TX eLaw: Hospital vs. Anonymous Blogger

In Re: Does 1-10, No. (Tex.App. - Texarkana [6th Dist.], Dec. 12, 2007)(Opinion by Justice Jack Carter ) (Internet law, blogging, first amendment protection, anonymous speech, defamation, libel suit, business disparagement)
Disposition: Appeals court grants mandamus relief

O P I N I O N

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributor John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog (1) as fac_p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital. The ISP, SuddenLink Communications, is not a party to the lawsuit; Essent PRMC is the corporate identifier for Paris Regional Medical Center. For reasons stated in the opinion, we conditionally grant the writ of mandamus.

I. Factual and Procedural Background

The Hospital sued Does 1-10 alleging that Doe 1 had set up a blog that contained many scurrilous comments that "unfairly disparage and criticize the Hospital, its employees and the doctors who admirably serve patients there on a daily basis" and that his postings were defamatory. The Hospital also alleged that some postings to the blog had disclosed confidential patient health information and generally complained that the postings "are otherwise actionable under federal and state law." (2)

Procedurally, the Hospital filed a petition against the Does--combined with an "ex parte request to non-party to disclose information" directed at SuddenLink, explicitly based on 47 U.S.C.A. § 551(c) (West 2001 & Supp. 2007), asking the trial court to direct SuddenLink to disclose the identities of the Does. On the day of filing (June 19, 2007), the court granted the motion. On July 23, the court issued a second "agreed" order, stating that the Hospital and SuddenLink had agreed to amend the prior order which provided for notice to the Does with opportunity for them to respond. If no response was made, SuddenLink was to disclose the information. Counsel James Rodgers appeared on behalf of the unnamed subscriber by letter filed August 6, and thereafter at a hearing conducted September 7. At that time, the only information before the trial court consisted of an unsworn petition, with no evidentiary attachments or affidavits. No evidence was presented at the hearing, only argument of counsel. At the conclusion of the hearing, the trial court allowed additional briefing to be submitted by Wednesday of the following week.

The trial court sent a letter to counsel dated September 14 in which, after quoting excerpts from two cases, it found that good cause had been shown and the "burden by plaintiff has been met to meet the requirements of the exceptions to the Communication Act to grant the request by Plaintiff . . . ." and directed counsel to prepare an order for the court's signature.
On September 24, counsel for Doe 1 filed a letter pointing out the inherent weakness of the Hospital's case as pled, correctly noting that no evidentiary support had been provided by the Hospital in support of its claims and that, in the absence of any such support, even the lowest level of review suggested by the courts as authorizing such discovery had not been met.
Three days later, on September 27, for the first time, counsel for the Hospital provided a petition with some form of evidentiary support--in the form of an affidavit from a representative of the Hospital stating that the statements in the petition were true and attached copies of the blog and various documents generated by the Hospital in an attempt to bolster its breach of contract claims against Does 2-10.

On the following Monday, October 1, the trial court signed an order explicitly stating it had considered the September 27 filing, as well as everything that had previously been presented to the court, overruled Doe's objection to the agreed order, and ordered SuddenLink to disclose the name and address of the subscriber.

II. Requirements for Mandamus Relief

A. General Requirements

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

With respect to the resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). Review of a trial court's determination of legal principles controlling its ruling applies a much less deferential standard, since the trial court has no discretion in determining what the law is or applying the law to those facts. Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); Walker, 827 S.W.2d at 840. Consequently, the trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Huie, 922 S.W.2d at 927-28.

B. Adequate Remedy at Law

We must initially determine whether the Relator has another adequate remedy at law, such as a normal appeal. Such a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842. A party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error or evaluate its impact. This occurs when the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privilege, West v. Solito, 563 S.W.2d 240 (Tex. 1978), or trade secrets without adequate protections to maintain the confidentiality of the information, Automatic Drilling Machs., Inc. v. Miller, 515 S.W.2d 256, 259 (Tex. 1974).

This situation falls squarely within that reasoning. If discovery is allowed, then the identity of the blogger is revealed, the damage is done, and it cannot be rectified. Thus, mandamus is appropriate relief.

Further, a remedy by appeal may also be inadequate when it is insufficient to protect a specific constitutional right asserted by the relator. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); In re Hinterlong, 109 S.W.3d 611, 621 (Tex. App.--Fort Worth 2003, orig. proceeding). Thus, there is also irreparable harm that would be done to the defendant's constitutional right to anonymous free speech if we allowed discovery to proceed without constitutionally adequate safeguards.

C. Clear Abuse of Discretion

The remaining question is whether the trial court correctly applied the law to its ruling, and as "[a] trial court has no 'discretion' in determining what the law is or applying the law to the facts," Huie, 922 S.W.2d at 927-28; Walker, 827 S.W.2d at 840, the issue may be addressed through mandamus. "Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ." Walker, 827 S.W.2d at 840; In re Rozelle, 229 S.W.3d 757, 761 (Tex. App.--San Antonio 2007, orig. proceeding).

Application of the law is not limited to purely substantive matters. The Texas Supreme Court has in two recent cases addressed the application of procedural rules under such a rubric, and we shall do likewise. See In re Pirelli Tire, L.L.C., No. 04-1129, 2007 Tex. LEXIS 980 (Tex. Nov. 2, 2007); In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004).

A failure by the trial court to analyze or apply the law correctly, as when a discovery order conflicts with the Texas Rules of Civil Procedure, constitutes an abuse of discretion. Walker, 827 S.W.2d at 840; In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003). Therefore, a discovery order that entirely disregards the Texas Rules of Civil Procedure is likewise an abuse of discretion.
It is within our purview to determine whether the court properly analyzed and applied the law to this particular portion of the proceeding.

III. Standing

The Hospital argues Relator, Doe 1, does not have standing to assert this petition for writ of mandamus. It is true Doe 1 has not been served with citation and his appearance was in response to the court's order requiring notice to him and allowing an opportunity to respond. However, the rules of discovery allow any person "from whom discovery is sought, and any other person affected by the discovery request" to move for a protective order. Tex. R. Civ. P. 192.6(a). One of the reasons to ask for such relief is to protect the movant from "invasion of personal, constitutional, or property rights." Tex. R. Civ. P. 192.6(b). A court may then make any order in the interest of justice that denies or limits the requested discovery. Tex. R. Civ. P. 192.6(b)(1), (2). The request of Doe 1 that his name should not be released is based on a possible invasion of personal and constitutional rights. We believe the rules of procedure authorize a relator to move for such protection and hence grants standing to bring this action. See In Re Shell E & P, Inc., 179 S.W.3d 125, 130 (Tex. App.--San Antonio 2005, orig. proceeding). We realize the trial court did not appear to grant this relief based on any rule of discovery in the Texas Rules of Civil Procedure, but as will be explained, in failing to do so, we believe the trial court abused its discretion.

IV. Procedural Mechanism for Obtaining Identity

A. The Cable Communications Policy Act of 1984

The Hospital sought an order of discovery of the identity of blogger Doe 1 pursuant to 47 U.S.C.A. § 551 (West 2001 & Supp. 2007), the Cable Communications Policy Act of 1984 (CCPA).

The court's initial order to disclose was explicitly made pursuant to the CCPA, as was its later
agreed order. The final order does not state the basis for the decision, but it also only overrules Doe's objections to the prior order in setting a new time line for production. It is clear from the sequence of events that the court did consider and believed it was properly applying the federal statute.

The CCPA generally prohibits the disclosure of subscriber information, but provides a safe haven for a cable operator's disclosure of such information when made pursuant to court order.
(1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber . . . .
(2) A cable operator may disclose such information if the disclosure is--
. . . .
(B) subject to subsection (h) of this section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed; . . . .
47 U.S.C.A. § 551(c)(1), (2). Subsection (h) governs a cable operator's disclosure of subscriber information to a governmental entity, which may only occur pursuant to a court order, and only on proof by clear and convincing evidence of reasonable suspicion of criminal activity and the materiality of the information sought. 47 U.S.C.A. § 551(h). Subsection (h) also provides for a contest of such claim. Id.

The first question that must be answered is whether the federal statute incorporates the provisions in subsection (h) (clear and convincing evidence of a crime), which applies to governmental agencies, into Section 2(B). The difficulty is that Section 2(B), which allows the disclosure pursuant to a court order, specifically states that such is "subject to subsection h" which allows governmental entities to obtain a court order only on showing by clear and convincing evidence that a crime has been committed.

There is an ongoing analytical inconsistency among the few courts that have addressed the application of this statute. Some courts have been willing to apply the statute to discovery by nongovernmental parties. Others have stated that the ability to obtain a proper court order under Section 2(B) is explicitly "subject to" the requirements of subsection (h).

An example of a situation where a court found the "subject to" language inapplicable to private parties is found in Fitch v. Doe, 869 A.2d 722 (Me. 2005), where the Maine Supreme Court held that a Doe's argument that the statute should be read as a whole misapprehends the plain language of the statute. Section 551(c)(2)(B) allows a cable operator to disclose subscriber information when ordered to do so by a court. Section 551(h) imposes a stricter burden when it is a governmental entity seeking that information. If the government wants the information, it must demonstrate, by clear and convincing evidence, reasonable suspicion of criminal activity. When the party seeking information is not a governmental entity, § 551(h) is not applicable.
Id. at 728 (citation omitted).

The Maine court based its interpretation of Section 551(c)(2)(B) on an analogous holding by the Seventh Circuit in CSC Holdings, Inc. v. Redisi, 309 F.3d 988 (7th Cir. 2002). In Redisi, the Seventh Circuit vacated a district court order denying the defendant's discovery request that the plaintiff, a cable operator, turn over copies of its subscriber lists--so that the defendant could contest the plaintiff's damage calculations based on those lists. Id. at 996. Citing Section 551(c)(2)(B), the Seventh Circuit stated that "[t]here is no privilege or restriction on releasing customer records to a non-governmental entity pursuant to a court order." Id.

Other courts have recognized that the CCPA provides that only "a governmental entity may obtain personally identifiable information concerning a cable subscriber pursuant to a court order . . . ." 47 U.S.C.A. § 551(h). Further, the CCPA does not independently authorize a private (i.e., nongovernmental entity) party's ex parte subpoena to a cable operator. Interscope Records v. Does 1-7, 494 F.Supp.2d 388, 390 (E.D. Va. 2007); United States v. Kennedy, 81 F.Supp.2d 1103, 1110-11 (D. Kan. 2000).

We will follow the interpretation given by the majority of the courts that have addressed this issue and hold that the statute provides a sanctuary for cable operators who disclose personal information to private parties pursuant to a valid court order without imposing the requirements found in subsection (h). However, we also find that the federal statute is not a procedural vehicle for obtaining such a court order. That must be accomplished through some procedural device, either state or federal, depending on the forum of the case. In Texas state courts, the rules of discovery provide ample methods for obtaining information from third parties. In this case, the trial court ordered the release of this private information without regard to any procedural rule that would authorize such release.

Most cases involving this type of question have been formulated under the rules of discovery applicable to that forum. Under the federal rules, as well as our state rules, parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1); Tex. R. Civ. P. 192.3. This is a broad-ranging ability, but is not one which overarches all possible contests to discovery, as acknowledged in the rules themselves. Thus, in most cases involving Internet lawsuits based on libel or breach of contract, the scenario is that suit is brought against a Doe defendant, and the plaintiff at some point early in the proceeding seeks to discover his or her identity. That relief is sought, not through some all-controlling federal statutory exception--but instead through the discovery tools of that forum, as applied in balancing the right to litigate libel with the constitutional protection of free anonymous speech. (3)

We believe that the federal statute was not intended or designed as a procedural vehicle to obtain identities of subscribers to the network; the intent of the statute is to prevent the disclosure of such names. But an exception exists, allowing disclosure (and therefore protecting the cable operator from liability for wrongful disclosure) when a proper court order requires such disclosure. We point out that it also does not give carte blanche to a trial court to otherwise release the information without any further consideration. The federal statute does explicitly require that the subscriber be notified before such information is released.

The cases cited by the Hospital in support of the use of the federal statute to justify issuance of the order are not on point--they do not rely on the statute as a mechanism of discovery, but on procedural rules from the forum in which the case was being tried.

To the extent the trial court determined the CCPA serves as an independent ground for justifying discovery in this case, the trial court reached an erroneous legal conclusion.
That does not, however, end our analysis. The next question is whether the trial court was bound to utilize Texas discovery procedures and abused its discretion by failing to do so, and a corollary question of whether there is such a procedure in our discovery rules that would apply? Or finally, was the court free to fashion a form of relief outside the bounds of the Texas Rules of Civil Procedure?

B. Bill of Discovery

We have concluded that the order issued here was not authorized by the CCPA itself and that no attempt was made to comply with the traditional rules of discovery. Did the trial court have any other basis for issuing this order? To answer that question, it is necessary to discuss the history and usage of the equitable bill of discovery in Texas practice. One of the earliest articles published in the Texas Law Review was authored by W. S. Simkins. W. S. Simkins, Comment, Bills of Discovery-Act of Thirty-Eighth Legislature, 2 Tex. L. Rev. 98 (1923). In that article, the author called to the bar's attention a new statute that had been enacted by the Legislature in 1923--codified as Article 2002, which authorized a bill of discovery. In discussing this development, the article traces the use of such an equitable bill of discovery.

The bill of discovery originated because under the common law adopted in Texas in 1840, parties to the suit were incompetent to testify. To provide relief from this rule, under the common law a bill of discovery could be filed in chancery court and that court could order a "full confession of the facts" which could be used as evidence in the cause at law. But, according to the article, after Texas provided for written interrogatories in 1846, the separate suit in chancery was unnecessary. Then in 1858, a bill (4) was passed permitting oral examination of the parties. Apparently that procedure was in place until 1897 when "some lawyer, evidently having a case which necessitated a change for his convenience," authored a bill preventing the taking of depositions "ex parte" when a corporation was a party to the suit. So in 1923, the Legislature enacted Article 2002, which allowed the trial courts to issue bills of discovery and grant relief in accordance with the usages of courts of equity. Id.

Article 2002 remained in our law until the "new" Rules of Civil Procedure were enacted in 1941, at which time Article 2002 was repealed and Rule 737 incorporated its terms. Repealed by Rules of Civil Procedure (Acts 1939, 46th Leg., p. 201, § 1). Finally, in 1999, the rules regarding discovery were substantially changed and Rule 737 was replaced and limited by Rule 202. Tex. R. Civ. P. 737, repealed by Order of Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999; see Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions (1998), http://adrr.com/law1/rules.htm.

So the rule now containing vestiges of the bill of discovery has been incorporated into Rule 202. Neither that rule, nor any other procedural rule, was used in this proceeding. Does the trial court still retain authority to issue such a discovery order by virtue of the common law equitable bill of discovery? We think not.

Prior to the enactment of any statute or rule authorizing a bill of discovery, the Texas Supreme Court addressed the issue in Cargill & Dennis v. Kountze Bros., 86 Tex. 386, 25 S.W. 13 (1894). The court stated: "If the courts of equity in England ever entertained bills of discovery of this character, and if the jurisdiction became incorporated into our system of jurisprudence by the adoption of the common law, we are still of opinion that it is no longer the law of this State." Id. at 400. As mentioned earlier, the Legislature enacted a law in 1923 specifically allowing a bill of discovery. After the passage of the bill of discovery statute, an opinion dealt again with this issue. Chapman v. Leaverton, 263 S.W. 1083 (Tex. Civ. App.--Fort Worth 1924, writ ref'd) (motion for rehearing overruled combined with a number of other cases at 269 S.W. 1024, 1029 (Tex. 1925)). In Chapman, the court held that the Legislature's act of reviving the bill of discovery "intended to confer some additional remedy in favor of the plaintiff or the judgment creditor, in order that he might discover facts which would be advantageous to him in the furtherance of his cause of action or in the collection of his judgment." Id. at 1086. In denying the writ of error, the Texas Supreme Court agreed that the Fort Worth Court of Civil Appeals had "correctly construed" the bill of discovery statute. 269 S.W. at 1069. This interpretation was followed in Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993 (1940), and Hastings Oil Co. v. Tex. Co., 149 Tex. 416, 234 S.W.2d 389 (1950).

These events demonstrate that in 1894 the Texas Supreme Court declared that the jurisprudence of the State of Texas did not include a common law equitable bill of discovery. Since that time, the bill of discovery has been available only by statutory or rule authorization. No such general bill of discovery statute or rule now exists; instead, the discovery process in Texas is now thoroughly controlled by specific rules. Based on these authorities, even if the order in this case could be considered one pursuant to a motion for a bill of discovery, we find that the trial court did not have authority to grant such a discovery order other than as sanctioned and regulated by the Texas rules for discovery.

A trial court does, of course, have inherent power to facilitate litigation of lawsuits and prevent abuse of process--although that is partially promoted by, and partially guided by, the Texas Rules of Civil Procedure. Waguespack v. Halipoto, 633 S.W.2d 628, 629 (Tex. App.--Houston [14th Dist.] 1982, writ dism'd w.o.j.). Thus, between the court's "inherent power" and the applicable rules of procedure and evidence, judges have broad, but not unfettered, discretion in handling trials. Metzger v. Sebek, 892 S.W.2d 20, 38-39 (Tex. App.--Houston [1st Dist.] 1994, writ denied). (5)

In jurisdictional contexts, the Texas Supreme Court has consistently held that trial courts have only such powers and jurisdiction as are directly provided by law, and, in addition thereto, they have such further powers and jurisdiction as are reasonably proper and necessary,-that is, as ought to be inferred, from the powers and jurisdiction directly granted.
Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 273-74 (1939).

In the context of procedural rules involving discovery, the Texas Supreme Court has similarly
held to the doctrine that Texas courts have no inherent powers, either at law or in equity, not even to originate new process to enable parties to secure evidence in support of their cases. . . . So if the trial court had authority to issue the order complained of it must be found in the written law or it must arise by reasonably necessary implication therefrom.
Hastings Oil Co. v. Tex. Co., 149 Tex. 416, 234 S.W.2d 389, 393 (1950) (cited with approval in Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex. 1969)). (6)

An extensive system is in place governing procedures applicable to this situation; in the absence of some extraordinary reason to depart from those procedures, trial courts do not have the inherent authority to create their own ad hoc procedures.

C. The Texas Discovery Rules

Texas discovery rules provide a mechanism for an orderly process of discovery which was not utilized in this case. One relevant portion of the rule governing discovery from nonparties is Tex. R. Civ. P. 205.1(c), (d), which authorizes discovery from a nonparty by serving a subpoena compelling production of documents and tangible things under the rule. That rule also allows a party to compel discovery from a nonparty by obtaining a court order under Tex. R. Civ. P. 196.7, 202, or 204. (7)

Another source of authority is Tex. R. Civ. P. 205.3, which provides that a party may compel production from a nonparty by serving notice and a subpoena compelling production or inspection. Rule 205.3(d) provides that the nonparty must respond to the notice and subpoena in accordance with Tex. R. Civ. P. 176.6. Rule 176.6(d) provides a procedure for objecting effectively to the issuance of discovery orders under 176.6(c) (referencing Rule 193.7). Subsection (d) states that the nonparty may object and withhold material claimed to be privileged. Under some circumstances, Rule 176.6(e) further allows counsel to seek a protective order under the procedures set out in Tex. R. Civ. P. 192.6.

There is also a specific section specifying how hearings are to be noticed, heard, and conducted on objections and assertions of privilege. Tex. R. Civ. P. 193.4. (8)

Similarly, under Tex. R. Civ. P. 199.2(b)(5), which sets out procedures for noticing oral depositions, if the witness is a nonparty, the request must comply with Tex. R. Civ. P. 205, and the nonparty's response to the request is governed by Tex. R. Civ. P. 176 and 205.
Rule 202, which supplanted the former Rule 737 relating to a bill of discovery, allows the taking of a deposition to investigate a potential claim or suit. Tex. R. Civ. P. 202.1(b).

The result is this: An order compelling production could have been issued pursuant to the rules of procedure. The mechanisms set out in the rules of discovery that might authorize and regulate such an order (and also the protections to the person inherent in those procedures) were not utilized. Instead, counsel sought and originally obtained an ex parte order entirely outside the rules, based on the application of a statute that is not relevant to this situation. By not attempting to follow any rules regarding discovery, the parties and the court were operating without rules concerning such matters as when objections or privileges should be raised, when evidence must be submitted, when and if a protective order was available, and many other matters. Finally, when no rules are employed, it is impossible to adequately review the propriety of the actions taken by the parties and the court.

D. Conclusion

Texas rules provide a comprehensive procedure for seeking discovery. They were not used, over direct complaint by counsel for Doe 1. We have found no other procedural basis for a trial court to issue such a discovery order.

A trial court's ruling that requires production beyond what our procedural rules permit is an abuse of discretion. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004); see, e.g., Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (orig. proceeding). Similarly, a writ may issue where the trial court's order improperly restricts the scope of discovery defined by the Texas Rules of Civil Procedure. Lindsey v. O'Neill, 689 S.W.2d 400, 401 (Tex. 1985).

We conclude that, when a discovery order entirely fails to apply the rules of discovery, issuance of mandamus requiring the trial court to utilize those rules and procedures is appropriate. (9)
Because of the unusual posture of this case, and because of the dearth of Texas authority on this subject, we will attempt to provide some guidance for the trial court in applying the rules of discovery in light of the types of constitutionally-based objections that have already been raised to the discovery, should this matter be presented again in this cause.

V. Constitutional Requirements for Ordering the Disclosure of Anonymous Internet Authors

A. First Amendment Protection

The First Amendment protects anonymous speech. See Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199-200 (1999). The Supreme Court has noted that "[a]nonymity is a shield from the tyranny of the majority." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356 (1995). Indeed, "[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Id.

First, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. McIntyre, 514 U.S. at 342.

Second, the protections of the First Amendment extend to the Internet. See Reno v. ACLU, 521 U.S. 844, 870 (1997). "Courts have recognized the Internet as a valuable forum for robust exchange and debate." Sony Music Entm't, Inc. v. Does 1-40, 326 F.Supp.2d 556, 562 (S.D.N.Y. 2004); Best W. Int'l v. Doe, No. CV-06-1537-PHX-DGC, 2006 WL 2091695 (D. Ariz. July 25, 2006, order).

Speech over the Internet is afforded no lower level of First Amendment scrutiny. Reno, 521 U.S. at 870. Indeed, the Supreme Court has characterized Internet speech by the same terms as traditional political speech: "Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." Id. at 870; see also Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005) ("Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering."). (10)

Several courts have noted that Internet anonymity serves a particularly vital role in the exchange of ideas and robust debate on matters of public concern. See, e.g., Doe v. 2themart.com Inc., 140 F.Supp.2d 1088, 1092-93 (W.D. Wash. 2001) (Internet exchange of ideas "driven in large part by the ability of Internet users to communicate anonymously"); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). The protection of Internet speech also includes the protection of anonymous electronic speech. See, e.g., 2themart.com Inc., 140 F.Supp.2d at 1092 ("The right to speak anonymously extends to speech via the Internet.").

B. Limitations on the Right of Free Speech

The First Amendment is not intended to protect unconditionally all forms of expression. See Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) (libelous statements are outside the realm of constitutionally protected speech). The right to speak anonymously is therefore not absolute. However, this right would be of little practical value if there was no concomitant right to remain anonymous after the speech is concluded. 2themart.com Inc., 140 F.Supp.2d at 1093. Those who suffer damages as a result of tortious or other actionable communications on the Internet are clearly able to seek a remedy. Therefore, while the anonymous subscribers in this case have a First Amendment right to anonymous speech on the Internet, that right is subject to limitation. Polito v. AOL Time Warner, Inc., No. 03CV3218, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340 (Pa. D. & C. Jan. 28, 2004). The courts must balance the right to communicate anonymously with the right to hold accountable those who engage in communications that are not protected by the First Amendment. Thus, although the right to speak anonymously "would be of little practical value if . . . there was no concomitant right to remain anonymous" in the face of a civil action subpoena, a civil litigant has an interest in asserting his or her rights through the litigation process against an anonymous tortfeasor. Id.; see Cahill, 884 A.2d at 456. As in other venues, therefore, anonymous (electronic) speakers may not freely defame individuals without facing civil responsibility for their acts. McMann v. Doe, 460 F.Supp.2d 259, 263 (D. Mass. 2006).

There are no cases in Texas directly on point. This is, however, far from the first court to be confronted with this problem. The common threads among the various jurisdictions involve available means for discovery and the proper application of that means when confronted with a constitutional right that otherwise prevents the information from being obtained. Thus, the question is: When does a plaintiff have a right to discover the identity of the writer in light of the constitutional right to anonymous free speech?

As noted by a number of the cases referenced in this opinion, the chilling effect on the First Amendment right of free speech that results from making such "confidential" information too easily accessible is apparent. (11) The cases spend a considerable--and appropriate--amount of time discussing the national interest in not inappropriately restricting the free flow of thought and discussion by unsupported threats of litigation. However, they also acknowledge that the anonymity of the blogger can be overcome under certain circumstances.
To that extent, the cases are in accord. The point of departure is in determining exactly how much and what kind of proof of libel or defamation is enough to justify cutting though the constitutional protection to allow the identification of the anonymous contributors.

C. Quantum of Proof Required

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Alvis Coatings, Inc. v. John Does One Through Ten, No. 3:04CV374-H, 2004 U.S. Dist. LEXIS 30099 (W.D.N.C. Dec. 2, 2004). Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations. See Polito, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340.
We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. See extensive discussion about the application of this standard in Best W. Int'l, 2006 WL 2091695. The court in Cahill described the test as: "[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

As correctly noted in Best Western, other courts have recognized a range of possible showings--"ranging (in ascending order) from a good faith basis to assert a claim, to pleading sufficient facts to survive a motion to dismiss, to a showing of prima facie evidence sufficient to withstand a motion for summary judgment and, beyond that, hurdles even more stringent." Best W. Int'l, 2006 WL 2091695, at *4; see Cahill, 884 A.2d at 457.

The Arizona court recognized that the conduct was purely expressive--where in Polito a type of harassment was involved--and that the Does were expressing "their views on issues of interest to BWI members and governors in a forum specifically designed for an exchange of opinions and ideas anonymously." The court concluded that such speech is entitled to substantial First Amendment protection.

The district court imposed a summary judgment standard before discovery was available to discover the identities of the John Doe defendants. As described, the standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to establish the plaintiff's prima facie case.

The court opined, citing Cahill:

[T]o obtain discovery of an anonymous defendant's identity under the summary judgment standard, a defamation plaintiff must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiff's control.
Best W. Int'l, 2006 WL 2091695; Cahill, 884 A.2d at 465. (12)

The court noted that, because pleading standards are so lenient, it could not conclude that the complaint was asserted in bad faith, or that it would likely be subject to a motion to dismiss.
Thus, if the standard for permitting discovery of the John Doe Defendants' identities required only good faith or the ability to survive a motion to dismiss, BWI's proposed discovery would be permitted and the Defendants' First Amendment right to anonymous speech would be defeated. A good faith allegation of wrongdoing, devoid of factual detail, would suffice.
Best W. Int'l, 2006 WL 2091695.

The court held that:

[M]ore is needed before a defendant's First Amendment rights may be eliminated. The Court must examine facts and evidence before concluding that a defendant's constitutional rights must surrender to a plaintiff's discovery needs. The summary judgment standard will ensure that the Court receives such facts and evidence. Id.

We agree with this analysis. (13) The Hospital has made several claims based not only on defamation, but also business disparagement and other matters. We will not attempt to express an opinion on the merits of these arguments. We anticipate that, if this matter is again presented to the trial court, this opinion will provide guidance concerning the procedure to be employed and the standard for testing the evidence.

For the reasons stated, we conditionally grant the writ of mandamus and order the trial court to vacate its order and proceed in accordance with this opinion. We are confident the trial court will comply, and our writ will issue only if it does not.

Jack Carter
Justice
Date Submitted: October 24, 2007
Date Decided: December 12, 2007

1. The term "blog" is a shorthand version of the word "Weblog." A Weblog is an Internet Web site that displays in chronological order the postings by one or more individuals and usually has links to comments on specific postings. American Heritage Dictionary of the English Language (4th ed. 2006), available at http://dictionary.com.
2. The suit against Does 2-10 is not implicated here; the trial court's order was directed solely at the ISP, ordering it to reveal the name of Doe 1. In that portion of the lawsuit, the Hospital alleged that Does 2-10 had improperly revealed patient information by posting on the blog that might, under the federal act known as HIPAA, make the Hospital civilly liable to those patients or their survivors.
3. Some examples of discovery disputes in this context include Rocker Mgmt. LLC v. John Does 1 Through 20, No. MISC 03-003 3 CRB, 2003 U.S. Dist. LEXIS 16277 (N.D. Cal. 2003, order) (not designated for publication); Virologic, Inc. v. Doe, Nos. A101571, A102811, 2004 Cal. App. Unpub. LEXIS 8070 (Cal. Ct. App. Sept. 1, 2004) (not designated for publication); La Societe Metro Cash & Carry France v. Time Warner Cable, No. CV030197400S, 2003 Conn. Super. LEXIS 3302 (Conn. Super. Ct. Dec. 2, 2003) (not designated for publication); John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005) (applying Delaware procedural rules); Dendrite Int'l, Inc. v. Doe, No. 3, 775 A.2d 756 (N.J. Sup. Ct. App. Div. 2001); In re Greenbaum v. Google, Inc., No. 102063/07, 2007 N.Y. Misc. LEXIS 7274 (N.Y. Sup. Ct. Oct. 23, 2007); Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Dev., Inc., No. 0425, 2006 Phila. Ct. Com. Pl. LEXIS 1 (Phila. Ct. Com. Pl. Jan. 4, 2006).
See Alvis Coatings v. Does 1-10, No. 3:04 CV 374-H, 2004 U.S. Dist. LEXIS 30099(W.D. N.C. Dec. 2, 2004, order) (relying on Fed. R. Civ. P. 26(b)(1) for discovery mechanism); Doe v. 2themart.com Inc., 140 F.Supp.2d 1088, 1090 (D. Wash. 2001) (subpoena under Fed. R. Civ. P. 45(a)(2)); In re Subpoena Duces Tecum to Am. Online, Inc., No. 40570, 2000 Va. Cir. LEXIS 220 (Va. Cir. Ct. 2000, order), rev'd & remanded on other grounds, 542 S.E.2d 377 (Va. 2001) ("Pursuant to Va. Code § 8.01-411").
See also Arista Records LLC. v. Does 1-19, No. 07-1649 (CKK), 2007 U.S. Dist. LEXIS 78416 (D.D.C. Oct. 11, 2007) (Fed. R. Civ. P. 45); Arista Records LLC v. Does 1-9, No. 07-CV-00628-EWN, 2007 U.S. Dist. LEXIS 25191 (D. Colo. Apr. 4, 2007) (Fed. R. Civ. P. 45); McMann v. Doe, 460 F.Supp.2d 259, 263, 265 (D. Mass. 2006) (discussing ex parte subpoenas under federal civil procedure, copyright, and other statutes); UMG Recordings, Inc. v. Does 1-4, No. 06-0652 SBA, 2006 U.S. Dist. LEXIS 32821 (N.D. Cal. Mar. 6, 2006) (Fed. R. Civ. P. 45 and Local Rule 7-11(a)); In re Baxter, No. 01-00026-M, 2001 U.S. Dist. LEXIS 26001(W.D. La. Dec. 19, 2001) (Fed. R. Civ. P. 27); Apple Computer, Inc. v. Doe 1, No. 1-04-CV-032178, 2005 WL 578641, at *2 (Cal. Super. Ct. Mar. 11, 2005) (California discovery statute).
4. See 4 H.P.N. Gammel, The Laws of Texas 1822-1897, at 982-83, http://texashistory.unt.edu/permalink/meta-pth-6730:986.
5. See Tex. R. Civ. P. 270 (allowing court discretion to permit "additional evidence" to be offered); Tex. R. Civ. P. 286 (stating that "[a]dditional argument may be allowed in the discretion of the court" in event jury receives further instructions after having retired); Tex. R. Evid. 611(a) (giving court "reasonable control" over interrogation of witnesses and presentation of evidence); Tex. Employers Ins. Ass'n v. Loesch, 538 S.W.2d 435, 440 (Tex. Civ. App.--Waco 1976, writ ref'd n.r.e.) (holding that court may place some limits on voir dire examination). The trial court's authority to dismiss for want of prosecution stems from Rule 165a of the Texas Rules of Civil Procedure as well as the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). "By rule, statute, and their own inherent power, trial courts have broad authority to sanction litigants for specific misconduct." In re N.R.C., 94 S.W.3d 799, 807 n.4 (Tex. App.--Houston [14th Dist.] 2002, pet. denied); see also Onstad v. Wright, 54 S.W.3d 799, 804 (Tex. App.--Texarkana 2001, pet. denied).
6. "Whatever may be the powers of courts of other States, there can be no doubt that the courts of Texas must look to the Constitution of this State, the enactments of the Legislature, and the common law, for their authority to proceed as requested in this case [to require an injured plaintiff to submit to a physical examination], and, if the authority did not exist at common law, and has not been conferred by the Constitution, nor by the statutes of this State, then no court in Texas has the power to force any citizen to submit to a physical examination under such circumstances." Austin & Nw. R.R. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903).
7. Rule 196.7 involves entry onto land, and is inapplicable. Tex. R. Civ. P. 202.1, et seq. controls the method of obtaining depositions to perpetuate testimony or to investigate a potential claim. Tex. R. Civ. P. 204.1, et seq. explains how a party may obtain an order compelling another party to submit to physical or mental examination.
8. We note that, had that procedural safeguard been applied, the late-filed affidavits and exhibits tendered by the Hospital post-hearing, and four days before the order was signed, would not have been considered. The rule requires such evidence to be served at least seven days before the hearing. Tex. R. Civ. P. 193.4(a).
9. We recognize that Tex. R. Civ. P. 191.1 allows the procedures and limitations set out by the rules of discovery to be modified by agreement, or by court order for good cause. Neither situation exists in this case. There was no agreement, and there was no pleading or finding that good cause existed to modify the rules of discovery in this suit.
10. Anonymous speech has a long history, including Alexander Hamilton's contributions to the Federalist Papers in which he used the pseudonymn "Publius." See, e.g., The Federalist No. 23 (Alexander Hamilton).
11. See Glenn Harlan Reynolds, Libel in the Blogosphere: Some Preliminary Thoughts, 84 Wash. U.L. Rev. 1157 (2006); Daniel J. Solove, A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U.L. Rev. 1195 (2006).
12. In Cahill, the Delaware Supreme Court held that a public figure was not required to produce evidence of actual malice since such proof would be almost impossible before the author is identified. Cahill, 881 A.2d at 464 ("a public figure defamation plaintiff must only plead and prove facts with regard to elements of the claim that are within his control"). The failure to require such proof has been criticized. See McMann, 460 F.Supp.2d at 267.
The actual malice requirement is an additional level of constitutional protection that applies only in particular circumstances for the imposition of liability, not discovery. A rule for identifying anonymous writers should be one of general application rather than one attempting to incorporate the special provision required for unusual situations. If an actual malice finding is required to impose liability, that will be determined at a later stage of the proceedings.
13. Adapting the summary judgment standard to Texas procedure, the trial court should view the matter as if Doe 1 had filed a traditional motion for summary judgment establishing its defense by alleging that his identity was protected from disclosure by virtue of the First Amendment right of free speech. To obtain the requested discovery, the Hospital would then be required to produce evidence which would be sufficient to preclude the granting of a summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) ("[t]he nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense").

Photography assignment gives student police record; film confiscated

Amarillo Court of Appeals is brave enough to find that student's suit to clear himself by declaratory judgment is not barred by sovereign immunity. Another pro-government anti-civil-libs court might have ruled that government may do whatever it pleases in the name of sovereign immunity, or that a child-protection policy enforced by police cannot be challenged in a civil suit, rather than viewing the matter as an unlawful curtailment of individual liberties and unlawful taking of private property - the film the police confiscated from the student covering a youth sports event.

Larry Ackers v. City of Lubbock, No. (Tex.App.- Amarillo, Nov. 29, 2007)(Opinion by Justice Hancock)(constitutional challenge to city policy)(Before Chief Justice Quinn, Justices Hancock and Pirtle)
Appeal from 72nd District Court of Lubbock County

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Appellant, Larry Ackers, appeals the trial court's judgment granting appellee's, the City of Lubbock, Plea to the Jurisdiction and dismissing his claims with prejudice. We reverse the judgment and remand the case to the trial court.

Background

According to Ackers's live pleadings, (1) on April 23, 2005, Ackers learned that a youth basketball game was being played in the gymnasium at his church. At that time, Ackers was enrolled in a photography class at Texas Tech University and had a pending assignment to photograph an entertainment event. To complete the assignment, Ackers attended the game and took pictures of the participants and attendees. Two of the game's attendees confronted Ackers about his photographing the children. Ackers explained why he was taking the pictures, but the attendees called the Lubbock Police Department to report Ackers's activities anyway.

In response to this call, Lubbock Police Department (LPD) Officer Scott O'Neil was dispatched to investigate a suspicious person taking photographs of everyone's children at a basketball game. Following his arrival at the game, O'Neil seized Ackers's film. O'Neil completed an incident report and the incident was referred to the Juvenile Crimes, Investigative Division.

On May 11, 2005, Ackers went to the police station and met with Assistant Chief of the LPD, Thomas Esparza. Esparza informed Ackers that the investigation would likely be closed, but that the information gathered would remain in the police data system. Lieutenant Jeremy Brewer of the Juvenile Crimes, Investigative Division, was called into Ackers's meeting with Esparza. Brewer told Ackers that he had to have permission before he could take pictures of the children. Brewer's statement was made as an affirmative statement of LPD policy.

On May 17, 2005, Detective Rosanna Langston called Ackers and notified him that the parents are finally satisfied, that he should have obtained permission before taking the photos, and that his name will remain on file as an involved party in this incident and would "show up" if Ackers was stopped for a traffic violation in the future. Ackers was never charged with a crime as a result of his photographing the basketball game.

In response to the events described above, Ackers filed suit against the City of Lubbock requesting 23 declarations, including a declaration that LPD's photography policy is unconstitutional; equitable relief, including a permanent injunction; and costs and expenses, including attorney's fees.

The City filed a Plea to the Jurisdiction asserting that it was immune from this suit based on its governmental immunity. The trial court held a hearing on the City's plea where it heard the arguments of both parties on the jurisdictional issue. Following the hearing, the trial court signed a judgment sustaining the City's plea and dismissing Ackers's claims. Ackers requested findings of fact and conclusions of law and the trial court made findings and conclusions.

By four issues, Ackers appeals. By his first issue, Ackers contends that the trial court erred in sustaining the City's plea to the jurisdiction. By his second issue, Ackers contends that any evidence considered by the trial court was not disclosed to Ackers. By his third issue, Ackers contends that the trial court's findings of fact and conclusions of law are immaterial to the jurisdictional issue. Finally, by his fourth issue, Ackers contends that there is no evidence to support the trial court's judgment. We will address only Ackers's first and third issues, as they are the only issues necessary to final disposition of this appeal. See Tex. R. App. P. 47.1.

Plea to the Jurisdiction

By his first issue, Ackers contends that the trial court erred in sustaining the City's Plea to the Jurisdiction as to his claims for declaratory relief, for injunctive relief, and of a taking under article 1, section 17, of the Texas Constitution.

Subject-matter jurisdiction is essential to the authority of a court to decide a case. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). A challenge to whether a court has subject matter jurisdiction may be raised by a plea to the jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554. Whether a court has subject matter jurisdiction over a case is a legal question and, therefore, we review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist., 34 S.W.3d at 554. The purpose of a dilatory plea is not to force the plaintiff to preview their case on the merits, but to establish a reason why the merits of the case should not be reached. Id. As such, we review a ruling on a plea to the jurisdiction by first examining the claims in the plaintiff's pleadings, taking the facts pled therein as true, to determine whether those facts support the trial court's jurisdiction. Nueces County, 97 S.W.3d at 213. However, we may also consider evidence submitted that is relevant to the jurisdictional issue and we must consider this evidence when it is necessary to resolve the issue of jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 555.

When looking at the plaintiff's pleadings, we must construe the pleadings in the plaintiff's favor and look to the pleader's intent. Nueces County, 97 S.W.3d at 213. The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Id. If a plaintiff pleads facts that affirmatively demonstrate the absence of jurisdiction and the defect is incurable, then the case is properly dismissed. Id. However, if the plaintiff's pleadings do not demonstrate the trial court's jurisdiction, but are not affirmatively incurable, the proper remedy is to allow the plaintiff an opportunity to amend the pleadings before dismissal. Id. See also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989).

In the present case, the City, by its plea to the jurisdiction, alleged that Ackers's claims were barred by the doctrine of governmental immunity. Governmental immunity protects governmental entities from lawsuits for damages absent legislative consent. Nueces County, 97 S.W.3d at 216-17.

There are, however, certain exceptions to governmental immunity. Governmental immunity may be waived by express legislative permission, such as a resolution granting permission for a person to file suit, or by a statutory waiver. Id. at 217. Certain provisions of the Texas Constitution are self-enacting and provide the right to bring suit against a governmental entity for violations of the provision without the need for legislative consent. Id. Actions that seek to settle uncertainty and insecurity with respect to rights, status, or other legal relations or that seek a declaration that officials acted without legal authority or acted in accordance with an unconstitutional law do not require consent, provided that these suits do not seek money damages. Id. at 217-18. A plaintiff filing suit against a governmental entity must assert claims for which immunity has been waived and facts that fall within the scope of that waiver. See Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Nueces County, 97 S.W.3d at 217.

In the present case, Ackers asserted claims for declaratory relief, injunctive relief, and equitable relief to compensate him for the taking of his film. As no evidence was offered that would be necessary to the jurisdictional issue, we will confine our review to Ackers's pleadings, construing those pleadings in Ackers's favor and looking to his intent. Nueces County, 97 S.W.3d at 213. Because we conclude that the trial court had subject matter jurisdiction over at least one claim asserted by Ackers, we will limit our review to this claim. See Tex. R. App. P. 47.1.

Ackers's Claim for Declaratory Relief

Ackers requested 23 declarations from the trial court. The primary declaration sought was that any policy or procedure of the City that was used to justify any unlawful action taken against Ackers be found to be unconstitutional and declared void as a matter of law. Many of Ackers's requests for declarations seek declarations that the City committed acts that would make it liable under a number of different causes of action. However, Ackers does not specifically request monetary relief for any of these causes of action.

As previously mentioned, no consent or waiver of governmental immunity is required when a suit seeks only a declaration or enforcement of rights. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

A suit under the Uniform Declaratory Judgment Act or a suit alleging ultra vires acts falls within this exception. Nueces County, 97 S.W.3d at 217-18. The reason that these suits do not require consent or waiver of immunity is because they do not seek to subject the governmental entity to liability. Tex. Natural Res. Conservation Comm'n, 74 S.W.3d at 855. However, when a party brings a suit ostensibly to determine or protect rights but seeks monetary damages, governmental immunity bars the suit. Id. at 856; Nueces County, 97 S.W.3d at 218.

In the present case, Ackers pled that the City, through its police department, has a policy requiring that parental permission be obtained before photographs of minors may be taken. (2)

As the City presented no evidence to controvert this allegation, we must accept the existence of such a policy as true. See Bland Indep. Sch. Dist., 34 S.W.3d at 555; Nueces County, 97 S.W.3d at 213. The Uniform Declaratory Judgment Act provides, in part, that,

A person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon Supp. 2007).

The City contends that, because Ackers's claim challenges the validity of a policy rather than of an instrument, statute, ordinance, contract, or franchise, the Uniform Declaratory Judgment Act does not remove governmental immunity for Ackers's primary claim for declaratory relief and, therefore, it is barred by governmental immunity.

While Ackers's challenge of the constitutionality of the City's policy is not specifically identified in section 37.004(a), we conclude that the failure of the section to specifically list a city's policy as being capable of challenge by declaratory action does not mean that such an action is barred by governmental immunity. First, section 37.003(c) provides that the enumerations in Section 37.004 "do not limit or restrict the exercise of the general powers conferred by this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty." Tex. Civ. Prac. & Rem. Code Ann. § 37.003(c) (Vernon 1997). We conclude that the primary declaration sought by Ackers in the present case will remove uncertainty regarding rights and will resolve the controversy regarding whether the City's policy is valid. Further, because Ackers is not requesting monetary damages, but rather is seeking a declaration that the City's policy is unconstitutional, he does not need an express statutory waiver of governmental immunity to seek declaratory relief. See Tex. Natural Res. Conservation Comm'n, 74 S.W.3d at 855. As a result, we conclude that Ackers's request for a declaration that any policy or procedure of the City that was used to justify any unlawful action taken against Ackers be found to be unconstitutional and declared void as a matter of law falls within the scope of the Uniform Declaratory Judgment Act. However, because this request for declaratory relief does not seek to impose liability on the City, an express statutory waiver of governmental immunity is not required for the trial court's exercise of subject matter jurisdiction.

The City argues that Ackers's Discovery Control Plan allegation that the suit involves a defendant who is likely to be liable in an amount in excess of $50,000 establishes that his claims are actually claims for monetary damages and are, therefore, barred by the doctrine of governmental immunity.

However, in his live pleading, Ackers makes a claim that would entitle him to monetary damages. The Texas Constitution permits a party to seek equitable relief in the form of adequate compensation for a governmental taking of their property. See Tex. Const. art. I, sec. 17; City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). Because Ackers's live pleading includes a taking claim, for which monetary damages may be awarded, we do not construe his primary request for declaratory judgment to be a veiled claim for monetary damages.

However, even were we to construe Ackers's primary request for declaratory relief to request monetary damages, the trial court should not have dismissed his case without first giving Ackers an opportunity to amend his pleadings. See Fryman v. Wilbarger Gen. Hosp., 207 S.W.3d 440, 442 (Tex.App.-Amarillo 2006, no pet. h.). The record does not reflect that Ackers was afforded an opportunity to amend his pleadings before the trial court dismissed his case with prejudice. Thus, even if the construction of Ackers's pleading that is advanced by the City were accepted, Ackers could amend his pleading to remove the assertion that the defendant will likely be liable in excess of $50,000 from his identification of the Discovery Control Plan.

Findings of Fact and Conclusions of Law

By his third issue, Ackers contends that the trial court's findings of fact and conclusions of law relate solely to the merits of the suit and, therefore, are immaterial to a determination of whether the trial court has subject matter jurisdiction over Ackers's suit. The trial court made factual findings that the LPD officers involved in this matter "were acting within the scope of their official duties as city police officers during the investigation" and that the actions of the officers were "proper and lawful as a response to keep the peace." The trial court made conclusions of law that the City "is immune from liability" in this case, the City is "immune from liability for the actions of its peace officers" in this case, and Ackers "demonstrated no waiver" of the City's immunity.

Based on the scope of our review of a ruling on a plea to the jurisdiction, we conclude that the trial court's findings of fact are not supported by evidence or Ackers's pleading and relate to the merits of the case rather than to the trial court's authority to hear the case. The scope of our review of a ruling on a plea to the jurisdiction is limited to the claims in the plaintiff's pleadings, taking the facts pled therein as true, to determine whether those facts support the trial court's jurisdiction. Nueces County, 97 S.W.3d at 213. Evidence submitted that is necessary to resolve the issue of jurisdiction must also be considered. Bland Indep. Sch. Dist., 34 S.W.3d at 555. In the present case, no evidence necessary to resolution of the jurisdictional issue was submitted.

Thus, our review of the jurisdictional issue is limited to the allegations made in Ackers's live pleading. Nowhere does Ackers allege facts that would support the trial court's factual findings that the LPD officers were acting within the scope of their official duties during the investigation of the present matter. Further, Ackers makes no allegation that the reason that the officers became involved in this matter was because they received a "request to keep the peace." Consequently, we see no support in the record before us for either of the trial court's findings of fact. Further, we note that the trial court's findings go to the merits of Ackers's claims and are, therefore, immaterial to a ruling on a plea to the jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

As to the trial court's conclusions of law, each is subject to de novo review by this court. Mayhew, 964 S.W.2d at 928. As addressed in regard to Ackers's first issue, Ackers may bring certain declaratory judgment actions against a governmental entity without express legislative consent or statutory waiver of immunity. Nueces County, 97 S.W.3d at 217-18. Because Ackers pled a claim for declaratory judgment that we construe as not requesting monetary damages, the City is not immune from the suit and the trial court's dismissal was in error. (3)

Conclusion

For the foregoing reasons, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Mackey K. Hancock
Justice

1. In review of a trial court's ruling on a plea to the jurisdiction, we must take all factual allegations pled as true, unless jurisdictionally relevant evidence was offered that negates jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Nueces County v. Ferguson, 97 S.W.3d 205, 213 (Tex.App.-Corpus Christi 2002, no pet.). All facts recited in this opinion are from Ackers's live pleading unless otherwise noted.
2. We note that Texas Penal Code section 21.15 makes it an offense to photograph another without the person's consent and with intent to arouse or gratify the sexual desire of any person. See Tex. Pen. Code Ann. § 21.15(b) (Vernon Supp. 2007). The City's policy, as alleged by Ackers, removes the mens rea element of this offense. Thus, Ackers's pleading is not challenging the validity of section 21.15 nor is the City's policy authorized by this section.
3. We note that the trial court's conclusions of law specifically reference the City's immunity from liability. For a declaratory judgment action to avoid the bar of governmental immunity, it may not seek monetary damages. Tex. Natural Res. Conservation Comm'n, 74 S.W.3d at 855; Nueces County, 97 S.W.3d at 218. As a result, our analysis of Ackers's primary declaratory judgment claim establishes only that the City is not immune from suit and does not negate the court's conclusion that the City is immune from liability. However, Ackers's claim for adequate compensation for a governmental taking does implicate the court's conclusions.

Terms: city ordinance, student rights

Ad Valorem Tax Protests: May property owner challenge land portion of appraisal without disputing total appraisal valuation of land with improvements?

Austin Court of Appeals says NO, and affirms trial court's dismissal of suit on appraisal' district's special exceptions when tax payer refused to amend.

Holding: A taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26.

Rox Covert, Duke Covert and Danay Covert v. Williamson Central Appraisal District, No. (Tex. App.- Austin [3rd Dist.] Nov. 30, 2007) (Opinion by Justice Diane Henson)(tax appraisal, property tax protest, judicial review suit) (Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 277th District Court of Williamson County

O P I N I O N

In this appeal, we decide whether a taxpayer is entitled under section 42.26 of the tax code to challenge only the land component of an ad valorem property tax appraisal of improved land, without claiming that the total appraised value of the property is unequal. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007). (1)

Appellants Rox Covert, Duke Covert and Danay Covert sued Williamson Central Appraisal District ("WCAD") (2) in district court, challenging WCAD's appraisal of five separate tracts of land, three of which are improved with car dealerships, on the grounds that they were not appraised equally and uniformly. See Tex. Const. art. VIII, § 20; Tex. Tax Code Ann. § 42.26(d) (West 2001).

WCAD filed a special exception, contending that the Coverts' pleadings failed to state a cause of action with respect to the three improved properties because the Coverts had alleged that only the land components, and not the entire properties, had been appraised unequally. The trial court granted WCAD's special exception and ordered the Coverts to replead. The Coverts refused, and their case was dismissed.

The sole issue on appeal is whether the trial court erred in granting WCAD's special exception and in dismissing the claims after ruling that the Coverts had omitted an element of their cause of action, namely that their property was appraised unequally under section 42.26 of the tax code. Holding that the trial court did not err because the statute requires a taxpayer to challenge the appraised valuation of the entire improved property and not merely its component values, we affirm.

BACKGROUND

The properties involved in this litigation are five tracts ranging from approximately 5 to 87 acres, three of which are improved with Covert car dealerships, located on Highway 79 in Williamson County. (3) Each property was listed on WCAD's appraisal roll in a separate account. For each of the improved properties, WCAD separately listed values for the land and for the improvements in its records, as is required by section 25.02 of the tax code. See Tex. Tax Code Ann. § 25.02(a) (West 2001). Deposition testimony from WCAD appraisers explained that all three improved properties had extensive "site improvements," including parking lots and landscaping, that were constructed in order to prepare the properties for use as car dealerships. WCAD offered further testimony that it includes site-improvement values in its computation of the land component of an appraisal.

This case began when the Coverts filed suit in district court challenging WCAD's valuations of the five tracts for the 2001 tax year. The next year, while the 2001 case was pending, the Coverts filed an amended petition adding a challenge to the valuations for the 2002 tax year. In a different case later consolidated with the original, the Coverts appealed for tax years 2003 and 2004. Therefore, the case before us involves four tax years.

Following consolidation, the Coverts' second amended petition modified their challenge to appeal the valuation of "the land portion only" of each of the properties. They argued that, when compared to other vacant, unimproved parcels of land along Highway 79, the land underlying their car dealerships had been appraised unequally. WCAD responded by filing a special exception, alleging that the tax code does not provide a remedy for a taxpayer who claims unequal appraisal only as to the land portion of an improved property and that, because the Coverts had abandoned their claim that the entire properties were unequally appraised, their pleadings failed to state a cause of action with respect to the three improved properties. The trial court granted WCAD's special exception and ordered the Coverts to replead their cause of action that the subject property--"the entire property"--is appraised unequally under section 42.26 of the tax code. Upon the Coverts' refusal to replead, the trial court dismissed the case. (4)

DISCUSSION

Standard of review

The Coverts argue on appeal that the trial court erred in dismissing their case upon granting WCAD's special exception. When a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review that issue of law de novo. Butler Weldments Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex. App.--Austin 1999, no pet.). In so doing, we must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the respondent's pleadings. Id. If a pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Id.

In this case, both the trial court's ruling on the special exception and its dismissal of the Coverts' claim were premised on its interpretation that section 42.26 requires a taxpayer to challenge the entire appraisal of improved property. Addressing whether this was the intent of the legislature is a matter of statutory construction, which we review de novo. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

Plain meaning of section 42.26

The issue of whether section 42.26 authorizes a taxpayer to challenge a single component of the assessor's appraisal of improved land is one of first impression. (5) In our interpretation of this section, we are bound by well-settled rules of statutory construction. First and foremost, we are required to follow the plain meaning of the statute. Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex. App.--Austin 1994, writ denied). If the language of the statute is unambiguous, then we must seek the legislative intent as found in the plain and common meaning of the words and terms used. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). In applying the plain and common meaning of the language, we may not enlarge the meaning of any word in the statute beyond its ordinary meaning; such implication is inappropriate when intent may be gathered from a reasonable interpretation of the statute as it is written. Id. at 241.

Section 42.26 provides:

The district court shall grant relief on the ground that a property is appraised unequally if the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted. Tex. Tax Code Ann. § 42.26(d) (West 2001).

The Coverts argue that nothing in the language of 42.26 requires them to challenge the appraised value of every item that comprises "property" in order to state a claim under that section. Noting that the indefinite article "a" precedes the first mention of the word "property" in section 42.26, but that the definite article "the" comes before the second mention, the Coverts conclude that the clear intent of the legislature was to narrow the median test "to whichever matter or thing was selected for challenge by the property owner." In other words, if a property owner elects to challenge as "a" property only the land portion of improved property, then the median test must be applied exclusively to the land as "the" property in issue.

We do not agree, however, that the choice of article antecedent to the word "property" in section 42.26 is clear evidence of the legislature's intent in this regard. Rather, we conclude from the plain language of the statute that whatever property is appraised must be valued equally in relation to other comparable properties. In the case of an improved property, such as one of the Covert car dealerships, a single appraised value is given to the entire property, which represents the total value of the land, the buildings, and the various site improvements, including all parking lots, curbing, and landscaping. So long as that valuation is an equal and uniform assessment, we cannot support overturning it because the land component is valued too high or the improvement component too low. While evidence that only the land or only the improvements were assessed unequally is certainly relevant to the taxpayer's challenge, he cannot prevail unless he can show that the appraised value of the improved property is not equal or uniform.

In deposition testimony read at the hearing on the special exception, the Coverts' independent appraiser admitted that even if the land component of a property is appraised unequally, the entire property is "not necessarily" appraised unequally. We agree with the trial court that completely fair appraisals should not be overturned simply "because one component or the other is subject to attack without some showing that the overall appraisal is incorrect." We emphasize, however, that a taxpayer need not bring evidence concerning every component in a challenge under section 42.26; rather, he may take issue only with the value given to the land or only with the value given to the improvement, so long as he can show that, as a result, his entire improved property was appraised unequally in violation of the statute.

In support of their position, the Coverts point to a provision in the tax code wherein the appraisal district is required to separately list values for land and improvements in its own records as evidence that the legislature contemplated allowing separate challenges to these component values. See id. § 25.02(5), (6) (West 2001). They also argue that the predecessor statute to section 25.02, which did not require the separate listing of the land and improvement components on the appraisal roll, should be viewed as evidence that the legislature intended for each appraised component value to give rise to a separate challenge. Again, however, we note that although the appraisal roll may contain two or more component values in its record for a single property, there is only one assessed value to which the taxpayer may bring a challenge. The separate values for land and improvements are not certified to the taxing units that impose the tax, nor are they included in the tax bill to the property owner. See id. §§ 26.01(c), 31.01 (West 2001). Although the land and improvement values may present contestable issues, we hold that the total improved property value--which includes both the land and improvement components--is the only appraised value that the taxpayer may appeal. (6)

In support of our reading of the plain language of section 42.26, we note that under the tax code, "appraised value means the value determined as provided by Chapter 23 of this code." Id. § 1.04(9) (West 2001). Chapter 23 dictates that all taxable property is appraised at its market value. Id. § 23.01(a), (b). Moreover, each property shall be appraised based upon the individual characteristics that affect the property's market value. Id. § 23.01(b). Land that is improved with a car dealership, as well as other site improvements, has different individual characteristics affecting its market value than undeveloped, "raw" land. Because section 42.26 uses the "appraised value" of the subject property as the basis for comparison and, by statute, appraised value is market value, we do not agree with the Coverts that the legislature intended to allow taxpayers to challenge the component values of their property in isolation from a consideration of the total assessed value of the property.

In holding that "appraised value" encompasses both the land and the improvement value for the purpose of challenges brought under section 42.26, we find persuasive the reasoning of the Dallas court in its interpretation of "appraised value" under section 23.23 of the tax code. See Bader v. Dallas County Appraisal Dist., 139 S.W.3d 778 (Tex. App.--Dallas 2004, pet. denied). Bader concerned the application of that section's ten percent cap on appraised valuation, which provides that the appraised value of a residence homestead may not increase more than ten percent annually. See Tex. Tax Code Ann. § 23.23 (West Supp. 2007). Bader had argued that the cap ought to be applied separately to the land and the improvement components of his property, claiming that section 23.23 must be read in conjunction with the definitions of "property" in section 1.04 and in light of the separate listing requirement of section 25.19(f). Bader, 139 S.W.3d at 781.

Rejecting this interpretation, the Dallas court held that the legislature did not intend the cap to be applied separately to the land and the improvements, despite the fact that the legislature required the separate listing of land and improvement values in the notice of appraised value under section 25.19(f). Id. The court found no language linking section 25.19(f) to the cap provisions in section 23.23 and concluded that the separate listing requirement in section 25.19(f) exists only so that the property owner can identify the value set for the component parts of his real property to determine whether he should contest an appraised value set by the appraisal district. Id. at 781-82. "That purpose, to give 'notice' of the appraised value, does not translate into a requirement that an appraisal district apply the ten percent cap separately to the land and then to the improvements." Id.

Likewise, there is no evidence in this case that the legislature intended the separate listing requirement contained in section 25.02 to have any effect on challenges to appraised value brought under section 42.26. There is no language linking section 25.02 to section 42.26, and section 25.02 itself appears to be only an administrative provision addressing the "form and content" of records maintained by the appraisal district. See Tex. Tax Code Ann. § 25.02 (West 2001). The Coverts cite to no authority suggesting that section 25.02 provides a basis for bringing separate challenges to land and improvement values as separate "appraised values" under section 42.26 or that section 25.02 is anything but a clerical or administrative requirement.

The Coverts further argue that this construction of section 42.26 will lead to absurd results with regard to the appraisal of mineral interests and timber. They allege that someone who owns such an interest would never be able to challenge the equality and uniformity of the tax assessment of the minerals or timber without also having to challenge the land and any improvements on the land. We disagree. The tax code provides that where timber or mineral interests are held as separate estates by someone other than the landowner, they are listed separately on the tax rolls in their respective owner's name. See id. §§ 25.10, .12. It is clear that in these circumstances, the legislature contemplated that separate challenges could originate from the owner of a mineral or timber interest, unrelated to an action concerning the valuation of the overlying land. Had the legislature intended the same result in the case of improved property as it did in cases involving separately-owned mineral or timber interests, it would have explicitly provided that remedy in the code.

We therefore hold that a taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26.

CONCLUSION

Because the trial court did not err in granting the dismissal, we affirm.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: November 30, 2007

1. Both the original lawsuit and the later consolidated lawsuits were filed before the amendment to section 42.26, whereby the substantive provisions of subsection (d) were incorporated into subsection (a)(3). For the sake of clarity, we will hereafter refer to the former section 42.26(d) in force at the time the action was commenced and not the current section 42.26(a)(3). See Act of June 20, 2003, 78th Leg., R.S., ch. 1041, 2003 Tex. Gen. Laws 2998-99 (amended 2003) (current version at Tex. Tax Code Ann. § 42.26(a)(3) (West Supp. 2007)).
2. We note that the name of the appraisal district is Williamson Central Appraisal District, and not Williamson County Appraisal District as indicated in the parties' briefs.
3. Besides the three tracts that are improved with car dealerships, there is also a "wraparound" tract that connects each of the three dealership properties to a back road and provides drainage for the other tracts. The largest tract is unimproved and is currently designated for agricultural use.
4. At the hearing, the parties discussed but do not appear to have resolved the issue of whether granting WCAD's special exception would have any effect on the Coverts' challenge as to the two unimproved properties. When asked by the trial court if they would pursue their claim on those two tracts, the Coverts admitted, "the money in this is in [the improved parcels]" and that without a favorable ruling allowing them to plead and prove the theory that the land component could be challenged separately, they "would be dead essentially" on their entire case. The order granting dismissal referred to all five of the properties in the consolidated case; however, because the Coverts failed to raise an appellate point concerning either the unimproved agricultural tract or the wraparound tract, they have waived error with respect to the dismissal of their appeal of those two properties. See Tex. R. App. P. 38.1(h).
5. The same claim appears to have been raised in only one other Texas case, Reliance Insurance Co. v. Denton Central Appraisal District, 999 S.W.2d 626 (Tex. App.--Fort Worth 1999, no pet.). The court did not reach the issue, however, having decided that case on other grounds. Id. at 627.
6. As mentioned above, our holding in this case does not require a taxpayer to allege that every component value is incorrect in order to state a claim under section 42.26. If the Coverts had pled that their land was valued unequally and that this resulted in an unequal assessment for the entire appraised value given to their respective car dealerships, they would have satisfied the statutory requirements. They were not required to plead and prove that both the land and the improvements were valued unequally.

Acrimony among justices surfaces in appellate opinion in Texas A&M bonfire case

Unusual opinion on motion for rehearing in sovereign immunity case sheds light on internal wrangling and lack of collegiality on three-member court of appeals in Waco.

Texas A&M University v. Bading, No. (Tex.App.- Waco, Nov. 15, 2007)(per curiam opinion on rehearing) (university's plea to the jurisdiction sustained on appeal)
Full style: Texas A&M University v. Ryan Bading, Javier Garza, Aaron Horn, Joe Jackson, Andrew McDow, Michael Rusek, Ty Sorell, Scott-Macon, LTD., Texas Aggie Bonfire Committee, Trevor Jon Saari, H.B. Zachry Company, Zachry Construction Corporation, Harry Eugene Couch, Jr.,--Appeal from 361st District Court of Brazos County
Disposition: MOTION OR WRIT GRANTED:

Appeal from 361st District Court of Brazos County (Hon. Steven Lee Smith)
Opinion On REHEARING

The Zachry defendants have filed a motion for rehearing that presents ten issues:

1. Whether we addressed every issue raised and necessary to final disposition of the appeal. Tex. R. App. P. 47.1.

2. Whether we considered only the Attorney General’s briefs and oral argument.

3. Whether we should have addressed cross-issues properly briefed by the Zachry defendants that are necessary to final a disposition of the appeal. Id.

4. Whether we should have addressed a specific cross-issue, i.e., does submission of the University’s percentage of responsibility merely as a responsible third party require a waiver of sovereign immunity. Id.

5. Should we have granted the University’s request for a severance? Id.

6. Whether we misapprehended the record by reversing a single order when there were several.

7. Whether we incorrectly referred to the “judgment of the court below” when there was none; they were “orders.”

8. Did we correctly designate our opinion under Rule 47.2? Id. 47.2.

9. Did we violate Rule 47.2(a) by including Chief Justice Gray as a justice participating in the decision? Id. 47.2(a).

10. Did we violate appellate due process due to internal disagreements among the justices of this court?

The Texas Aggie Bonfire Committee and Scott-Macon, Ltd. have filed a joint motion for rehearing, basically adopting issues one through nine set out above. Their tenth issue addresses internal operating procedures, but does not refer to “appellate due process.” They assert two additional issues:
11. Whether our opinion conflicts with other Texas and out-of-state decisions regarding their contribution claims against the University.

12. Whether the Texas Tort Claims Act provides a waiver of sovereign immunity for their contractual indemnity claim.

We requested a response to both motions. The University’s states: “No legal foundation supports Appellees’ contribution, contract, and ‘responsible third party’ claims against Texas A&M University. As a result, the Court was right—this case is ultimately quite simple: because there is no clear and unambiguous legislative or constitutional waiver of the University’s sovereign immunity for Appellees’ third-party claims, the Court properly dismissed their claims for lack of subject-matter jurisdiction. And since that unremarkable conclusion disposed of all of Appellees’ claims, nothing else needed to be said in the Court’s opinion or judgment.” (Emphasis in original.)

We will refer to the movants as “Appellees” unless we are addressing an issue not common to them. Because the first eight issues presented in the motions are virtually identical, we will address them together. Then we will address the two additional issues presented by the Committee and Scott-Macon. Finally, we will address the common ninth and tenth issues concerning the internal procedures that led to our opinion.

FAILURE TO ADDRESS ALL ISSUES


Appellees’ issues one, three, and four assert that we did not address all of the issues necessary to a disposition of the appeal. Because we agree with the University’s position as quoted above, we overrule issues one, three, and four.


CONSIDERATION OF ONLY APPELLANT’S BRIEFS AND ARGUMENT


Appellees apparently believe that we considered only the Attorney General’s briefs and

argument. If so, they misread our opinion. A claim that sovereign immunity has been waived requires a showing of a clear and unambiguous expression of waiver. The Attorney General, on behalf of the University, pointed out that Appellees had failed to identify such a waiver, and we stated our agreement. We fully considered the extensive briefs and arguments of all parties in reaching our decision.[1] We overrule issue two.


SEVERANCE


Issue five asserts that we failed to address a severance question. The University responds that it did not raise severance as an issue on appeal. We overrule issue five.
ONE “ORDER” OR MORE


Appellees’ issues six and seven question our reference to the “judgment” of the court below and whether we intended to reverse various “orders” of the trial court. This point is well taken, and we will modify our judgment accordingly. Issues six and seven are sustained.


OPINION OR MEMORANDUM OPINION


We designated our opinion as an “Opinion” under Appellate Rule 47.2 because the parties presented the appeal as one of first impression. Although Appellees question whether we should have presented more than “basic reasons” for our decision, we believe that the opinion adequately addresses the issue of the University’s claim of sovereign immunity and, as the University points out, sustaining that claim necessarily disposes of all other claims. We thus reject their assertion that we should have expounded further on other issues. We overrule issue eight.

CONTRIBUTION CLAIMS


The Committee and Scott-Macon believe that the Tort Claims Act waives sovereign immunity as to their claims against the University for contribution. The University says that the Tort Claims Act “makes no mention of contribution claims” nor does the statute “even imply consent to contribution claims—much less express consent to such claims in a clear and unambiguous manner.” (Emphasis in original.) We again hold that because there is no clear and unambiguous waiver of sovereign immunity as to such claims, they must be dismissed. We overrule issue eleven.


CONTRACTUAL INDEMNITY CLAIMS


Scott-Macon says that the University’s sovereign immunity has been waived by the Tort Claims Act for its contractual indemnity claims. The University again points to the absence of a reference to such claims in the Act and to the absence of authority for this “untenable argument.” We again hold that because there is no clear and unambiguous waiver of sovereign immunity as to such claims, they must be dismissed. We overrule issue twelve.


INTERNAL PROCEDURES


Appellees assert in issue nine that we violated the appellate rules by noting Chief Justice Gray’s name as a participating justice. The University does not respond directly to this issue.
Appellees are incorrect. As we will demonstrate, Chief Justice Gray approved the opinion under the existing rules of the court and was thus shown as a participating justice.

Ordinarily, we do not publish our internal operating rules or internal discussions, votes, positions taken, or writings.[2] However, because Chief Justice Gray has questioned the legality of our internal procedures and Appellees have, by including these issues in their motions for rehearing, raised the potential for review of our procedures by the Texas Supreme Court, we are compelled to discuss and defend our internal rules and how they were applied in this case.

The Tenth Court of Appeals is a three-justice court. Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. §§ 22.201(k), 22.216(j) (Vernon 2004 & Supp. 2006). Unless a justice is recused or disqualified, we sit as a regular panel of three justices. A majority of a panel constitutes a quorum and the concurrence of a majority of the panel is necessary for a decision. Tex. Const. art. V, § 6 (“The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.”); Tex. Gov’t Code Ann. § 22.222(a), (c) (Vernon 2004). We have adopted Local Rules to supplement the Rules of Appellate Procedure. Tex. R. App. P. 1.2(a); 10th Tex. App. (Waco) Loc. R. 1-19. We have also adopted Internal Administrative Rules (IAR) to govern our administrative duties. Tex. Gov’t Code Ann. § 22.223 (Vernon 2004).[3]

When an appeal is filed, it is assigned by the clerk to one of the three justices on a strict-rotation basis.[4] IAR para. 8. The responsibility for the initial review of motions and other pre-submission matters rests with the assigned justice, who also prepares an initial draft of an opinion on the merits. Id.


We have adopted, and amended, "Procedures for Internal Deadlines for Approval of Opinions and Orders" (Procedures), which set deadlines for the approval or non-approval of the various types of opinions and orders that the court issues. In an appeal such as this, the Procedures specify that the opinion will be issued on the first Wednesday after 42 days (six weeks) after the date it is distributed by the author to the remaining justices. If a reviewing justice does not indicate an intent to concur or dissent by four weeks prior to the issue date, or having indicated such does not distribute a proposed concurring or dissenting opinion by one week prior to the issue date, that justice is deemed to have approved the draft opinion.


This case was filed on March 9, 2005. From that date until June 11, 2007, over two years, the case was assigned to Chief Justice Gray. During that period, several letters covering a variety of subjects were circulated by Chief Justice Gray, approved by the other justices, and transmitted to the parties by the clerk. Chief Justice Gray recommended that the case be advanced and submitted without oral argument, but a majority of the panel voted to hear oral argument. After submission, Chief Justice Gray authored and distributed a draft opinion.[5] It did not receive a second vote. Justice Vance then drafted a competing opinion, which Justice Reyna joined and which was delivered to Chief Justice Gray on June 11, 2007. At that time, the designated author was changed.


On June 22, we received an email from Chief Justice Gray stating: “TAMU v. Bading, 10-05-00139-CV; I thought I was about ready to put my opinion in circulation but I have decided that it is not ready yet.” On July 11, Justice Vance inquired of Chief Justice Gray:


Can you tell me when the dissent will be ready, or should I formally circulate the opinion in order to establish a deadline? It has been a month today since the opinion was circulated and almost two weeks since you: "thought I was about ready to put my opinion in circulation but I have decided that it is not ready yet."

After additional exchanges, Justice Vance proposed to “issue the opinion on July 25, which is the first Wednesday after six weeks after the opinion was circulated.” After still more exchanges, Chief Justice Gray wrote on July 20: “My formal response to your proposed draft is that I am not yet prepared to vote.” In response to Justice Vance’s offer of an additional week, so that the opinion would issue on August 1, Chief Justice Gray sent an email saying:


I appreciate the implied offer but I have could not say any more definitively that I could be ready by then than I could by next Wednesday. The more time I have, the higher probability that I could finish. For example, I have little doubt that I could be ready by the end of August, but due to the uncertainties of life, including what could happen between now and then that is not within my control, could make no promises.
twg

On July 23, Chief Justice Gray wrote: “there is no reason not to extend the date to the final issuance date in August upon my implied request.” Justice Vance replied: “I’ll meet you 60% of the way to August 29 and schedule it to issue on August 15. . . . An August 15 issue date also allows considerably more time than the deadlines provide.” Chief Justice Gray responded:
You do what ever you want to do, but my position always has been and remains that I am unable [sic] commit to any specific date to be ready to vote. Life just does not offer that level of certainty. I may or may not be ready by that date.
twg

Accordingly, on July 23, a majority of the justices on the panel, as authorized by the Procedures,[6] modified the deadlines as follows:


No. 10-05-00139-CV


Texas A&M University v. Bading

This cause was submitted on June 5, 2007. A proposed opinion distributed by Chief Justice Gray, without a Distribution Date or a Proposed Issue Date, was not joined by either of the other Justices.

An alternate draft opinion by Justice Vance was approved by Justice Reyna on June 11 and the designation of authorship for the case changed. The alternate draft opinion was delivered to Chief Justice Gray on June 11, 2007.

Paragraph 3.01 of the Procedures for Internal Deadlines for Approval of Opinions and Orders allows six weeks from distribution of an opinion until the Proposed Issue Date. More than six weeks have elapsed since two Justices approved the draft majority opinion in this case.

Applying Paragraph 8.01 of the Procedures, the Issue Date for the majority opinion in this case is set for Wednesday, August 15, 2007. The Final Response Date for purposes of Paragraph 4.01 of the Procedures is set as August 8, 2007, and failure to act by that date constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007.

This modified procedure is adopted this 25th day of July, 2007.

________________________________
Tom Gray


_s/ Bill Vance ____________________
Bill Vance


_s/ Felipe Reyna __________________
Felipe Reyna

(Emphasis added.) Chief Justice Gray wrote a handwritten “dissent” to the action of the majority in adopting the modified procedure.


Having received no response by August 8, Justice Vance wrote Chief Justice Gray on August 10:
Per your request, this is a courtesy notice in advance of the issuance of the opinion in TAMU v. Bading without your response under the deadlines.

This accelerated interlocutory appeal was argued and submitted on June 6, over nine weeks ago. Your proposed opinion did not garner a majority of the votes. An opinion that I drafted was approved by a majority of justices on June 11, over eight weeks ago. To date, no concurring or dissenting opinion has been given to us for our review. You have said, however, "You do what ever you want to do, but my position always has been and remains that I am unable commit to any specific date to be ready to vote. Life just does not offer that level of certainty. I may or may not be ready by [August 15]. twg"

In light of all the pending matters arising out of the same underlying event, the parties are entitled to be promptly informed of the decision we have reached.

Under the modified procedure approved on July 25, the Final Response Date in this case was August 8, so the opinion will issue as a unanimous opinion on August 15. ("failure to act by [the Final Response Date] constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007") [sic]

I trust that the proposed opinion that your [sic] circulated back in June correctly reflected your view of how the legal issues presented in this appeal should be resolved. It should be easy to convert that to a concurring opinion to be issued next week with my opinion.

Chief Justice Gray replied:

Bill,
Your email begins with multiple false premises and continues in that vein throughout. If you "do what you want to do," as I feel certain you, will empowered as you are with the second vote from Felipe, I will again have to follow it up with a special note, as I did last week in TxDot v. York.
twg

The opinion was issued as scheduled on August 15.


Various rules impose deadlines at every step of the appellate process, from the overruling of a motion for new trial by operation of law after 75 days to the automatic denial of a motion for rehearing in the Texas Supreme Court if not decided within six months.[7] See, e.g., Tex. Const. art. V, § 31(d); Tex. R. Civ. P. 329b(c). Furthermore, Appellate Rule 41.1(c) allows for the issuance of an opinion by two justices, after argument, when one cannot participate “for any reason.” Tex. R. App. P. 41.1(c). This case was submitted on oral argument on June 6, 2007.


Under the rules governing the issuance of opinions, Chief Justice Gray approved the draft majority opinion. He alone decided not to affirmatively vote to join the opinion or to dissent from or concur in the judgment in this case in a timely manner. He is not disqualified; he has not recused himself. Thus, he remains a member of the panel assigned to the case. The decision reflected by the “Special Note” is his alone.


We overrule issue nine.


In issue ten, Appellees say that our internal operating procedures have rendered them “innocent victims” in a way that violates their “appellate due process” rights. The University responds by noting that no authority is cited in support of this issue. Nothing is presented for review. We overrule issue ten.

CONCLUSION


We have overruled rehearing issues one through five and eight through twelve. We sustain issues six and seven. We withdraw our judgment dated August 15, 2007, and issue a modified judgment to reverse the “orders” of the trial court denying the University’s pleas to the jurisdiction and render an order granting the University’s pleas and dismissing all of Appellees’ trial-court claims for lack of jurisdiction. In all other respects the Appellees’ motions for rehearing are overruled.

BILL VANCE
Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Additional Special Note by Chief Justice Gray)
Motions for rehearing granted in part; denied in part
Judgment withdrawn; modified judgment issued
Opinion delivered and filed November 14, 2007


[1] We again note that our decision is based on a prior version of Section 33.004 of the Civil Practice and Remedies Code, no longer in effect, which allowed findings of responsibility of “persons” over which the court has jurisdiction. We express no opinion about whether an entity that enjoys sovereign immunity can be designated as a responsible third party under the current version.


[2] In an earlier case in which a party, in a motion for rehearing, claimed that an opinion on the affirmative vote of two justices obviated potential appellate jurisdiction of the Supreme Court of Texas and was erroneous, we attached the then-current version of our "Procedures for Internal Deadlines for Approval of Opinions and Orders." Tesmec USA, Inc. v. Whittington, 192 S.W.3d 178, 183-88 (Tex. App.—Waco 2006, pet. denied) (op. on rehearing). The Procedures have since been amended and have proven to be workable.

[3] Court-adopted rules cannot be inconsistent with the constitution. See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied). "A statute controls over a procedural rule." In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).

[4] The exception is companion cases that are assigned to the same justice.

[5] Demonstrating sufficient time to consider the appeal.


[6] The relevant part of Paragraph 8.01 provides: “Any procedure or deadline specified herein may be changed, modified, or suspended in any case by a majority vote of the Justices on the panel.”

[7] According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.