City of Dallas Brief

No.
13-13-00397-CV
__________________________________________________________________

IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
__________________________________________________________________

CITY OF DALLAS,

Appellant,
v.

GREG ABBOTT, ATTORNEY GENERAL OF TEXAS,

Appellee.
__________________________________________________________________

Appeal from the 126th Judicial District Court of Travis County, Texas
No. D-1-GV-08-001508
__________________________________________________________________

APPELLANTS BRIEF AND APPENDIX
__________________________________________________________________

Barbara E. Rosenberg WARREN M. S. ERNST
State Bar No. 17267700 Dallas City Attorney
barbara.rosenberg@dallascityhall.com
Dallas City Attorneys Office
James B. Pinson (Lead) 1500 Marilla Street, Room 7B North
State Bar No. 16017700 Dallas, Texas 75201
james.pinson@dallascityhall.com
Telephone: 214-670-3519
Assistant City Attorneys Telecopier: 214-670-0622

ATTORNEYS FOR THE CITY OF DALLAS

ORAL ARGUMENT REQUESTED
ACCEPTED
13-13-00397-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/2/2014 2:37:20 PM
DORIAN RAMIREZ
CLERK
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
1/2/2014 2:37:20 PM
DORIAN E. RAMIREZ
Clerk
ii
IDENTITIES OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a)(1)(A), the
following is a list of all parties to the trial courts order from which this appeal is
taken, and the names and addresses of all trial and appellate counsel:
Defendant/Appellant Counsel

1. City of Dallas Barbara E. Rosenberg (Appellate)
James B. Pinson (Trial and Appellate)

1500 Marilla Street, Room 7B North
Dallas, Texas 75201
Telephone: 214-670-3519
Telecopier 214-670-0622

2. Greg Abbott, Rosalind L. Hunt
Attorney General rosalind.hunt@texasattorneygeneral.gov
of Texas
Open Records Litigation, Admin. Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: 512-475-4166
Telecopier 512-320-0167
iii
TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES .................................................................................... vi
STATEMENT OF THE CASE ................................................................................ xi
STATEMENT REGARDING ORAL ARGUMENT ............................................ xii
ISSUES PRESENTED ........................................................................................... xiii
1. The trial court erred in granting judgment for the Attorney General
and denying judgment for the City.
2. The policy reasons for the lawyer-client privilege are compelling
reasons to withhold all confidential attorney-client communications
from public disclosure under Texas Government Code section
552.302.
3. The Attorney General is not entitled to an award of attorney fees
under Texas Government Code section 552.323.
INTRODUCTION ..................................................................................................... 1
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF ARGUMENT ................................................................................. 7
ARGUMENT ............................................................................................................. 8
I. A governmental body that requests an attorney general decision after
the deadlines in Texas Government Code section 552.301 may
withhold requested public information if there is a compelling reason
to do so; whether the lawyer-client privilege presents a compelling
reason is a question of law. .............................................................................. 8
II. The policy reasons for the lawyer-client privilege are intrinsically
compelling reasons to withhold a governmental bodys confidential
attorney-client communications from public disclosure under Texas
Government Code section 552.302. ..............................................................10
iv
A. The courts have not recognized a general standard for what
constitutes a compelling reason, but they have recognized
certain situations as being compelling without regard to
exigencies, justifications, or excuses. .................................................11
B. The lawyer-client privilege is of fundamental importance to our
legal system and applies without regard to when the privilege is
asserted, the content of the privileged communication, or the
consequences of disclosure of the communication. ............................15
C. The lawyer-client privilege is categorically compelling because
it is based on a policy recognizing that protecting the attorney-
client relationship is more beneficial than requiring public
disclosure of confidential attorney-client communications. ...............17
D. The information in Plaintiffs Exhibit 1 is excepted from
disclosure under Texas Government Code sections 552.101 and
552.107. ...............................................................................................21
1. The information in Plaintiffs Exhibit 1 is excepted from
disclosure under section 552.101 because it is
confidential under the rules of evidence, which are law. .........22
disclosure under section 552.107 because its disclosure is
prohibited by the ethics rules. ...................................................24
E. The lawyer-client privilege is waived only by voluntary
disclosure, consent to disclosure, or offensive use; but the trial
courts decision effectively imposes a new theory of waiver
under the Texas Public Information Act. ............................................25
III. The Attorney General is not entitled to attorney fees, because he
should not be a substantially prevailing party under the TPIA and
because in any event the City had a reasonable basis in law for its suit
and brought the litigation in good faith. ........................................................29
CONCLUSION AND PRAYER .............................................................................32
CERTIFICATE OF SERVICE ................................................................................33
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ..........................................34
v
APPENDIX
Final Judgment, dated May 13, 2013 (CR 409-11) .................................Tab A
Attorney General Letter Ruling No. 2008-08859 (CR 61-64) ................ Tab B
Letter from the trial court dated November 3, 2010 (CR 284-86) .......... Tab C
Order on Motions for Summary Judgment (CR 289-90) ........................Tab D
Letter from the trial court dated April 8, 2013 (CR 406-07) ................... Tab E
Dallas, Tex., Charter chs. III, VII, XVIII ................................................ Tab F
vi
INDEX OF AUTHORITIES
CASES
Abbott v. Tex. State Bd. of Pharmacy,
391 S.W.3d 253 (Tex. App.Austin 2012, no pet.) .....................................11
Axelson, Inc. v. McIlhany,
798 S.W.2d 550 (Tex. 1990) .........................................................................23
Carmona v. State,
941 S.W.2d 949 (Tex. Crim. App. 1997) ......................................................16
City of Dallas v. Abbott,
279 S.W.3d 806 (Tex. App.Amarillo 2007) ....................................... 11, 31
City of Dallas v. Abbott,
304 S.W.3d 380 (Tex. 2010) ............................................................ 11, 31, 32
City of Garland v. Dallas Morning News,
22 S.W.3d 351 (Tex. 2000) .................................................................... 11, 22
City of San Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) ...........................................................................10
City of San Antonio v. San Antonio Express-News,
47 S.W.3d 556 (Tex. App.San Antonio 2000, pet. denied) ......................10
Doe v. Tarrant Cnty. Dist. Attorneys Office, 269 S.W.3d 147 (Tex.
App.Fort Worth 2008, no pet.) ..................................................................13
Envoy Med. Sys., L.L.C. v. State,
Ford Motor Co. v. Leggat,
904 S.W.2d 643 (Tex. 1995) .........................................................................15
Harlandale Indep. Sch. Dist. v. Cornyn,
25 S.W.3d 328 (Tex. App.Austin 2000, pet. denied) ................................22
Hunt v. Blackburn,
128 U.S. 464 (1888).......................................................................................17
vii
In re City of Dallas,
No. 05-03-00516-CV, 2003 WL 21000387
(Tex. App.Dallas 2003, orig. proceeding) .................................................23
In re City of Georgetown,
53 S.W.3d 328 (Tex. 2001) ...........................................................................24
In re Graco Childrens Prods., Inc.,
173 S.W.3d 600 (Tex. App.Corpus Christi-Edinburg 2005,
orig. proceeding) ............................................................................................27
In re Grand Jury Investigation,
399 F.3d 527 (2d Cir. 2005) ..........................................................................18
In re Lincoln Elec. Co.,
91 S.W.3d 432 (Tex. App.Beaumont 2002, orig. proceeding
[mand. denied]) ..............................................................................................28
In re XL Specialty Ins. Co.,
373 S.W.3d 46 (Tex. 2012) ...........................................................................24
Jackson v. Tex. Dept of Pub. Safety,
243 S.W.3d 754 (Tex. App.Corpus Christi - Edinburg 2007,
pet. denied) ............................................................................... 8, 9, 10, 11, 12
Jaffee v. Redmond,
518 U.S. 1 (1996) ...........................................................................................17
Markowski v. City of Marlin,
940 S.W.2d 720 (Tex. App.Waco 1997, writ denied) ...............................18
Republic Ins. Co. v. Davis,
856 S.W.2d 158 (Tex. 1993) ............................................................ 16, 17, 28
Ross v. City of Memphis,
423 F.3d 596 (6th Cir. 2005) .........................................................................18
Sandra T.E. v. S. Berwyn Sch. Dist. 100,
600 F.3d 612 (7th Cir. 2010) .........................................................................19
viii
Simmons v. Kuzmich,
166 S.W.3d 342 (Tex. App.Fort Worth 2005, no pet.) ........ 8, 9, 10, 11, 13
Swidler & Berlin v. United States,
524 U.S. 399 (1998).......................................................................................17
Tex. Comptroller of Pub. Accounts v. Attorney Gen.,
354 S.W.3d 336 (Tex. 2010) .........................................................................30
Tex. State Bd. of Veterinary Med. Examrs v. Giggleman,
Tidwell v. State,
No. 08-11-00322-CR, 2013 WL 6405498 (Tex. App.El Paso
Dec. 4, 2013, no pet. h.) .................................................................................12
Upjohn Co. v. United States,
449 U.S. 383 (1981).......................................................................................15
West v. Solito,
563 S.W.2d 240 (Tex. 1978) .........................................................................16
STATUTES
Act of May 24, 2013, 83rd Leg., ch. 1204, 1 ......................................................... 9
Act of May 29, 1995, 74th Leg., ch. 1035, 2 .......................................................... 9
Tex. Govt Code 22.004 ........................................................................................24
Tex. Govt Code 22.109 ........................................................................................24
Tex. Govt Code 552.001 ......................................................................................10
Tex. Govt Code 552.021 ........................................................................................ 8
Tex. Govt Code 552.022 ......................................................................................20
Tex. Govt Code 552.101 ......................................................................................21
Tex. Govt Code 552.107 ......................................................................................21
ix
Tex. Govt Code 552.221 ........................................................................................ 8
Tex. Govt Code 552.301 ........................................................................................ 9
Tex. Govt Code 552.302 ........................................................................................ 9
Tex. Govt Code 552.323 ......................................................................................30
Tex. Govt Code ch. 552, subch. C ............................................................................ 9
Tex. Govt Code ch. 81 ............................................................................................25
Tex. Loc. Govt Code 9.008 .................................................................................25
CHARTER PROVISIONS
Dallas, Tex., Charter ch. III, 1 ..............................................................................26
Dallas, Tex., Charter ch. III, 9 ..............................................................................26
Dallas, Tex., Charter ch. VII, 2 .............................................................................25
Dallas, Tex., Charter ch. VII, 3 .............................................................................25
Dallas, Tex., Charter ch. XVIII, 1.........................................................................26
RULES
Tex. Disciplinary R. Profl Conduct 1.05 ................................................................25
Tex. R. Civ. P. 193.2 ................................................................................................27
Tex. R. Civ. P. 193.3 ................................................................................................27
Tex. R. Evid. 503 .....................................................................................................23
Tex. R. Evid. 511 .....................................................................................................27
x
OTHER AUTHORITIES
1 Steven V. Goode et al., Guide to the Texas Rules of Evidence
503.1 (3d ed. 2002) .....................................................................................15
8 John Henry Wigmore, Wigmore on Evidence
2285 (J. McNaughton rev. ed. 1961) ..........................................................18
Restatement (Third) of the Law Governing Lawyers 74 (2000) ..........................26

xi
STATEMENT OF THE CASE
Nature of the This is a suit for declaratory relief from compliance with an
Underlying attorney general decision under subchapter G of the Texas
Case: Public Information Act, Tex. Govt Code ch. 552. The City
requested the decision after the 10-day and 15-day deadlines in
Government Code section 552.301 had run, and the Attorney
General ruled that the information, consisting of confidential
attorney-client communications, must be released for that
reason (CR 61-64 [Appx Tab B]). The City sued for a
judgment that the information is excepted for a compelling
reason under section 552.302 because (1) the communications
are excepted under sections 552.101 and 552.107 and (2) the
obligations imposed by the Texas Disciplinary Rules of
Professional Conduct and the public interest in preserving
governmental bodies expectation of confidentiality are
compelling reasons to withhold the information.

Trial Court: The Honorable Gisela D. Triana, Presiding Judge of the 200th
District Court, Travis County, sitting for the Honorable Darlene
Byrne, Presiding Judge of the 126th District Court, Travis
County. (The Honorable Amy Clark Meachum, Presiding
Judge of the 201st District Court, Travis County, heard and
denied the Attorney Generals second motion for summary
judgment, which is not at issue in this appeal.)

Trial Courts The trial court granted in part the Citys motion for summary
Disposition: judgment, determining as a matter of law that the information at
issue constitutes confidential communications made for the
purpose of facilitating the rendition of professional legal
services to the City between, by, or among the persons
described in Texas Rule of Evidence 503(b)(1)(A) through (E).
(CR 284-86 [Appx Tab C], 289 [Appx Tab D]; see CR 29-
30.) Upon trial on an agreed statement of facts, the trial court
signed a final judgment for the Attorney General, concluding
that the City had not shown a compelling reason to withhold the
confidential attorney-client communications under section
552.302. (CR 409-11 [Appx Tab A].)

xii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would be helpful in the submission of this case for
determination because the issues have not been resolved by the courts and are
important to governmental bodies throughout the State of Texas. The appeal is
about whether a governmental body that receives an open records request and asks
for an attorney general decision after the deadlines in the Texas Public Information
Act (TPIA or the Act) must demonstrate something in addition to the fact that
the requested public information constitutes the governmental bodys confidential
attorney-client communications to establish a compelling reason to withhold the
information under Texas Government Code section 552.302. The City contends
the privilege is categorically compelling in itself, and the Act does not abrogate the
privilege when a governmental body misses a deadline in section 552.301.
Whether governmental bodies can rely on the expectation that their confidential
attorney-client communications will be protected from disclosure will affect their
ability to seek legal advice in making strategic decisions, conducting operations,
negotiating contracts and settlements, engaging in frank self-evaluations, and
pursuing and defending claims. Development of case law on the issues presented
will assist governmental bodies in responding to public information requests.
These issues have not been decided by binding precedent in any Texas appellate
court. For these reasons, the City requests oral argument.
xiii
ISSUES PRESENTED
1. The trial court erred in granting judgment for the Attorney General
and denying judgment for the City.
2. The policy reasons for the lawyer-client privilege are compelling
reasons to withhold all confidential attorney-client communications
from public disclosure under Texas Government Code section
552.302.
3. The Attorney General is not entitled to an award of attorney fees
under Texas Government Code section 552.323.
1
No. 13-13-00397-CV
__________________________________________________________________

IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS
AT CORPUS CHRISTI - EDINBURG
__________________________________________________________________

CITY OF DALLAS,

Appellant,
v.

GREG ABBOTT, ATTORNEY GENERAL OF TEXAS,

Appellee.
__________________________________________________________________

APPELLANTS BRIEF
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

The City of Dallas, Appellant, files its appellants brief in this appeal from a
final judgment that requires the City to disclose its confidential attorney-client
communications in response to an open records request.
INTRODUCTION
There is no binding appellate precedent on what constitutes a compelling
reason to withhold confidential attorney-client communications from public
disclosure when a governmental body requests an attorney general decision after
the expiration of the 10-day and 15-day deadlines in the TPIA. It is time to answer
the issue definitively, and the answer should be that the policy supporting the
2
lawyer-client privilege is sufficiently vital that it trumps the presumption in favor
of disclosure in Texas Government Code section 552.302. The lawyer-client
privilege exists for very sound reasons. It is fundamentally necessary for our legal
system to function effectively. The TPIA recognizes that importance by
necessarily incorporating the privilege as one of its exceptions to disclosure.
Given the vital importance of this privilege and the fact that honoring the privilege
does not impair the proper functioning of the TPIA, the States policy of protecting
confidential attorney-client communications constitutes a compelling reason to
withhold information from public disclosure.
The judgment is erroneous because State policy protects the attorney-client
relationship with the lawyer-client privilege despite the loss of information caused
by that privilege and that policy is a compelling reason to withhold the information
at issue. The Court should reverse and render judgment declaring that the
requested information is excepted from required disclosure under the TPIA and
denying the Attorney Generals request for attorney fees.
STATEMENT OF FACTS
The City received a request for public information from Sam Merten
seeking, among other things, [a]ll documents and email correspondence to or
from any council member, Mayor Tom Leppert, City Manager Mary Suhm or
3
Assistant City Manager A.C. Gonzalez regarding the convention center hotel.
(CR 54, 56.)
Sixty-nine days later, the City sent the Attorney General a letter asking
whether some of the requested information was excepted from required public
disclosure under Texas Government Code sections 552.101 and 552.107(1) and
Texas Rule of Evidence 503(b)(1). (CR 55, 57-60.) The City included with the
request for an attorney general decision a copy of Mertens request for information,
which contained evidence sufficient to establish the date the City received it; and
the City stated in the letter the date on which the request was received. (CR 55.)
The Citys request for an attorney general decision contained comments stating the
reasons the information at issue is excepted from required public disclosure. (CR
55, 57-60.) The City also included a copy of the representative sample, labeled
Exhibit B, of the e-mail communications at issue in this case. (CR 55, 57-60; SCR
Pl.s Ex. 1.) The City sent Merten a copy of its request for an attorney general
decision (CR 55).
The City asserted and argued to the attorney general that the information is
excepted from disclosure under Texas Government Code section 552.101 (in
conjunction with Texas Rule of Evidence 503) and section 552.107 because it
constitutes confidential attorney-client communications. (CR 55, 57-60.) The
parties to the communications in the representative sample are as follows: David
4
Cook, the chief financial officer for the City; Gwen Satterthwaite, an assistant city
attorney for the City; A. C. Gonzalez, an assistant city manager for the City; Mark
Duebner, the director of business development and procurement for the City;
Charles Bierfeld, an assistant city attorney for the City; Warren Ernst, an assistant
city attorney for the City; Jeff Leuschel, a retained outside bond attorney for the
City; Wayne Placide, a retained financial advisor to the City for the convention
center hotel; Jeanne Chipperfield, the director of budget management services for
the City; Frank Poe, the director of convention and event services for the City; Noe
Hinojosa, a retained financial advisor to the City for the convention center hotel;
Alberto Rojas, the assistant director of convention and event services in charge of
finance and administration for the City; and Gladys Bowens, the assistant director
of development services in charge of real estate for the City. (CR 51-52; SCR Pl.s
Ex. 1.) The subject matter of the communications pertains to each city
representatives performance of the duties of his or her employment or services
agreement. (CR 52-53; SCR Pl.s Ex. 1.) The communications were disclosed
only to representatives of the City (David Cook, A. C. Gonzalez, Mark Duebner,
Wayne Placide, Jeanne Chipperfield, Frank Poe, Noe Hinojosa, Alberto Rojas, and
Gladys Bowens); to attorneys for the City (Gwen Satterthwaite, Charles Bierfeld,
Warren Ernst, and Jeff Leuschel); and to other employees of the city attorneys
office and the outside bond attorneys office who assisted in the rendition of
5
professional legal services to the City. (CR 53; SCR Pl.s Ex. 1.) The
communications were made for the purpose of facilitating the rendition of
professional legal services to the City between the City or a representative of the
City and the Citys lawyer or a representative of the lawyer. (CR 53; SCR Pl.s
Ex. 1.) The communications were not intended to be disclosed to third persons
other than those to whom disclosure was made in furtherance of the rendition of
professional legal services to the City or those reasonably necessary for the
transmission of the communication. (CR 53; SCR Pl.s Ex. 1.)
The Attorney General disposed of the Citys request in letter ruling number
OR2008-08859. (CR 55, 61-64 [Appx Tab B].) He ruled that the information at
issue is not excepted from required public disclosure under section 552.101
(information confidential by law) because that section does not encompass
discovery privileges. (CR 61 n.1 [Appx Tab B].) He further ruled that the City
could not assert the exception under section 552.107(1) (attorney-client
information) after the deadlines provided in Texas Government Code section
552.301 because that exception is discretionary, and concluded that therefore the
requested information is not excepted from required public disclosure except for a
limited amount of information that is confidential under sections 552.117 and
552.137. (CR 62 [Appx Tab B].) He accordingly directed the City to release all
6
responsive information, except for information that is confidential under sections
552.117 and 552.137. (CR 63 [Appx Tab B].)
The City filed this suit for declaratory relief from the Attorney Generals
decision. The trial court reviewed the information at issue in camera and granted
the Citys motion for summary judgment in part, granting the Citys first ground
for summary judgment (CR 289 [Appx Tab D]), which is that the information
constitutes confidential communications made for the purpose of facilitating the
rendition of professional legal services to the City between, by, or among the
persons described in Texas Rule of Evidence 503(b)(1)(A) through (E) (CR 29-
30). The trial court noted that the Attorney General does not dispute that the
material qualifies as attorney-client communications. (CR 284 [Appx Tab C].)
The parties jointly moved for judgment on an agreed statement of facts
pursuant to Texas Rule of Civil Procedure 263. (CR 372-402.) The City asserted,
and the Attorney General disputed, that the obligations imposed by the Texas
Disciplinary Rules of Professional Conduct and the public interest in preserving
governmental bodies expectation of confidentiality constitute compelling reasons
to withhold the information at issue, marked as Plaintiffs Exhibit 1 (see SCR),
from disclosure under section 552.302. (CR 375.) At the hearing on the motion,
the trial court ordered Plaintiffs Exhibit 1 to be filed under seal (CR 404-05) and
certified the agreed statement of facts (CR 403). After the hearing, and after
7
reviewing Plaintiffs Exhibit 1 in camera, the court issued a letter ruling holding
that the confidentiality of attorney-client communications is not a compelling
reason in and of itself, but that particular information might be withheld based on a
compelling reason specific to that information. (CR 406-07 [Appx Tab E].) The
court signed a final judgment ordering that the information must be disclosed and
awarding attorney fees to the Attorney General. (CR 409-11 [Appx Tab A].)
The City timely perfected this appeal. (CR 412-13.)
SUMMARY OF ARGUMENT
The States policy in favor of protecting the attorney-client relationship with
the lawyer-client privilege, despite the loss of evidence caused by the privilege, is a
compelling reason to withhold confidential attorney-client communications from
required public disclosure under Texas Government Code section 552.302. The
information in Plaintiffs Exhibit 1 is excepted from disclosure under section
552.101 because it constitutes privileged attorney-client communications under the
rules of evidence, which are law. The information in Plaintiffs Exhibit 1 is also
excepted from disclosure under 552.107 because the ethics rules prohibit the
attorneys for the City from disclosing it. The TPIA does not abrogate the lawyer-
client privilege for a governmental bodys confidential attorney-client
communications when the governmental body fails to meet the 10-day and 15-day
deadlines in section 552.301.
8
The Attorney General is not entitled to an award of attorney fees under
section 552.323, because he should not be a substantially prevailing party and in
any event because the City had a reasonable basis in law for its suit and brought
the litigation in good faith.
ARGUMENT
I. A governmental body that requests an attorney general decision after
the deadlines in Texas Government Code section 552.301 may withhold
requested public information if there is a compelling reason to do so;
whether the lawyer-client privilege presents a compelling reason is a
question of law.
The TPIA requires disclosure of public information upon a governmental
bodys receipt of a request. Tex. Govt Code 552.021, .221; Jackson v. Tex.
Dept of Pub. Safety, 243 S.W.3d 754, 756 (Tex. App.Corpus Christi - Edinburg
2007, pet. denied) (citing Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex. App.
Fort Worth 2005, no pet.)). When the City received the request for public
information at issue in this case, public information was defined as information
that is collected, assembled, or maintained under a law or ordinance or in
connection with the transaction of official business: / (1) by a governmental body;
or / (2) for a governmental body and the governmental body owns the information
9
or has a right of access to it. Act of May 29, 1995, 74th Leg., ch. 1035, 2
(amending Tex. Govt Code 552.002(a)); Jackson, 243 S.W.3d at 756.
1

The TPIA excepts certain categories of information from the statutory
disclosure requirement. Jackson, 243 S.W.3d at 756-57; see Tex. Govt Code
ch. 552, subch. C (exceptions to disclosure). To assert an exception under the Act,
when no previous determination has been made on the information, a
governmental body must make a timely request for an attorney generals ruling to
determine the applicability of the exception to disclosure. Jackson, 243 S.W.3d at
757 (citing Tex. Govt Code 552.301(a); Simmons, 166 S.W.3d at 346). The
governmental body must initiate its request for a decision within 10 business days
after receiving the public information request and complete its submission to the
Attorney General within 15 business days after receipt of the request. See Tex.
Govt Code 552.301(b), (d), (e), (e-1). If the governmental body fails to make a
timely request, the information is presumed to be subject to disclosure and must be
released unless there is a compelling reason to withhold the information. Jackson,
243 S.W.3d at 757 (citing Tex. Govt Code 552.302; Simmons, 166 S.W.3d at
346). The Act does not define or explain what constitutes a compelling reason.
It does, however, direct the courts to liberally construe its provisions in favor of

1
The definition of public information was further amended in 2013. See Act of May 24, 2013,
83rd Leg., ch. 1204, 1.
10
disclosure, and exceptions to disclosure should be narrowly interpreted. Jackson,
243 S.W.3d at 757 (citing Simmons, 166 S.W.3d at 346; Envoy Med. Sys., L.L.C. v.
State, 108 S.W.3d 333, 336 (Tex. App.Austin 2003, no pet.); City of San
Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561-62 (Tex. App.San
Antonio 2000, pet. denied)); see Tex. Govt Code 552.001(b) (This chapter
shall be liberally construed in favor of granting a request for information.).
The issue presented is whether the policy supporting the lawyer-client
privilege is a compelling reason under Government Code section 552.302 to
withhold all lawyer-client-privileged communications of a governmental body
even though the governmental body made a late request for an attorney general
ruling on the information. This is an issue of statutory construction. Issues of
statutory construction are questions of law that are reviewed de novo. Tex. State
Bd. of Pharmacy, 391 S.W.3d at 255 (citing City of San Antonio v. City of Boerne,
111 S.W.3d 22, 25 (Tex. 2003)).
II. The policy reasons for the lawyer-client privilege are intrinsically
compelling reasons to withhold a governmental bodys confidential
attorney-client communications from public disclosure under Texas
Government Code section 552.302.
The trial court granted partial summary judgment concluding as a matter of
law that the information at issue constitutes the Citys lawyer-client-privileged
communications. (CR 284 [Appx Tab C], 289 [Appx Tab D]; see CR 29-30.)
The case was tried on an agreed statement of facts pursuant to Texas Rule of Civil
11
Procedure 263. (CR 372-403, 406-07 [Appx Tab E], 409 [Appx Tab A].) Under
the Act, once the facts are established, determining whether an exception to
disclosure applies is a question of law. Jackson, 243 S.W.3d at 757 (citing
Simmons, 166 S.W.3d at 346); Abbott v. Tex. State Bd. of Pharmacy, 391 S.W.3d
253, 256 (Tex. App.Austin 2012, no pet.) (citing City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 357 (Tex. 2000)). As a matter of law, the
information in Plaintiffs Exhibit 1 is excepted from disclosure under section
552.302 because the policy of this State establishes a compelling reason to
withhold the information.
A. The courts have not recognized a general standard for what
constitutes a compelling reason, but they have recognized certain
situations as being compelling without regard to exigencies,
justifications, or excuses.
There is no binding judicial precedent articulating a standard for
demonstrating a compelling reason under the Act. In City of Dallas v. Abbott, 279
S.W.3d 806, 811 (Tex. App.Amarillo 2007), revd, 304 S.W.3d 380 (Tex. 2010),
the Seventh Court of Appeals concluded that for there to be a compelling reason
under section 552.302, a governmental body must make a further showing in
addition to establishing that the information contains confidential attorney-client
communications. The supreme court reversed the court of appeals judgment on
other grounds and did not reach the question. City of Dallas, 304 S.W.3d at 387.
The trial court here essentially adopted the reasoning of the Amarillo court. (See
12
CR 406-07 [Appx Tab E].) Neither the Amarillo court in City of Dallas nor the
trial court in this case explained what more must be shown. The Amarillo courts
decision, while not binding precedent, indicates that that court would hold that the
lawyer-client privilege is not categorically compelling but that a compelling reason
may exist for withholding certain attorney-client confidences. That is the only
appellate decision involving the compelling reason exception in section 552.302
that has dealt with confidential attorney-client communications.
Other cases have developed some but not all of the contours of what
constitutes a compelling reason. This Court in Jackson, 243 S.W.3d 754, held that
Texas Transportation Code section 521.051 prohibits disclosure of information in a
basic drivers license record file and that because the Department of Public Safety
demonstrated that a statute required the department to maintain confidentiality of
this information, the department satisfied its burden to show a compelling reason to
withhold information under section 552.302. In so holding, the Court recognized
that a statutory prohibition against disclosure constitutes a compelling reason under
section 552.302. Id at 759. The Third and Eighth Courts of Appeals have also
stated that a statutory prohibition against disclosure is compelling. Tidwell v.
State, No. 08-11-00322-CR, 2013 WL 6405498, at *13 (Tex. App.El Paso Dec.
4, 2013, no pet. h.); Tex. State Bd. of Veterinary Med. Examrs v. Giggleman, 408
S.W.3d 696, 699 n.9 (Tex. App.Austin 2013, no pet.). The Second Court of
13
Appeals held that a governmental body demonstrates a compelling reason to
withhold public information when it shows that (1) it is prohibited by statute from
disclosing certain information and, therefore, that information is excepted from
disclosure under the TPIA, or (2) the disclosure of the information implicates the
privacy interest of a party other than the governmental body. Doe v. Tarrant Cnty.
Dist. Attorneys Office, 269 S.W.3d 147, 155 (Tex. App.Fort Worth 2008, no
pet.).
2
And in Simmons, 166 S.W.3d 342, which involved a governmental bodys
law enforcement privilege, the Second Court of Appeals held that the mere fact
that disclosure of requested information will jeopardize an ongoing criminal
investigation is not a compelling reason to withhold the information under section
552.302. Id. at 350.
3
The case law thus reflects that statutory prohibitions against
disclosure and the interests of third parties are inherently compelling, but law
enforcement interests are not.
Here, the trial court, like the Amarillo court in City of Dallas, concluded that
a governmental body cannot argue generally that confidentiality is sufficient to all
attorney-client privileged information, but that there could be a cogent and

2
In a footnote the court added: We emphasize that this opinion should not be construed as
identifying the only compelling reasons to withhold information; there may be other such
reasons that are not relevant to the disposition of this appeal. Doe, 269 S.W.3d at 155 n.43.
3
The dissent disagreed, and noted: The majoritys holding that the information is subject to
public disclosure merely due to Simmonss blunder in missing the ten-day notice requirements
of section 552.301 exalts form over substance, and may interfere with and hamper an ongoing
criminal investigation. Simmons, 166 S.W.3d 351 (Cayce, C.J., dissenting).
14
compelling argument made that allows particular information to be withheld based
on confidentiality. (CR 406-07 [Appx Tab E].) Implicit in the courts
conclusion is the assumption that a governmental body should have a heavier
burden to withhold information under the compelling reason exception in section
552.302. See also City of Dallas, 279 S.W.3d at 811 (Under the Citys theory, its
burden is the same regardless of the timeliness of the request for an attorney
general decision.).
This assumption overlooks the fact that there is no heavier burden when the
information falls under an exception to disclosure because of a statutory
prohibition against disclosure or the privacy rights of third parties. A
governmental body does not have to show some exigency or justification or excuse
to withhold statutorily confidential information or a third partys private or
proprietary information, so there is simply no persuasive rationale for requiring a
governmental body to show some exigency or justification or excuse to withhold
its confidential attorney-client communications. The language of section 552.302
does not indicate the legislature intended a governmental body to have a heavier
burden in this situation than when the information is subject to a statutory
prohibition on disclosure or implicates third-party interests.
15
B. The lawyer-client privilege is of fundamental importance to our
legal system and applies without regard to when the privilege is
asserted, the content of the privileged communication, or the
consequences of disclosure of the communication.
Whenever information is requested that constitutes a governmental bodys
confidential attorney-client communications, the policy of this State is in itself a
compelling reason to withhold the information from public disclosure under
section 552.302, without the need for further arguments to withhold particular
communications. Whether all privileges should be recognized as being compelling
is not the issue in this case. But if any privilege should be recognized as
inherently, categorically compelling, it is the lawyer-client privilege. That
privilege in all other contexts is recognized as being inviolate regardless of when
the privilege is asserted, the content of the privileged communication, or the
consequences of disclosure of the communication.
The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law. Upjohn Co. v. United States, 449
U.S. 383, 389 (1981); accord Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647
(Tex. 1995). Both the Supreme Court of Texas and the Texas Court of Criminal
Appeals rely on this privilege as vital in encouraging clients to confide in their
attorneys. 1 Steven V. Goode et al., Guide to the Texas Rules of Evidence
503.1, at 394 (3d ed. 2002).
16
[T]he purpose of the attorney-client privilege is to
promote the unrestrained communication and contact
between an attorney and client in all matters in which the
attorneys professional advice or services are sought,
without fear that these confidential communications will
be disclosed by the attorney, voluntarily or involuntarily,
in any legal proceeding.
West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978).
The attorney-client privilege is designed for the benefit
of the client by guaranteeing to the client the
confidentiality necessary to promote forthright
communications between the lawyer and the client.
Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). The privilege
promotes the effective administration of justice by promoting effective legal
services. Republic Ins. Co., 856 S.W.2d at 160 (citing Upjohn Co., 449 U.S. at
389). Because privileges represent societys desire to protect certain relationships,
a waiver of a privilege should not lightly be found. Id. at 163. The lawyer-client
privilege does not protect only important communications, nor does its
application depend on when the privilege is asserted, the degree of harm that will
result from disclosure, or the requesting partys need for the information. A client
never has to worry about which confidences will be protected and which will not.
17
C. The lawyer-client privilege is categorically compelling because it
is based on a policy recognizing that protecting the attorney-client
relationship is more beneficial than requiring public disclosure of
confidential attorney-client communications.
More than 100 years ago, the Supreme Court of the United States recognized
the importance of the attorney-client privilege in spite of any possible costs. In
Hunt v. Blackburn, 128 U.S. 464 (1888), the Court explained that the privilege is
founded upon necessity, in the interest and administration of justice, of the aid of
persons having knowledge of the law and skilled in its practice, which assistance
can only be safely and readily availed of when free from the consequences or the
apprehension of disclosure. Id. at 474. Although the privilege has a potential
cost, it is rooted in the imperative need for confidence and trust. Jaffee v.
Redmond, 518 U.S. 1, 10 (1996). The loss of evidence admittedly caused by the
privilege is justified in part by the fact that without the privilege, the client may not
have made such communications in the first place. Swidler & Berlin v. United
States, 524 U.S. 399, 408 (1998). The Supreme Court of Texas has also
recognized that the privilege is based on the principle that protecting the attorney-
client relationship is more beneficial than requiring complete disclosure. See
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 n.8 (Tex. 1993) (One of the
principles behind privileges is that the harm to the relationship protected by the
privilege is greater than the benefit gained through complete disclosure.) (citing 8
18
John Henry Wigmore, Wigmore on Evidence 2285, at 527 (J. McNaughton rev.
ed. 1961)).
[A] governmental body has as much right as an individual to consult with
its attorney without risking the disclosure of important confidential information.
Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.Waco 1997, writ
denied).
Governments must not only follow the laws, but are
under additional constitutional and ethical obligations to
their citizens. The [lawyer-client] privilege helps insure
that conversations between [government] officials and
attorneys will be honest and complete. In so doing, it
encourages and facilitates the fulfillment of those
obligations.
Ross v. City of Memphis, 423 F.3d 596, 602 (6th Cir. 2005).
[T]he traditional rationale for the privilege applies with
special force in the government context. It is crucial that
government officials, who are expected to uphold and
execute the law and who may face criminal prosecution
for failing to do so, be encouraged to seek out and
receive fully informed legal advice. Upholding the
privilege furthers a culture in which consultation with
government lawyers is accepted as a normal, desirable,
and even indispensable part of conducting public
business. Abrogating the privilege undermines that
culture and thereby impairs the public interest.
In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).
[T]he attorney-client privilege protects not only the
attorney-client relationship in imminent or ongoing
litigation but also the broader attorney-client relationship
outside the litigation context. Confidential legal advising
19
promotes the public interest by advising clients to
conform their conduct to the law and by addressing legal
concerns that may inhibit clients from engaging in
otherwise lawful and socially beneficial activities. This
is true for public clients no less than private ones. The
public interest is best served when agencies of the
government have access to the confidential advice of
counsel regarding the legal consequences of their past
and present activities and how to conform their future
operations to the requirements of the law.
Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 621 (7th Cir. 2010)
(citation omitted). If a governmental bodys officials cannot rely on confidentiality
when consulting with their attorneys, they will be reluctant to seek legal advice.
As a result, they will be less able to adhere to the law. This will irreparably harm
the governmental body, its officials, and its citizens.
In In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001), the Supreme Court
of Texas expressed these very concerns when it held that a consulting expert report
was exempt from required public disclosure, despite its being a completed report,
under the other law provision of Texas Government Code section 552.022.
4

4
Section 552.022 provides in part:
(a) Without limiting the amount or kind of information that is
public information under this chapter, the following categories of
information are public information and not excepted from required
disclosure under this chapter unless they are expressly confidential
under other law:
(1) a completed report, audit, evaluation, or investigation
made of, for, or by a governmental body, except as provided by
Section 552.108;
. . .
20
Although that case arose under a different exception from disclosure in the TPIA,
the courts discussion of the lawyer-client privilege indicates that it would
recognize protection of attorney-client confidentiality as a compelling reason under
section 552.302:
The Statesman asks us to construe the words
other law narrowly to exclude our rules of procedure
and evidence. It offers no authority for such a restrictive
reading of other law. The Statesman readily concedes
that if this Court were to agree with its interpretation, not
only work-product but attorney-client privileged matters
would have to be disclosed by governmental entities if
that information is contained in a completed report, . . .
evaluation, or investigation. Tex. Govt Code
552.022(a)(1).
The interpretation of section 552.022 advocated by
the Statesman would have a profound impact on
governmental bodies. School boards, counties, and
cities, to name but a few governmental entities, could not
obtain written legal advice when making decisions or
conducting operations. Governmental entities would
have to disclose all legal advice and strategy to those
with whom they were negotiating contracts or other
agreements, rendering the process decidedly one-sided.
Nor could governmental entities engage in frank,
searching self-evaluations that involved legal counsel
without disclosing those communications. As a
consequence, governmental entities might well choose to

(b) A court in this state may not order a governmental body or
an officer for public information to withhold from public
inspection any category of public information described by
Subsection (a) or to not produce the category of public information
for inspection or duplication, unless the category of information is
expressly made confidential under other law.

Tex. Govt Code 552.022 (emphasis added).
21
forego fruitful self-analysis and decide not to seek
needed legal advice.
The ability of governmental entities to pursue and
defend claims would also be significantly impaired. All
governmental bodies would be required to conduct
litigation at a severe disadvantage since written legal
advice and strategy would have to be disclosed to
opposing parties upon request. Governmental entities
would also be required to disclose to their opponents
written evaluations of settlement strategies, which would
impair a governmental entitys ability to negotiate the
lowest possible settlement. Taxpayers would bear the
increased costs.
Id. at 333.
D. The information in Plaintiffs Exhibit 1 is excepted from
disclosure under Texas Government Code sections 552.101 and
552.107.
The City invoked two exceptions to required public disclosure in its request
for an attorney general ruling: sections 552.101 and 552.107. These exceptions
are for information considered to be confidential by law, either constitutional,
statutory, or by judicial decision, Tex. Govt Code 552.101, and information
that . . . an attorney of a political subdivision is prohibited from disclosing because
of a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary
Rules of Professional Conduct, id. 552.107(1). The lawyer-client privilege in
Texas Rule of Evidence 503 and the prohibition against disclosure of a clients
confidential information in Texas Disciplinary Rule of Professional Conduct 1.05
bring the information in Plaintiffs Exhibit 1 within the scope of these two
22
sections. See City of Garland v. Dallas Morning News, 22 S.W.3d at 360 n.5
(Section 552.101 of the Texas Public Information Act exempts information
considered confidential by law, including information falling under the attorney-
client privilege.); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 335
(Tex. App.Austin 2000, pet. denied) (holding that a factual investigation that a
lawyer conducted on behalf of a client in the capacity of an attorney primarily
retained to provide legal services is protected from disclosure by the attorney-client
privilege found in the Texas Government Code section 552.107(1)); Hart v.
Gossum, 995 S.W.2d 958, 963 n.2 (Tex. App.Fort Worth 1999, no pet.) ([T]he
information considered to be confidential by law catch-all provision of section
552.101 certainly includes information governed by the attorney-client privilege.).
disclosure under section 552.101 because it is confidential
under the rules of evidence, which are law.
Texas Rule of Evidence 503 provides in pertinent part:
(b) Rules of Privilege.
(1) General rule of privilege. A client has a
privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications
made for the purpose of facilitating the rendition of
professional legal services to the client:
(A) between the client or a representative
of the client and the clients lawyer or a
representative of the lawyer . . . .
23
Tex. R. Evid. 503(b)(1)(A). The lawyer-client privilege belongs to the client. E.g.,
Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 n.7 (Tex. 1990). The attorney
may claim the privilege only on behalf of the client. Tex. R. Evid. 503(c). A
client has not only the privilege to refuse to disclose . . . confidential
communications, but also the privilege . . . to prevent any other person from
disclosing confidential communications. Tex. R. Evid. 503(b)(1)(A) (emphasis
added). A client under rule 503 is a person, public officer, or corporation,
association, or other organization or entity, either public or private, who is
rendered professional legal services by a lawyer, or who consults a lawyer with a
view to obtaining professional legal services from that lawyer. Tex. R. Evid.
503(a)(1). Texas case law recognizes that local governments and their officials are
entitled to communicate under the lawyer-client privilege with their official
attorneys. See, e.g., In re City of Dallas, No. 05-03-00516-CV, 2003 WL
21000387, at *2 (Tex. App.Dallas 2003, orig. proceeding) (mem. op.) (holding
that the lawyer-client privilege attached to documents involving efforts of a city
attorney in negotiating contracts, where he acted as both attorney and negotiator).
Therefore, the information in Plaintiffs Exhibit 1 is protected from disclosure by
Government Code section 552.101 and the rules of evidence.
Rule 503 constitutes law under section 552.101 because it is adopted
under express authority delegated by the legislature to the supreme court, Tex.
24
Govt Code 22.004, and the court of criminal appeals, id. 22.109. The
commonly understood meaning of law includes judicial decisions and rules
promulgated by the judiciary, such as rules of procedure and evidence. In re City
of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001), cited in In re XL Specialty Ins.
Co., 373 S.W.3d 46, 53 (Tex. 2012) (Our evidentiary rules have the force and
effect of statutes and should be construed accordingly.).
disclosure under section 552.107 because its disclosure is
prohibited by the ethics rules.
The duty of Texas government lawyers not to divulge privileged information
is established by court rule and statute. The supreme court has adopted the Texas
Disciplinary Rules of Professional Conduct, which are mandatory disciplinary
rules involving punishment extending to disbarment. The disciplinary rules
generally forbid Texas attorneys disclosure of their clients confidential
information:
[A] lawyer shall not knowingly:
(1) Reveal confidential information of a client
to:
(i) a person that the client has instructed
is not to receive the information; or
(ii) anyone else, other than the client, the
clients representatives, or the members,
associates, or employees of the lawyers law firm.
25
Tex. Disciplinary R. Profl Conduct 1.05(b). Confidential information in rule
1.05 includes information of a client protected by the lawyer-client privilege of
Rule 503 of the Texas Rules of Evidence. Tex. Disciplinary R. Profl Conduct
1.05(a). The disciplinary rules have the force of law under the States integrated
bar system. See State Bar Act, Tex. Govt Code ch. 81.
The Dallas city attorney is the attorney for each city officer and official, as
well as for the City, its city council, and its agencies and departments. The city
attorney is expressly designated by the Dallas City Charter to advise city officers
among other official clients. Dallas, Tex., Charter ch. VII, 3(7) (Appx Tab F).
5

Assistant city attorneys have the same powers and duties as the city attorney, id.
ch. VII, 2 (Appx Tab F), so their communications with city officials are likewise
privileged. Therefore, the information in Plaintiffs Exhibit 1 is protected from
disclosure by Government Code section 552.107 and the disciplinary rules.
E. The lawyer-client privilege is waived only by voluntary disclosure,
consent to disclosure, or offensive use; but the trial courts
decision effectively imposes a new theory of waiver under the
Texas Public Information Act.
The public policy supporting protection of confidential attorney-client
communications is so strong that the privilege that attaches to those

5
The City requests that the Court take judicial notice, under Texas Rule of Evidence 204, of the
provisions of its charter cited in this brief. The Dallas City Charter is recorded in the city
secretarys office as provided in Texas Local Government Code section 9.008(a). Recorded
charters or amendments are public acts. Courts shall take judicial notice of them, and no proof is
required of their provisions. Tex. Loc. Govt Code 9.008(b).
26
communications is waived only by the intent of the client or the clients authorized
representative. The privilege for governmental entities may be asserted or waived
by the responsible public official or body, and the identity of that responsible
person or body is a question of local governmental law. Restatement (Third) of the
Law Governing Lawyers 74 cmt. e (2000). Any waiver of the Citys lawyer-
client privilege would require a vote of a majority of a quorum of its city council.
See Dallas, Tex., Charter ch. III, 1 (Appx Tab F) (Except as otherwise provided
by this Charter, all powers conferred on the city shall be exercised by a city council
to be composed of 15 members, nominated and elected in the manner hereinafter
provided unless otherwise provided by law.), 9 (City Council Quorum); id. ch.
XVIII, 1 (The city council shall evidence its official actions by written
ordinances, resolutions or oral motion.), 3 (All ordinances and resolutions of the
city council, unless otherwise provided by state law, this charter, or the ordinance
itself, shall be final on the passage or adoption by the required majority pursuant to
one motion duly made, seconded and passed.), 4 (Every ordinance, resolution, or
motion shall require on final passage the affirmative vote of a majority of the
members present unless more is required by state law, this Charter, or ordinance.)
(Appx Tab F).
The Texas Rules of Evidence provide for a waiver of the lawyer-client
privilege by voluntary disclosure, consent to disclosure, or offensive use. A client
27
waives the privilege if the client or a predecessor . . . while a holder of the
privilege voluntarily discloses or consents to disclosure of the privileged matter.
Tex. R. Evid. 511(1). Under rule 511(1), a waiver by voluntary disclosure or
consent to disclosure is effected by the intent of the client or a predecessor while
holding the privilege, not by the intent or inadvertence of the clients
representative. Waiver may also occur through offensive use of character
testimony: if testimony as to the [clients] character or character trait is
proffered by either the client or the clients representative, the witness may be
cross-examined regarding relevant communications. Tex. R. Evid. 511(2). Thus, a
clients representative is presumed to have the clients authorization to waive the
privilege only when proffering character testimony. See id.
The rules of civil procedure are consistent with the rules of evidence
regarding waiver of the privilege. Under the rules of civil procedure, a party that is
untimely in asserting an objection to a discovery request waives the objection, see
Tex. R. Civ. P. 193.2(e), but the rules contain no deadline for asserting a privilege.
In re Graco Childrens Prods., Inc., 173 S.W.3d 600, 605 (Tex. App.Corpus
Christi-Edinburg 2005, orig. proceeding); see Tex. R. Civ. P. 193.3 (Asserting a
Privilege). Comment 3 to rule 193 states in part: The party must amend or
supplement the response if additional privileged information or material is found
subsequent to the initial response. Comment 4 states in part: A party who fails
28
to diligently screen documents before producing them does not waive a claim of
privilege. . . . To avoid complications at trial, a party may identify prior to trial
the documents intended to be offered, thereby triggering the obligation to assert
any overlooked privilege under this rule. A court has noted regarding comment 4:
Permitting a party to assert a privilege following an eleventh-hour notice by
opposing party of documents intended to be offered at trial appears to take waiver
of privilege assertion almost entirely out of the realm of possibility under the latest
version of the Rules. In re Lincoln Elec. Co., 91 S.W.3d 432, 437 (Tex. App.
Beaumont 2002, orig. proceeding [mand. denied]).
Case law also recognizes a waiver of the privilege, under the offensive use
doctrine. In Republic Ins. Co. v. Davis, 856 S.W.2d at 163, the supreme court held
that the lawyer-client privilege may be waived when the party asserting the
privilege seeks affirmative relief, the privileged information would probably be
outcome determinative of the case, and disclosure is the only means by which the
party seeking the attorney-client communications may obtain evidence.
The trial courts judgment does not fit into any of the recognized theories of
waiver. The court held that the City had to provide some additional compelling
reasona reason in addition to a demonstration that Plaintiffs Exhibit 1 contains
privileged attorney-client communicationsto establish a compelling reason under
section 552.302. (CR 406 [Appx Tab E].) The trial court thus recognized
29
requests under the TPIA as an odd situation requiring disclosure of attorney-client
communications, as to which the lawyer-client privilege has not been waived,
when the governmental body does not establish some additional, compelling
reason. The rule advanced by the trial court undermines the privilege and requires
governmental bodies to satisfy some additional standard without explaining what
that standard is. The policy underlying the lawyer-client privilege is irreconcilable
with a construction of section 552.302 that results in a loss of the privilege and
requires disclosure of confidential attorney-client communications.
This Court should harmonize the compelling reason requirement in section
552.302 with the policy supporting the lawyer-client privilege by holding that the
protection of information that is privileged as confidential lawyer-client
communications under the rules of evidence, civil procedure, and ethics is in all
cases a compelling reason to withhold public information. There should be no
requirement to show something more to persuade a court that there is a compelling
reason to withhold specific communications. Accordingly, the Court should
reverse and render judgment in favor of the City.
III. The Attorney General is not entitled to attorney fees, because he should
not be a substantially prevailing party under the TPIA and because in
any event the City had a reasonable basis in law for its suit and brought
the litigation in good faith.
The TPIA provides that [i]n an action brought under Section 552.324, the
court may assess costs of litigation and reasonable attorneys fees incurred by a
30
plaintiff or defendant who substantially prevails. Tex. Govt Code 552.323(b).
The Act further instructs: In exercising its discretion under this subsection, the
court shall consider whether the conduct of the officer for public information or the
governmental body had a reasonable basis in law and whether the litigation was
brought in good faith. Id.
Before a trial court may award fees, the statute also
requires that a number of other conditions be met: that
the action be brought under section 552.324; that the trial
court consider whether the public information officer
who withheld that information had a reasonable basis in
law for doing so; and that the trial court examine whether
the litigation was brought in bad faith.
Tex. Comptroller of Pub. Accounts v. Attorney Gen., 354 S.W.3d 336, 348 (Tex.
2010).
Because the Attorney General is not entitled to judgment for all the reasons
stated in this brief, the trial court erred in awarding fees to the Attorney General.
This Court should reverse and render judgment for the City, in which event the
Attorney General will not be a substantially prevailing party and will not be
entitled to an award of attorney fees.
The trial courts award of attorney fees to the Attorney General was error
also because the City had a reasonable basis in law for bringing its suit and the
litigation was brought in good faith. There is no evidence to support the Attorney
Generals claim that the City acted in bad faith. (See CR 101-02.) The only
31
arguments the Attorney General made were that this case is contrary to the Seventh
Court of Appeals decision in City of Dallas and that the City has filed, by the
Attorney Generals count, four cases involving whether confidential attorney-client
communications are excepted from disclosure for a compelling reason under
section 552.302. One of those four cases, City of Dallas, 279 S.W.3d 806, is not
binding authority because the supreme court reversed and rendered judgment for
the City on other grounds, 304 S.W.3d at 387. Another of the four cases involved
the informers privilege rather than the lawyer-client privilege. (See CR 112 [The
City subsequently learned that additional information requested by Mr. Martinez is
confidential and should be excepted from disclosure and . . . sent Defendant a letter
containing comments stating the reasons why some of the requested information is
excepted from required public disclosure under the informers privilege.
(Emphasis added.)].) In the third case, the Attorney General is appealing to the
Third Court of Appeals from a summary judgment in favor of the City, see Abbott
v. City of Dallas, No. 03-13-00686-CV (Tex. App.Austin) (see also CR 149-59
[petition in trial court]).
The City has filed and maintained this, the fourth case in good faith and with
a reasonable basis in law. The filing of this case was necessary to protect the
Citys confidential attorney-client communications, and the City pursued the legal
means necessary to vindicate its rights. There are clearly legitimate competing
32
interests on all sides of this case, and there is no binding authority on whether a
governmental body should be allowed to retain its lawyer-client privilege despite
being late in requesting an open records ruling. Unfortunately, the litigation in
City of Dallas, 304 S.W.3d 380, did not ultimately resolve the issue, so other
lawsuitsincluding this lawsuitbecame necessary.
CONCLUSION AND PRAYER
The trial court erred in concluding that the City must show something more
than that the information in Plaintiffs Exhibit 1 constitutes privileged confidential
communications between the City of Dallas and its attorneys to establish a
compelling reason to withhold that information. The Attorney General is not
entitled to recover attorney fees from the City. Therefore, the City requests that
this Court reverse the trial courts judgment and render judgment declaring that the
information in Plaintiffs Exhibit 1 is excepted from required public disclosure.
Respectfully submitted,

WARREN M. S. ERNST
Dallas City Attorney

/s/ James B. Pinson

Barbara E. Rosenberg
Texas Bar No. 17267700
James B. Pinson
Texas Bar No. 16017700
Assistant City Attorneys

33
1500 Marilla Street, Room 7BN
Dallas, Texas 75201
Telephone: 214-670-3510
Telecopier: 214-670-0622

COUNSEL FOR THE CITY OF DALLAS

CERTIFICATE OF SERVICE
I hereby certify that on January 2, 2104, the foregoing document was served
upon Rosalind L. Hunt, Assistant Attorney General, Attorney for Greg Abbott,
Attorney General of Texas by e-mail to Rosalind.Hunt@texasattorneygeneral.gov
pursuant to the agreement of the parties.
/s/ James B. Pinson
34
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface requirements and Type Style Requirements

1. This brief complies with the type volume limitation of Tex. R. App. P.
9.4(i)(2) because:
this brief contains 7,462 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(1).

2. This brief complies with the typeface requirements and the type style
requirements of Tex. R. App. P. 9.4(e) because:
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14-point Times New Roman.

/s/ James B. Pinson
Attorney for the City of Dallas

Dated: January 2, 2014.

APPENDIX
Final Judgment, dated May 13, 2013 (CR 409-11) ...........................................Tab A
Attorney General Letter Ruling No. 2008-08859 (CR 61-64) .......................... Tab B
Letter from the trial court dated November 3, 2010 (CR 284-86) .................... Tab C
Order on Motions for Summary Judgment (CR 289-90) ...................................Tab D
Letter from the trial court dated April 8, 2013 (CR 406-07) ............................. Tab E
Dallas, Tex., Charter chs. III, VII, XVIII .......................................................... Tab F
409
Nottce sent: f .na. .n """".o) None
Disp Parties:
Disp code: CVD / CLS tol
DC BK13142 PG475
Redacn& Dil
Clerk,_...LC{-I-__ Cause No. D-1-GV-08-001508
Flk,1'/ in "'11
of Court
unty, Texas
MAY, 3 2013 BP
CI1Y OF DALLAS,
Plaintiff,

. 4-,.tjg e M
"quez
IN THE DISTRICf COURTM'endola, Clerk
v. 126th JUDICIAL DISTRICT
GREG ABBOTT, ATTORNEY GENERAL
OF TEXAS,
Defendant. TRAVIS COUN1Y, TEXAS
FINAL JUDGMENT
On April 2, 2013, a hearing was held on the parties' Joint Motion for Judgment
on Agreed Statement of Facts. Plaintiff City of Dallas and Defendant Greg Abbott,
Attorney General of Texas, appeared by counsel of record and announced ready. This is
a lawsuit under the Public Information Act, by which Plaintiff sought declaratory relief
from a Letter Ruling of the Attorney General. The Court, having considered the Agreed
Statement of Facts, the evidence and motions incorporated by reference, the arguments
of counsel, and the applicable legal authority, enters the following declaration and
orders.
IT IS THEREFORE ORDERED AND DECLARED Defendant's Ground 2 is
GRANTED IN PART and Plaintiffs Ground 1 is DENIED.
THE COURT FINDS AND CONCLUDES Plaintiff did not meet its burden of
proof under Tex. Gov't Code 552.302 and failed to show a compelling reason to protect
the attorney-client privileged communications at issue from public disclosure.
Therefore, the information at issue is presumed open to the public.
TAB A - Final Judgment
410
DC BK13142 PG476
IT IS ORDERED AND DECLARED that the information at issue, specifically all
information responsive to Mr. Sam Merten's February 20, 2008 request, subject to
release by Tex. Att'y Gen. Letter Ruling 0R2008-08859, must be disclosed to the
requestor.
IT IS, FURTHER, ORDERED AND DECLARED that Defendant has substantially
prevailed in this matter and Plaintiff must pay attorney fees to Defendant. Defendant is
awarded his reasonable and necessary attorney fees, in the amount of $5,500.00 for
defending the lawsuit in the district court, Cause No. D-1-GV-08-001508;
Defendant is also awarded his reasonable attorney fees, contingent on the level of
appeal, in the amount as follows:
(a) an additional $5,000, for any appeal to the state court of appeals if the
Attorney General prevails at the court of appeals; and
(b) an additional $5,000 for any appeals to the state supreme court if the
Attorney General prevails at the Supreme Court of Texas;
All costs of the court are taxed against Plaintiff;
All relief not expressly granted is denied; and
This Order disposes of all claims between Plaintiff and Defendant as final and
appealable.
Signed this the
Final Judgment
l3> day of ~ ~ ~ ___ , 2013.
HONORABLE JUDGE GISELA D. TRIANA
PRESIDING JUDGE
Cause No. D-I-GV-08-001508 Page 2of3
411
APPROVED AS TO FORM:
ESB. PINS N
tate Bar No. 16017700
Assistant City Attorney
Office of the City Attorney
Dallas, Texas 75201
Telephone: (214) 670-3519
Facsimile: (214) 670-0622
ArrORNEY FOR PLAINTIFF
CITY OF DALLAS
Final Judgment
Cause No. D-I-GV-08-001508
DC BK13142 PG477
ROSALIND L. HUNT
State Bar No. 24067108
Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Telephone: (512) 475-4166
Facsimile: (512) 457-4677
ArrORNEY FOR DEFENDANT
GREG ABBorr, ArrORNEY GENERAL OF
TExAs
Page 3 of3
61
July 1,2008
Mr. Jesus Toscano, Jf.
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
Administrative Assistant City Attorney
City of Dallas
1500 Marilla Street
Dallas, Texas 75201
0R2008-08859
Dear Mr. Toscano:
You ask whether certain information is subj ect to required public disclosure under the
Public Information Act (the "Act"), chapter 552 ofthe Government Code. Your request was
assigned ID# 314747.
The City of Dallas (the "city") received a request for any information that was received by
or sent from named individuals regarding the convention center hotel or a named individual.
You claim that the submitted information is excepted from disclosure under section 552.1 07
of the Govenunent Code.
1
We have considered the exception you claim and reviewed the
submitted representative sample ofinformation.
2
IAlthough you also raise section 552.101 of the Govemment Code in conjunction with the
attorney-client privilege, under Texas Rule of Evidence 503, this office has concluded that section 552.101 does
not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990).
Thus, we will not address your claim that the submitted information is confidential under section 552.101 in
conjunction with rule 503. Further, the Texas Supreme COUlt has held that the Texas Rules of Evidence are
other laws that make inforn1ation confidential for the purposes of section 552.022 of the Government Code.
See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). The information for which you claim the
attorney-client privilege is not encompassed by section 552.022, and thus, we do not address rule 503.
2We assume that the representative sample of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decision Nos. 499 (1988),497 (1988). This open
records letter does not reach, and therefore does not authorize the withholding of, any other requested records
to the extent that those records contain substantially different types of information than that submitted to this
office.
EXHIBIT
POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL:(512)463-2100 WWW.O i
An Equal Employment Opportlmity Employer. Printed 011 Recycltd Paper :J
11
TAB B - Attorney General Letter Ruling No. 2008-08859
62
Mr. Jesus Toscano, Jr. - Page 2
Initially, we note and you acknowledge, that the city has not complied with the procedural
requirements of section 552.301 of the Governmental Code in requesting this ruling. See
Gov't Code 552.301(b), (e). Pursuant to section 552.302 of the Government Code, a
governmental body's failure to comply with the procedural requirements of section 552.301
results in the legal presumption that the information is public and must be released unless
a governmental body demonstrates a compelling reason to withhold the information to
overcome this presumption; See Hancockv. StateBd. of Ins. , 797 S.W.2d379, 381-82 (Tex.
App.-Austin 1990, no writ) (governmental body must make compelling demonstration to
overcome presumption of openness pursuant to statutory predecessor to Gov't Code
552.302); Open Records Decision No. 319 (1982). Generally, a governmental body may
demonstrate a compelling reason to withhold information by a showing that the information
is made confidential by another source of law or affects third party interests. See Open
Records Decision No."630 (1994). Although you raise section 552.107 of the Government
Code, this is a discretionary exception to public disClosure that protects the governmental
body's interest and may be waived. See Open Records Decision Nos. 676 at 10-11 (2002)
(attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (2000)
(discretionary exceptions generally). Therefore, you may not withhold any portion of the
submitted information under section 552.107 of the Government Code. We note that
portions of the submitted information may be subjectto sections 552.117 and 552.13 7 ofthe
Government Code, which can provide compelling reasons to withhold information.
3
Therefore, we will address secti()lls 552.117 and 552.137. .
Section 552.117(a)(1) provides that information is excepted from disclosure if it relates to
a current or former employee's home address, home telephone number, social security
number, or reveals whether the employee has family members. See Gov't Code
552.117(a)(I). The city is required to withhold this information if the employee timely
requested that this information be kept confidential under section 552.024 ofthe Government
Code. See Open Records Decision Nos. 622 (1994), 455 (1987); see generally Open
Records Decision No. 530 (1989) (statuig that whether particular piece of information is
public must be determined at time request for it is made). Therefore, pursuant to
section the city must withhold the personal information we have marked, if
the employee at issue timely elected confidentiality under section 552.024 of the
Government Code. If this individual did not make a proper election under section 552.024,
then the information we have marked may not be withheld under section 552.1 17(a)(1).
Section 552.137 provides that "an e-mail address ofa member of the public that is provided
for the purpose of communicating electronically with a governmental body is confidential
and not subject to disclosure under [the Act]," unless the owner ofthe e-mail address has
affirmatively consented to its public disclosure. Gov't Code 552.137(a)-(b). The types
of e-mail addresses listed in section 552.137(6) may not be withheld under this exception.
Office of the Attorney General will raise mandatory exceptions on behalf of a governmental
body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987),480 (1987),470
(1987).
12
63
,Mr. Jesus Toscano, Jr. - Page 3
See id. 552.137(c). Likewise
r
section 552.137 is not applicable to an institutional e-mail
address, an Internet website address, or an e-mail address that a governmental entity
maintains for one of its officials or employees. We have marked an e-mail address in the
submitted information that the city must withhold under section 552.137 ofthe Government
Code, unless the owner of the e-mail address has affirmatively consented to its public
disclosure or section 552. 137 (c) applies.
In summary, the city must withhold the information we have marked under
section 552.117(a)(1), if the employee at issue timely elected confidentiality. The city also
must withhold the e-mail address we have marked under section 552.137, unless the owner
of the e-mail address has affirmatively consented to its public disclosure or
section 552. 137(c) applies. The remaining information must be released.
This letter ruling is limited to the particular records at issue in this request and limited to the
facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and ofthe requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the
governmental body wants to challenge this ruling, the governmental body must file suit in
Travis County within 30 calendar days. ld. 552.324(b). In order to get the full benefit of
such a challenge, the governmental body must file suit within 10 calendar days.
ld. 552.353(b)(3). If the governmental body does not file suit over this ruling and the
governmental body does 'not comply with it, then both the requestor and the attorney
general have the right to file suit against the governmental body to enforce this ruling.
ld. 552.321(a). "
If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the
statute, the attorney general expects that, upon receiving this ruling, the governmental body
will either release the public records promptly pursuant to section 552.221(a) of the
Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the
Government Code. If the governmental body fails to do one of these things, then the
requestor should report that failure to the attorney general's Open Government Hotline,
toll free, at (877) 673-6839. The requestor may also file a complaint with the district or
county attorney. ld. 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can challenge that decision by suing the governmental
body. ld. 552.321(a); Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411
(Tex. App.-Austin 1992, no writ).
13
64
Mr. Jesus Toscano, Jr. - Page 4
Please remember that under the Act the release of information triggers certain procedures
for costs and charges to the requestor. Ifrecords are released in compliance with this ruling,
be sure that all charges for the information are at or below the legal amounts. Questions or
complaints about over-charging must be directed to,Hadassah Schloss at the Office of the
Attorney General at (512) 475-2497.
If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. Although there is no statutory deadline for
contacting us, the attorney general prefers to receive any comments within 10 calendar days
of the date of this ruling. '
Sincerely,
~ J . ~
Melanie 1. Villars
Assistant Attorney General
Open Records Division
MN/jh,
Ref: ID# 314747
Enc. Submitted documents
c: Mr. Sam Merten
The Dallas Observer
2501 Oak Lawn Avenue, Suite 700
Dallas, Texas 75219 -
(w/o enclosures)
14
284
200TH DISTRICT COURT
GISELA D. TRIANA-DOYAL
Judge
TRAVIS COUNTY COURTHOUSE
JAMEST. PARSONS
Staff Attorney
(512) 854-4916
JACOB STOKES
Court Operations Officer
(512) 854-9306
Mr. James B. Pinson
1500 Marilla Street, Rm. 7B North
Dallas, Texas 75201
Via fax to (214) 670-0622
P. O. BOX 1748
AUSTIN, TEXAS 78767
November 3. 2010
Ms. Brenda Loudermilk
Official Court Reporter
(512) 854-9325
LYDIA MARTINEZ
Court Clerk
(512) 854-5838
Chief, Open Records Litigation, OAG
P.O. Box 12548
Via fax to (512) 320-0167
RE: Cause No. D-I-GV-08-001S08; In the 126
th
Judicial District Court of Travis Co., Tx.
City of Dallas v. Greg Abbott
Dear Counsel,
On October 21,2010, after a hearing in the above-referenced cause, the Court considered
and took under advisement Plaintiffs Motion for Summary Judgment and Defendant's Cross-
Motion for Summary Judgment. After considering the motions, the responses, argument of
counsel, admissible summary judgment evidence, and the applicable law, the Court will find as
follows.
The Court will grant only partial summary judgment to lPlaintiff on Ground No. I, since
Defendant Attorney General does not dispute that the material qualifies as attorney-client
communications. However, the Court will deny summary judgment to PlaintifT City of Dallas
based on Ground No.2, wherein City of Dallas argues that the mere existence of documents
covered by attorney-client privilege is itself a compelling reason under Section 552.302 of the
Public Information Act.
The Court will also deny the Attorney General's summary judgment in full. The Court
will expressly deny Ground No. I of the Attorney General's motion, wherein the Attorney
General asserts that the provisions in Section 552.326(a) are juriisdictional prerequisites to filing
suit in District Court when a party does not timely request a ruling pursuant to Section 552.30 I.
While not characterizing this argument as a plea to the jurisdiction per se, the Attorney General
states that if the matter is not timely raised under Section 552.301, it cannot be "properly raised"
and is barred by sovereign immunity from suit under Section 552.326(a) unless an exception
applies under Section 552.326(b). Citing no cases interpreting Section 552.326 to make the time
limit in Section 552.30 I to be jurisdictional, the Attorney General relies upon the general cases
speaking of statutory time periods in other statutes. Not all administrative time periods are
1111111111111111111111111111111111111111111111111111111
001764805
TAB C - Letter from the trial court dated November 3, 2010
285
Cause No. D-I-GV-OS-OOI50S:
In the 126
111
Judicial District Court of Travis Co .. Tx.
City v/Dallas v. Greg Abbott
November 3. 20 I 0
jurisdictional. See Igal v. Brightstar Inform. Tech. Group, Inc., 2008 Tex. LEXIS 422,51 Tex.
Sup. Ct. J. 840 (Tex. 2008). The Attorney General's interpretation would be contrary to the terms
of Section 552.302 that allow for an untimely request in Subchapter G (Attorney General
Decisions). While such an untimely request brings forward the presumption of openness, the
presumption is rebuttable by showing compelling reasons to withhold the information in addition
to showing an underlying exception. If the party first submits a request to the Attorney General,
timely or not, the party may then seek judicial review of the: resulting decision pursuant to
Subchapter H (Civil Enforcement), and can also raise an exception within Section 552.326(b) for
the tirst time in court. The Court finds that the City of Dallas presented its attorney-client
privilege exception to the Attorney General and this Court has subject-matter jurisdiction over
this appeal.
The Court will also expressly deny Ground No.2 of the Attorney General's motion in
which the Attorney General argues that when a party fails to timely raise a discretionary
exception (here attorney-client privilege) under Section 552.301, the party forfeits the exception
without consideration as to whether compelling reasons support withholding the information
pursuant to Section 552.302.
The Court will also expressly deny Ground No.3 based upon the argument of collateral
estoppel. While the Attorney General's Office argues that City of Dallas is collaterally estopped
by the holdings in City of Dallas v. Abbott, both parties seem to equally ignore the relevant
holdings of that case and appear to be re-urging their same positions. See City of Dallas v.
Abbott. 279 S.W.3d 806 (Tex.App.-Amarillo 2007), reversed on other ground5, 304 S.W.3d
380 (Tex. 2010). Texas courts have consistently held that when a governmental body seeks to
withhold information after failing to satisfy the requirements of the Public Information Act
pursuant to Section 552.301, it must then show an additional compelling reason under Section
552.302 to withhold the information. The Amarillo Court of Appeals in City of Dallas v. Abbott
considered this exact issue - an untimely request seeking prote::ction for documents containing
attorney-client communications. The Court disagreed with both the Attorney General's and the
City of Dallas' positions:
Were we to adopt the Attorney General's position that simply failure to timely
request a decision waives the City's attorney-client privilege, the City would
never have had an opportunity to provide a compelling reason for the untimely
request. Likewise, were we to adopt the City's position that simply asserting
attorney-client privilege would be sufficient to allow it Ito withhold information,
the City would have no incentive to make a timely request
See City of Dallas v. Abbott, 279 S.W.3d 806, 811 (Tex.App.-Amarillo 2007), reversed in part,
304 S.W.3d 380 (Tex. 2010). The Amarillo Court of Appeals states that the City must both meet
the underlying exception and, when the request is untimely, also show additional information that
would demonstrate a compelling reason to withhold the information. See id., citing Simmons v.
Kuzmich, 166 S.W.3d 342, 350 (Tex.App.-Fort Worth 2005, no pet.). The Court also stated
Page 2 on
286
Cause No. D-I-GV -08-001508;
In the 126
th
City oIDa/las v. Greg Abbott
November 3.2010
that any untimely request to withhold attorney-client privileg"d information would reqUIre a
review on a case-by-case basis. See id.
The Supreme Court's majority decision reversed the finding that the request was untimely
and, therefore, it did not reach the issue of compelling reasons. See City of Dallas, 304 S. W.3d
at 387. The Court will note, however, that the case was tried to the bench and was not heard on
summary judgment, as this case is being presented, and was brought as a mandamus action and
not a declaratory judgment action as this one is. See id. at 383. The only substantive discussion
of these points by the Supreme Court was located in the dissent 10 the majority's finding that the
request was timely. In that dissent, Justice Wainwright agreed with the Attorney General that
"compelling reasons" require something in addition to the underlying exception that the
governmental body claims, but disagreed with the Attorney General's argument that "compelling
reasons" are restricted in the manner so urged here. See id. at 392.
Ms. Loudermilk, please draft an order to reflect my rulings above, circulate it to Mr.
Pinson for his approval as to form, and submit the order to me for my signature. Thank you.
Sincerely,
Gisela D. Triana-Doyal
Judge, 200th District Court
Travis County, Texas
Page 301'3
289
Notice sent: Final Interlocutory e
DlIP parties: 7'
Dllp code: CVD I CLS 7
DC BK11097 PG712
Py
Cause No. D-1-GV-08-001508

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CI'lY OF DALLAS,
Plaintiff,
v.
GREG ABBO'IT, ATIORNEY GENERAL
OF TEXAS,
Defendant.
IN THE DISTRICT COURT

126th JUDICIAL DISTRICT
TRAVIS COUN1Y, TEXAS
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
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On October 21,2010, a hearing was held onPlaintiffsmotion for summary judgment
and Defendant's cross-motion for summary judgment. All parties appeared by their
respective counsel of record. The Court having reviewed and considered the motions and
each ground raised in the motions, including the accompanying summary judgment
evidence, responses and replies, the other pleadings on file and argument of counsel, finds
that there is no issue of material fact and, as a matter of law, the motion for summary
judgment of the Attorney General should be denied on all grounds and that Plaintiffs
motion for summary judgment should be partially granted on Ground NO.1 only.
IT IS THEREFORE ORDERED:
Plaintiffs motion for summary judgment is GRANTED as to Ground NO.1;
Plaintiffs motion for summary judgment is DENIED as to Ground NO.2;
Defendant's motion for summary judgment is DENIED as to all grounds;
AJhests Ai -om.!!. tersa sarti ;!h "<ring 'I.e "aim:"",J1lft %Y
aU re1j9iaet enf)pessly 81. Ie 1 is cit ,!jOEl,
SIGNED this --I.&{L-- day of
. ,2011.

The Honorable Gisela D. Triana-Doyal
Presiding Judge
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TAB D - Order on Motions for Summary Judgment
290
.
JOHNP. BEA RAMP
Open Records Litigation
Administrative Law DMslon
/ P.O. Box 12548
Telephone: (512) 475-4292
Facsimile: (512) 320-0167
ATTORNEY FOR DEFENDANT
ESB.PIN ON
istant City Attorney
Office of the City Attorney
Dallas City Hall
Dallas, Texas 75201
Telephone: (214) 670-3519
Facsimile: (214) 670-0622
ATTORNEY FOR PLAINTIFF
Order on MSJs
cause No. D-l-GV-08-oo1508
DC BK11097 PG713
406
GISELA D. TRIANA
Judge
JAMEST. PARSONS
Staff Attorney
(512) 854-4916
JACOB STOKES
Court Operations Officer
(512) 854-9306
Mr. James B. Pinson
Dallas City Attorney's Office
1500 Marilla Street, Rrn. 7BN
Dallas, Texas 75201
Via fax to (214) 670-0622
200TH DISTRICT COURT
TRAVIS COUNTY COURTHOUSE
P. O. BOX 1748
AUSTIN, TEXAS 78767
April 8, 2013
Ms. Rosalind L. Hunt
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Via fax to (512) 457-4677
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LYDIA MARTINEZ
Court Clerk
(512) 854-5838
RE: Cause No. D-I-GV-08-001508; In the 126
th
City of Dallas v. Greg Abbott, Attorney General of Texas
Dear Counsel:
On April 2, 2013, the Court considered the merits in the above-referenced cause, which
were presented on an agreed statement of facts pursuant to Rule 263 of the Texas Rules of Civil
Procedure. After considering the statement of facts, the evidence offered, the legal arguments of
counsel and the applicable legal authority, the Court will find as follows regarding the grounds
asserted by the parties in their Joint Motion for Judgment on Agreed Statement of Facts.
The Court will grant the Attorney General's Ground No.2 in part. The Court agrees with
the Attorney General that when a party does not timely request an opinion regarding a public
information request, the governmental body may not simply assert the attorney-client privilege
generally to prevent the disclosure of the information, but must also show some additional
compelling reason for the particular information to be withheld. The City of Dallas argues
generally that the confidentiality of all attorney-client privileged information is a compelling
reason in and of itself. The argument essentially is that all attorney-client privileged information
may always be withheld by governmental bodies, even when an opinion from the Attorney
General is not timely requested. This Court rejects that argument. After reviewing the
documents in camera, the Court will find that the City of Dallas has not met its burden of proof
and persuasion in showing that the information requested should be protected.
The Court, however, does not grant the Attorney General's Ground No.2 fully, because
in the appropriate circumstances confidentiality could provide a compelling reason for particular
information to be withheld. Although a governmental body cannot argue generally that
confidentiality is sufficient to all attorney-client privileged information, there could be a cogent
and compelling argument made that allows particular information to be withheld based on
TAB E - Letter from the trial court dated April 8, 2013
407
Cause No. D-I-GV-08-00IS08;
In the 126
th
City of Dallas v. Greg Abbott. Attorney General of Texas
April 8, 20 \3; Page 2 of 2
confidentiality. Consequently, the Court does not foreclose all future reliance on the reason of
confidentiality, but the reason will likely need to be part of a comprehensive argument relating to
the particular information then involved.
Based upon the previous analysis, the Court will deny the City's Ground in full. The
Court will find that the presumption of openness for the information controls and City of Dallas
is required to release the information to the requestor pursuant to the Attorney General's Letter
Ruling OR2008-08859. After considering all litigation in this matter, including the Court's prior
rulings contained in Order on Motions for Summary Judgment signed on April 6, 2011, the Court
will find that the reasonable and necessary attorney's fees for the Attorney General to defend the
case through trial is $5,500.00, and awards that amount, along with the attorney's fees requested
by the Attorney General for purposes of appeal.
Ms. Hunt, please prepare an order that reflects the Court's ruling above, circulate it to Mr.
Pinson for approval as to form, and submit it to me for my signature. Thank you.
Sincerely,
d <'71'
..
Gisela D. Triana
Judge, 200th District Court
Travis County, Texas

CHARTER

city of

DALLAS, TEXAS

April 2006 Printing
TAB F - Dallas, Tex., Charter chs. III, VII, XVIII

Ch. II, 2 DALLAS CITY CHARTER Ch. III, 1

SEC. 2. GENERAL POWERS ADOPTED.

The enumeration of particular powers in the Charter shall not be held or deemed to be
exclusive, but in addition to the powers enumerated herein, implied thereby or appropriate to the
exercise thereof, the city shall have and may exercise all other powers which under the
Constitution and laws of the State of Texas, it would be competent for the Charter specifically to
enumerate. The city shall have and exercise all the powers conferred upon cities by what is
known as the Home Rule Amendment to the Constitution of the State of Texas and the Enabling
Act relative thereto, passed by the Thirty-third Legislature of the State of Texas, found in the
published laws of said legislature, Regular Session, pages 307 to 317, and effective July 7, 1913,
and all other laws passed by the legislature of the State of Texas, relating thereto, or which may
hereafter be passed by said legislature in relation to such matters.

SEC. 3. CHARTER REVIEW PROCESS.

At intervals of not more than 10 years (the first interval to occur not more than 10 years
after adoption of this section), the Charter shall be reviewed by a commission appointed by the
council. The commission shall complete the review and report to the council within one year
after its appointment. Notwithstanding this section, amendments to the Charter may at any time
be framed and proposed as provided by law. (Amend. of 11-8-05, Prop. No. 7)

CHAPTER III. CITY COUNCIL

SEC. 1. COMPOSITION OF CITY COUNCIL.

Except as otherwise provided by this Charter, all powers conferred on the city shall be
exercised by a city council to be composed of 15 members, nominated and elected in the manner
hereinafter provided unless otherwise provided by law. One member of the city council, Place
15, shall be elected by the qualified voters of the entire city and 14 members by the qualified
voters residing in a particular district, Places 1 through 14 respectively, as provided in Chapter
IV of this Charter. Members of council, Places 1 through 14, shall each be elected for a term of
two years and member of council, Place 15, shall be elected for a term of four years. The city
council members so elected shall take office on the first Monday following the 30th calendar day
after the final canvass of the general election, and they shall serve until their respective
successors have been elected and qualified. (Amend. of 4-3-76, Prop. No. 1; Amend. of 8-12-89,
Prop. No. 1; Amend. of 5-1-93, Prop. No. 1; Amend. of 5-3-97, Prop. No. 7; Amend. of 11-8-05,
Prop. No. 6)

9

Ch. III, 2 DALLAS CITY CHARTER Ch. III, 3A

SEC. 2. MAYOR'S ELECTION AND DUTIES.

(a) The person elected as member of council, Place 15, shall be the presiding officer
of the city council and the mayor of the City of Dallas. The mayor shall have a vote on all
matters coming before the city council, other than confirmation of appointments by the mayor,
unless otherwise disqualified, but no power to veto. The mayor shall be the official head of the
city government.

(b) In addition to the mayor's other duties, the mayor shall ensure that annual reports
are made as to the state of the city, its financial condition, its accomplishments, and its plan and
needs for the future. (Amend. of 4-3-76, Prop. No. 2; Amend. of 8-12-89, Prop. No. 1)

SEC. 3. COUNCIL QUALIFICATIONS.

Each member of the city council shall, in addition to the other qualifications prescribed
by law, be at the date of election a qualified voter of the city, and shall not be in arrears in the
payment of any taxes or other liabilities due the city. (Amend. of 11-8-05, Prop. No. 13)

SEC. 3A. LIMITATION OF TERMS.

(a) A person who has served as a member of the city council other than Place 15 for
four consecutive two-year terms shall not again be eligible to become a candidate for, or to serve
in, any place on the city council except Place 15 until at least one term has elapsed.

(b) A person who has served two consecutive terms as a member of the city council,
Place 15, shall not again be eligible to become a candidate for, or to serve in, Place 15 on the city
council until at least one term for Place 15 has elapsed.

(c) A "term" as used in Subsection (a) shall include any period of service during a
city council term when that period is in excess of one year, including a term from which the
member resigned.

(d) For the purpose of limiting terms under Subsection (b), a term includes a period
of time less than four years when the period of service by a mayor during a term is in excess of
731 days. (Amend. of 1-17-81, Prop. No. 2; Amend. of 8-12-89, Prop. No. 1)

10

Ch. III, 4 DALLAS CITY CHARTER Ch. III, 5

SEC. 4. COMPENSATION OF THE MEMBERS OF THE CITY COUNCIL.

(a) Effective October 1, 2001, each member of the city council, other than the mayor,
shall receive as compensation for services the sum of $37,500 for each year (prorated for partial
years) that the member serves on the city council. The mayor shall receive as compensation for
services the sum of $60,000 for each year (prorated for partial years) served as mayor on the city
council.

(b) For purposes of this section, a year means a 12-consecutive-month period.

(c) The compensation provided for in Subsection (a) will be paid on a biweekly basis.

(d) In addition to receiving the compensation provided for in Subsection (a), all
necessary expenses incurred by members of the city council in the performance of their duties
will be paid by the city, when authorized by the city council.

(e) If any city council member, including the mayor, misses more than 10 percent of
the total number of regular meetings held by the city council during any compensation year, then
the city council members compensation provided for under Subsection (a) for that year will be
reduced proportionately by the percentage of meetings missed. For purposes of this subsection,
regular meetings include both those held by the full city council and those held by the standing
city council committees on which a member serves. Meetings missed by a city council member
while he or she is on the official business of the city council and at the direction of the city
council will not be counted towards the percentage of missed meetings for which compensation
reduction is required under this subsection, but will be counted as though the member had
attended the meetings that are missed while so engaged in city business. (Amend. of 5-5-01,
Prop. No. 1)

SEC. 5. VACANCIES IN THE CITY COUNCIL; HOW FILLED.

(a) If a vacancy occurs on the city council, the vacancy must be filled at a special
election for that purpose unless a general election that would fill the vacant place is scheduled to
occur within 120 days after the vacancy occurred. As soon as practicable after the occurrence of
the vacancy, the city council shall call a special election to be held at the next authorized election
date that is at least 60 days after the date of the occurrence of the vacancy.

(b) A person selected to fill a vacancy on the city council shall serve only until the
next general city election for that place.

11


(c) If a candidate duly elected to the city council at the general election fails to take
the oath of office on or before 10 days after the beginning of the term, then that place will be
considered a vacancy and filled as provided in this section for other vacancies. If a candidate
elected to the city council at a special election fails to take the oath of office on or before 10 days
after the official canvass of the election, then that place will be considered a vacancy and filled
as provided in this section for other vacancies.

(d) In the event of the death or disability of all members of the city council for any
reason, such that the city council is unable to call an election to fill vacancies on the city council,
the city attorney is authorized to institute an action on behalf of the city in the district court of
Dallas County, Texas to obtain an appropriate order declaring an emergency and calling a special
election to fill the city council vacancies. If state law provides for the manner and method of
calling such an election, then state law shall be followed in lieu of the instituting of court action
by the city attorney. (Amend. of 4-3-76, Prop. No. 2; Amend. of 8-12-89, Prop. No. 1; Amend.
of 5-1-93, Prop. No. 6; Amend. of 11-8-05, Prop. No. 4)

SEC. 6. REGULAR MEETINGS.

(a) On the day the members of the city council take office, they shall meet at the
building designated as the official city hall, and thereafter all regular meetings of the city council
must be held in the city hall building in such locations and at such times as may be prescribed by
ordinance, resolution, or lawfully-posted notice. At least one regular meeting of the city council
must be held each week unless postponed or canceled for valid reasons as determined by the city
council.

(b) For purposes of this Charter, a regular meeting of the city council means a weekly
meeting of the full city council at which city council members vote or are briefed on matters of
interest to the city. (Amend. of 6-12-73, Prop. No. 5; Amend. of 8-12-89, Prop. No. 5; Amend.
of 5-1-93, Prop. No. 5)

SEC. 7. SPECIAL MEETINGS.

Special meetings shall be called by the city secretary upon the written request of the
mayor, the city manager or three members of the council. Any such notice shall state the subject
to be considered at the special meeting and may provide for the taking up of any other matters
presented at such meeting.

12


SEC. 8. OPEN MEETINGS; SPEAKERS.

(a) All official meetings of the city council and of all city council committees must be
open to the public as provided by state law. Those meetings involving an attorney and client
relationship, or other matters authorized by law to be deliberated in closed session, need not be
open to the public.

(b) The city council shall adopt rules of procedure that provide reasonable opportunity
for citizens to be heard by the city council. (Amend. of 5-1-93, Prop. No. 5)

SEC. 9. CITY COUNCIL QUORUM.

A quorum shall consist of nine members, except when the number of city council
members, due to vacancies, is reduced to less than nine, in which event a quorum shall consist of
all of the remaining city council members; but a less number than a quorum may adjourn from
time to time and compel the attendance of absent members in such manner and under such
penalties as may be prescribed by ordinance. (Amend. of 8-12-89, Prop. No. 1)

SEC. 10. COUNCIL VOTE.

No member shall be excused from voting except on matters involving the consideration of
his or her own official conduct, or where his or her financial interests are involved, and in these
instances, the member shall not vote. The council shall determine its own rules of procedure,
and may punish its members for misconduct, and may compel the attendance of absent members.
(Amend. of 11-8-05, Prop. No. 13)

SEC. 11. ELECTION AND DUTIES OF THE MAYOR PRO TEM AND DEPUTY
MAYOR PRO TEM.

The city council shall elect one of its members as mayor pro tem, who shall perform the
duties of mayor in the case of the absence or inability of the mayor to perform the duties of
office, who shall, during that time, be vested with all the powers belonging to the mayor. The
council shall also elect one of its members as deputy mayor pro tem to act in the absence of both
the mayor and the mayor pro tem and to exercise the powers of the mayor during that time.
(Amend. of 11-8-05, Prop. No. 13)

13


SEC. 12. CITY COUNCIL MAY SUMMON WITNESSES, ETC.

The city council shall have power to summon and compel the attendance of witnesses and
the production of books and papers before it whenever it may be necessary for the more effective
discharge of its duties, and shall have the power to punish for contempt before it with the same
fines and penalties as the county judge may punish for contempt before the county court. All
process shall be signed by the mayor and attested by the city secretary and shall be served by the
chief of police or any police officer of the said city.

The mayor, city secretary or any member of the city council shall have authority to
administer oaths in any matter pertaining to municipal affairs.

SEC. 13. POLICY-MAKING PROCEDURES AND OVERSIGHT
RESPONSIBILITIES.

(a) In the performance of the powers of government, it is the duty of the mayor and
the city council to make suitable provision for the assurance of adequate and appropriate prior
review and consideration of official actions to be taken by the city council, and to assure that a
high performance level of services to the citizens is maintained, responsiveness to the people is
provided, and accountability in municipal government is assured. To this end, the city council
shall:

(1) adopt rules of procedure governing the conduct of city council meetings
and the introduction, consideration, and method of review of actions to be considered by the city
council, consistent with the city manager's authority to present directly to the entire city council
the city manager's operational agenda;

(2) create a standing finance committee of the city council charged with the
responsibility for financial and audit oversight of the operations of city government;

(3) establish such additional standing committees and their duties as the city
council determines is appropriate; and

(4) establish the process by which the committees shall conduct their business
and review matters for city council consideration, consistent with the city manager's authority to
present directly to the entire city council the city manager's operational agenda.

14


(b) The mayor shall appoint the members and chairs of all city council committees,
and it shall be the duty of each member of the city council to serve and to participate on each
committee to which the member is appointed. The mayor shall have the power to remove and
reassign members to and from the various city council committees. (Amend. of 8-12-89, Prop.
No. 2)

SEC. 14. PROFESSIONAL AND ADMINISTRATIVE ASSISTANTS TO MAYOR
AND COUNCIL.

The city manager shall provide professional and administrative assistants to aid the
council in the performance of its official duties. Assistants to individual council members shall
be selected by the respective council members from a pool of applicants provided by the city
manager. An individual council member may, at any time, require the city manager to reassign
his or her council assistant and provide a pool of applicants from which the council member may
select a new assistant. Personnel filling these positions shall not be subject to civil service.
(Amend. of 6-12-73, Prop. No. 7; Amend. of 11-8-05, Prop. No. 2)

SEC. 15. NO INTERFERENCE BY COUNCIL WITH APPOINTMENTS OR
SUBORDINATES OF CITY MANAGER.

Neither the council nor any of its committees or members shall dictate or attempt to
dictate any person's appointment to, or removal from, office or employment by the city manager
or any of the city manager's subordinates, or in any manner interfere in the appointment of
officers and employees in the departments of administrative service vested in the manager by this
Charter. Except for the purpose of inquiry, the council and its members shall deal with that part
of the administrative service for which the city manager is responsible solely through such
manager, and neither the council nor any city council member shall give orders to any of the
subordinates of the city manager in those departments, either publicly or privately. This section
shall not apply to those professional and administrative assistants provided for in Section 14 of
this chapter. (Amend. of 6-12-73, Prop. No. 7; Amend. of 11-8-05, Prop. Nos. 2 and 13)

SEC. 16. EXPULSION OF COUNCIL MEMBER.

Willful violation of the foregoing provisions of this Charter by any member of the
council shall constitute official misconduct, and shall authorize the council, by a vote of two-
thirds of its entire membership, to expel such offending member from the council, if found guilty
after a public hearing, and thereby create a vacancy in the place held by such member.

15


SEC. 17. PROHIBITING HOLDING OR RUNNING FOR OTHER OFFICE.

(a) No person elected to the city council shall, during the term for which he or she
was elected, be appointed to any office or position of emolument in the service of the city. If a
member of any board appointed by the council or any appointive officer of the city becomes a
candidate for nomination or election to any public office, he or she shall immediately forfeit his
or her place or position with the city.

(b) A member of the city council shall forfeit his or her place on the council if he or
she becomes a candidate for nomination or election to any public office other than a place on the
city council or if he or she becomes a candidate for election to any different place on the city
council that requires taking office prior to the end of his or her elective term.

(c) If any employee of the city becomes a candidate for nomination or election to any
elective public office within Dallas County; or elective public office in another county within the
state, having contractual relations with the city, direct or indirect; or any elective public office
that would conflict with his or her position as an employee of the city, the employee shall
immediately forfeit his or her place or position with the city. (Amend. of 6-12-73, Prop. No. 8;
Amend. of 11-8-05, Prop. No. 13) NOTE: See Section 12A-10 of the Dallas City Code for
judicial interpretation of this section.

SEC. 18. INVESTIGATIONS.

The council, the city manager or any person or committee authorized by either or both of
them shall have power to inquire into the conduct of any department or office of the city; to
make investigations as to city affairs, and for that purpose may subpoena witnesses, administer
oaths and compel the production of books, papers and other evidence material to said inquiry.
The council shall provide by ordinance penalties for contempt in refusing to obey any such
subpoenas or failure to produce books, papers and other evidence, and shall have the power to
punish any such contempt in the manner provided by ordinance.

SEC. 19. INDEPENDENT AUDIT.

The city council shall cause an independent audit to be made of the books of account,
records, and transactions of all the administrative departments of the city at least once yearly.
Such audits, during such fiscal year, shall be made by one or more certified public accountants
who, for the three years next preceding, have held a certificate issued by the state board of

16


accountancy of the State of Texas, or by a state maintaining an equal standard of professional
requirements, which entitled the holder of such certificate to a Texas certificate. The auditor or
auditors to make the audit shall be selected by the city council, and shall be responsible to the
council. The duties of the auditor or auditors so appointed shall include the certification of all
statements required of the city manager in the annual budget estimate. Such statements shall
include a balance sheet, exhibiting the assets and liabilities of the city, supported by departmental
schedules, and schedules for each utility publicly owned or operated, summaries of income and
expenditures, supported by detailed schedules; and also comparisons, in proper classification,
with the last previous year. The report of such auditor or auditors for the fiscal year shall be
printed and a copy shall be furnished to each city council member and the city manager, and a
copy shall be kept available in the office of the city secretary for inspection by any citizen upon
request. A summary of such report of the auditor or auditors shall also be published once in a
newspaper of general circulation in the city. The original report of the auditor or auditors shall
be kept among the permanent records of the city. (Amend. of 6-12-73, Prop. No. 9; Amend. of
11-8-05, Prop. Nos. 11 and 13)

SEC. 20. CITY TREASURER AND SELECTION OF CITY DEPOSITORY.

(a) The person designated by the city manager as the chief financial officer of the city
shall serve as the city treasurer, who shall have the custody of all the public moneys, funds,
notes, bonds, and other securities belonging to the city. The city treasurer shall give such bond
as the council may require, conditioned on the faithful discharge of his or her duties, and the
premium of such bond shall be paid by the city. In addition to such bond, the city may require
the city treasurer to hypothecate securities in such amount as it shall prescribe.

(b) The city council shall, in accordance with state law, select and designate a
depository for the moneys and funds of the city. The city council may at any time, in accordance
with state law, select and designate more than one depository. The city treasurer shall be
responsible for administering the contract with the depository. The depository shall receive and
securely keep all moneys belonging to the city and make all payments from the same upon orders
signed by the city manager and countersigned by the city controller, after authorization of the
city council. The city treasurer shall ensure that a full and correct statement of receipts and
payments is provided to the city manager and the city council, at such times as the city manager
or council may require and in such form as the city manager may prescribe. The city treasurer
shall perform such other acts and duties as the city manager may prescribe. (Amend. of 4-2-83,
Prop. No. 6; Amend. of 4-6-85, Prop. No. 1; Amend. of 11-8-05, Prop. Nos. 8 and 13)

17

Ch. VI, 2 DALLAS CITY CHARTER Ch. VII, 3

(15) To perform such other duties as may be prescribed by this Charter, or by
ordinance or resolution of the council. (Amend. of 4-3-76, Prop. No. 4; Amend. of 11-8-05,
Prop. Nos. 5 and 13)

CHAPTER VII. LEGAL DEPARTMENT

SEC. 1. CREATION OF LEGAL DEPARTMENT; APPOINTMENT OF CITY
ATTORNEY.

There is hereby created a department to be known as the legal department. The director
or head of this department shall be a competent practicing attorney of recognized ability and
shall be known as the city attorney. The city attorney shall be a resident of the City of Dallas. If
at the time of appointment, the city attorney resides outside the City of Dallas, then he or she
shall move into the city within a time period required by the city council. The city attorney shall
be appointed by a majority vote of all the members of the city council and shall serve for a
period of two years from the date of appointment and thereafter until a successor is appointed,
unless sooner discharged by the council, and the city attorney shall not be discharged during his
or her term of office except upon a majority vote of all members of the city council. The city
attorney shall receive such compensation as shall be fixed by the council at the time of
appointment and such compensation may not be diminished during the term for which he or she
is appointed. (Amend. of 11-8-05, Prop. Nos. 2, 5, and 13)

SEC. 2. ASSISTANTS AND EMPLOYEES.

The city attorney shall have such assistants as shall be provided for by ordinance, and
they shall receive such compensation as may be fixed by the city council. Any assistant city
attorney may be discharged at any time by the city attorney. The city attorney and all assistant
city attorneys shall devote their entire time to the service of the city. All powers and duties
imposed on the city attorney may be exercised and performed by any assistant city attorney
under the direction of the city attorney. (Amend. of 4-2-83, Prop. No. 7; Amend. of 5-3-97,
Prop. No. 10)

SEC. 3. DUTIES OF THE CITY ATTORNEY.

The city attorney shall have the following powers and duties:

(1) Representing the city in all litigation and controversies.

28

Ch. VII, 3 DALLAS CITY CHARTER Ch. VII, 3

(2) Administering oaths and affidavits.

(3) Prosecuting, in person or by assistants, all cases brought before the
municipal court.

(4) Approving as to form in writing all proposed ordinances before they are
adopted, or filing with the city council, in writing, any objection to an ordinance.

(5) Drafting all proposed ordinances granting franchises.

(6) Inspecting and passing upon all papers, documents, contracts, and other
instruments in which the city may be interested.

(7) Being the legal adviser to the city manager, the council, or any committee
thereof, all official boards and commissions and all city officers and employees with respect to
any legal question involving an official duty or any legal matter pertaining to the affairs of the
City of Dallas.

(8) Whenever it is brought to the city attorney's knowledge that any person,
firm, or corporation exercising and enjoying any franchise or privilege from the City of Dallas
has been guilty of a breach of any condition of such grant, or has failed to comply in any material
matter with the terms and stipulations of such grant, reporting the matter to the city council,
together with all facts bearing upon the matter that may be brought to the city attorney's
attention. If the council determines that the complaints are well founded, it shall be the council's
duty to take such action as may be necessary, and, if the offending party fails or refuses to
conform to such order as the council may make with respect to the matter, it shall be the duty of
the council to direct the city attorney to institute suit against the offending party in the court
having jurisdiction over the matter to obtain a judgment of forfeiture of the franchise or
privilege.

(9) Advising the city council, the city manager, and all the departments of the
city concerning new or proposed state or federal legislation and representing the city before all
legislative bodies in matters affecting the city.

(10) Upon the city attorney's own initiative or upon the direction of the city
council, appearing in any and all litigation affecting the city and representing the city in such
manner as he or she deems to be to the best interest of the city, and instituting such legal
proceedings as may be necessary or desirable on behalf of the city.

29

Ch. VII, 3 DALLAS CITY CHARTER Ch. VIII, 2

(11) Hiring or discharging such clerical personnel or other personnel as may be
authorized for the city attorney's department by the city council.

(12) When deemed for the best interest of the city, advising or representing
officers and employees of the city in litigation in matters arising out of the official conduct of
their office or duties or in the course of their employment.

(13) Performing such other duties as the council may direct or request.
(Amend. of 11-8-05, Prop. Nos. 3 and 13)

CHAPTER VIII. MUNICIPAL COURTS

SEC. 1. CREATION.

The city council may, by ordinance, create and provide for municipal courts to be known
as municipal courts of the City of Dallas, as it may deem necessary, and may appoint one or
more municipal judges to serve each court. (Amend. of 6-12-73, Prop. No. 15)

SEC. 2. JURISDICTION, POWER AND FINES.

The municipal court shall have jurisdiction:

(1) over all criminal cases arising under the ordinances of the city within the
city limits and outside the limits to the extent authorized by state law;

(2) concurrent with the appropriate state court of all criminal cases arising
under the criminal laws of the state, where the offense is committed within the city limits of
Dallas and the penalty does not exceed that which is established for municipal courts by state
law; (Amend. of 6-12-73, Prop. No. 16)

(3) over the forfeiture and collection of bonds given in proceedings therein,
and to order the forfeiture of cash acceptance bonds upon failure of the defendant to appear, and
to accept same in lieu of a fine;

(4) over cases involving a license or permit granted by the city for any calling,
occupation, business or vocation. In addition to the punishment to be imposed therefor, the court
may suspend or revoke the license or permit so granted;

30

Ch. XVII, 10 DALLAS CITY CHARTER Ch. XVIII, 3

SEC. 10. TITLES AND SIGNATURES.

All property purchased, acquired or given to the city, shall be taken in the name of the
city, and if given, deeded or devised to the park and recreation department of the city, or to the
park and recreation board of the city, shall be deemed to be the property of the city to be used for
park purposes. All deeds, leases, conveyances and contracts on behalf of the park and recreation
board of the city shall be signed by the president of the park and recreation board and attested by
its secretary, in addition to the signatures necessary on behalf of the city as herein otherwise
provided.

CHAPTER XVIII. ORDINANCES AND RESOLUTIONS.

(Renumbered by Amend. of 6-12-73, Prop. No. 43)

SEC. 1. COUNCIL ACTION.

The city council shall evidence its official actions by written ordinances, resolutions or
oral motion. The use of one method or the other shall not affect the validity of the action, except
in those instances where one or the other is required by state law or this Charter.

SEC. 2. STYLE OF ORDINANCES AND RESOLUTIONS.

The style of all ordinances shall be: "BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF DALLAS", and the style of all resolutions shall be: "BE IT RESOLVED BY
THE CITY COUNCIL OF THE CITY OF DALLAS." In each case words of like import may be
used, but such caption may be omitted when said ordinances are published in book form, or are
revised and digested under the order of the council.

SEC. 3. PASSAGE.

All ordinances and resolutions of the city council, unless otherwise provided by state law,
this charter, or the ordinance itself, shall be final on the passage or adoption by the required
majority pursuant to one motion duly made, seconded and passed. Where the state law or this
charter provides for a different procedure before the action of the council may become final, then
in that event, the council shall follow the procedure required.

70

Ch. XVIII, 4 DALLAS CITY CHARTER Ch. XVIII, 7

SEC. 4. VOTING.

The vote upon the passage of any ordinance, resolution or motion shall be taken by voice
vote unless otherwise requested by a member of the city council, in which case a roll call vote
shall be taken. The results of all voting shall be entered upon the minutes of the proceedings of
the council. Every ordinance, resolution, or motion shall require on final passage the affirmative
vote of a majority of the members present unless more is required by state law, this Charter, or
ordinance. (Amend. of 6-12-73, Prop. No. 33; Amend. of 8-12-89, Prop. No. 13)

SEC. 5. EFFECTIVE DATE.

All ordinances and resolutions passed by the city council shall become effective
immediately from and after final publication, except in the following instances:

(1) where the state law or other provisions of this Charter provide otherwise,
in which case the effective date shall be the earliest time therein prescribed;

(2) where the ordinance or resolution prescribes a different effective date;

(3) where an ordinance or resolution is adopted under the initiative and
referendum provisions of this Charter, in which case the effective date thereof shall be
immediately after the canvass of the election.

SEC. 6. OFFICIAL RECORDS.

The city secretary shall keep an accurate record of all actions taken by the city council
and shall preserve each ordinance, resolution, and motion of the city council as permanent
records of the city. (Amend. of 4-2-83, Prop. No. 3)

SEC. 7. PUBLICATION OF ORDINANCES.

The descriptive caption or title of each ordinance stating in summary the purpose of the
ordinance and the penalty for violation of the ordinance, shall be published at least once in a
newspaper of general circulation in the city, unless otherwise provided by state law or this
Charter, in which event the specific provisions shall be followed. (Amend. of 11-8-05, Prop. No.
11)

71


SEC. 8. CODIFICATION OF ORDINANCES.

The city council shall have power to cause the ordinances of the city to be printed, in
code form, and shall have the same arranged and digested as often as the council may deem
advisable; however, failure to print the ordinances as herein provided shall not affect the validity
of the same.

SEC. 9. HOW PLEAD.

In all judicial proceedings, it shall be sufficient to plead any ordinance by caption, or by
the number of sections thereof wanted, and it shall not be necessary to plead the entire ordinance
or section. All ordinances of the city when printed and published and bearing on the title page
thereof "Ordained and Published by the City Council of the City of Dallas," or words of like
import, shall be prima facie evidence of their authenticity and shall be admitted and received in
all the courts and places without further proof.

SEC. 10. APPROVAL OF MAYOR NOT NECESSARY.

The approval or signature of the mayor shall not be necessary to make an ordinance or
resolution valid.

SEC. 11. INITIATIVE AND REFERENDUM OF ORDINANCES.

Any proposed ordinance may be submitted to the city council in the form in which the
petitioner desires the ordinance to be passed, by a petition filed with the city secretary in the
following manner:

(l) A committee of at least five registered voters of the City of Dallas must
make application to the city secretary and file an intention to circulate a petition, giving the date
and the proposed ordinance to be circulated. Unless the final petition, with the required number
of signatures is returned within 60 days from this date, it will not be received for any purpose.

(2) The petition must contain the names of a number of qualified voters in the
city equal to 10 percent of the qualified voters of the City of Dallas as appears from the latest
available county voter registration list.

72


(3) The petition must comply in form, content, and procedure with the
provisions of Section 12, Chapter IV of this Charter. (Amend. of 4-2-83, Prop. No. 2; Amend. of
5-1-93, Prop. No. 6)

SEC. 12. CITY SECRETARY TO EXAMINE PETITION.

Within 30 days after the date the petition is filed, the city secretary shall examine and
ascertain whether or not the petition is signed by the requisite number of qualified voters and
shall attach to the petition a certificate showing the result of the examination. If the petition is
found to be sufficient, the city secretary shall submit the petition to the city council without
delay. (Amend. of 4-2-83, Prop. No. 2; Amend. of 5-1-93, Prop. No. 6)

SEC. 13. CITY COUNCIL EITHER TO PASS ORDINANCE OR CALL ELECTION.

If the petition, properly signed, is presented to the city council, the council shall either:

(1) pass the ordinance without alteration within 20 days after the attachment
of the city secretary's certificate of sufficiency to the accompanying petition (subject to
referendary vote under provisions of this Charter); or

(2) after the attachment of the city secretary's certificate of sufficiency to the
petition accompanying the ordinance, promptly call a special election, at which the ordinance,
without alteration, shall be submitted to a vote of the people. (Amend. of 11-8-05, Prop. No. 13)

SEC. 14. BALLOTS; ONE OR MORE ORDINANCES MAY BE VOTED;
PROVISION FOR REPEAL.

The ballots used when voting upon said ordinance shall be in a manner so as to apprise
the voters of the nature of the proposed ordinance and contain two propositions so that they may
vote either "for" or "against" the propositions indicating their preference on the ordinance. If a
majority of the qualified electors voting on said proposed ordinance shall vote in favor thereof,
such ordinance shall thereupon become a valid and binding ordinance of the city, and any
ordinance proposed by petition, or which shall be adopted by a vote of the people, cannot be
repealed or amended except by a vote of the people.

Any number of proposed ordinances may be voted upon at the same election, in
accordance with the provisions of this section of the Charter, but more than one special election
shall not be held in any period of six months.

73

Ch. XVIII, 14 DALLAS CITY CHARTER Ch. XIX, 1

The city council may submit a proposition for the repeal of any such ordinance or for
amendments thereto, to be voted upon at any succeeding general city election, and should such
proposition so submitted receive a majority of the votes cast thereon at such election, such
ordinance shall be repealed or amended accordingly.

SEC. 15. PROMULGATION OF ORDINANCES BEFORE ELECTION.

Whenever any ordinance or proposition is required by the Charter to be submitted to the
voters of the city at any election, the city secretary shall cause the ordinance or proposition to be
printed in a newspaper of general circulation in the city and published once at least 10 days prior
to election. (Amend. of 11-8-05, Prop. No. 11)

SEC. 16. ADOPTION OF CODES.

The city council may adopt technical codes, manuals or other recognized standards by
reference, so long as the same, with any amendments, are on file with the city secretary. When
so adopted they shall be considered the same as though fully set out in the ordinance adopting
the same.

CHAPTER XIX. ASSESSMENT AND COLLECTION OF TAXES

(Renumbered by Amend. of 6-12-73, Prop. No. 43)

SEC. 1. PROPERTY SUBJECT TO TAXATION.

All property, real, personal or mixed, lying and being within the corporate limits of the
city on the first day of January, shall be subject to taxation, excepting such property as may be
exempt from taxation under the Constitution, and the laws of the State of Texas. It shall be the
duty of the tax assessor and collector on or before the first day of July of each year or as soon
thereafter as practicable, to make and return to the city council a full and complete list and
assessment of all property, both real and personal, held, owned or situated in the city on the first
day of January of each year and not exempt from municipal taxation. (Amend. of 4-2-83, Prop.
No. 5)

74

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