attorney ’s fe es.

CONCLUSION Having sustained TAAD’ s sole issue on appea l, we re v er s e the district court’s judgme nt reg arding TAAD and rende r judgme nt that TAAD is not a “g overnme ntal body ” under

14the PI A. Having overr uled Har t’s two cross-issues, we aff irm the rema inder of the district cour t’s judgme nt as modified.

__________________________________________ J eff Rose, J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med in part; Rever sed and Rende red in pa rt Filed: Aug ust 31, 2012

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