In re St. David's Healthcare Partnership, L.P. LLP d/b/a St. David's Hospital, No. (Tex.App.- Austin, Oct. 4, 2007)
Disposition: Motion or writ denied (Before Justices Puryear, Pemberton and Waldrop)

No opinion available on court's web site

Mandamus proceeding dismissed - sealed documents returned

In re City of Fort Worth, Texas and Charles Boswell, City Manager, in his official capacity as the City's information officer, No. Opinion by Justice Patterson (Before Justices Patterson, Puryear and Pemberton)

In re City of Fort Worth, Texas and Charles Boswell, City Manager, in his official capacity as the City's information officer--Appeal from 353rd District Court of Travis County

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

M E M O R A N D U M O P I N I O N

Relators have filed a motion to dismiss their petition for writ of mandamus. The relators also request the return of documents filed with their petition. The real parties in interest do not oppose this motion. Accordingly, we grant relators' motion and dismiss the petition for writ of mandamus. See Tex. R. App. P. 42.1(a). The relators shall contact the clerk's office to make arrangements for the return of the reporter's record and the two sealed exhibits filed with the petition for writ of mandamus.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: October 3, 2007

PROBATE BANKRUPTCY STAY
The Estate of Derrich D. Pollock, Deceased; System 5 Trading Fund; Rod Watkins; Steve Watkins; Julee Pollock, as Administrator of the Estate of Derrich D. Pollock, Deceased, and Julee Pollock, Individually v. Ronald Moyer, Dianne Moyer and James L. Johnson, No. Opinion by Chief Justice Law (Before Chief Justice Law, Justices Puryear and Waldrop)

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY,
NO. 86345A, HONORABLE GUY S. HERMAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This Court has received notice that appellant Julee Pollock has filed for bankruptcy protection (United States Bankruptcy Court, W.D. Texas, Austin Division, Chapter 11, No. 07-11688). Thus, the appeal is stayed. See 11 U.S.C. § 362; Tex. R. App. P. 8. Any party may file a motion to reinstate upon the occurrence of an event that would allow the appeal to proceed. See Tex. R. App. P. 8.3. Failure to notify this Court of a lift of the automatic stay or termination of the bankruptcy case may result in dismissal of this appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Bankruptcy
Filed: October 3, 2007

DWOP - In the Interest of L. M. H., No. Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)
Appeal from 169th District Court of Bell County

FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 220,516-C, HONORABLE MICHAEL J. NELSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant filed his notice of appeal on May 8, 2007. The clerk's record was filed on May 16. On August 20, 2007, the Clerk of this Court sent appellant notice that his brief was overdue and informed him that unless he filed a motion for an extension of time by August 31, the appeal would be dismissed for want of prosecution. Appellant has not responded to this or other communications from this Court. We therefore dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Dismissed for Want of Prosecution
Filed: October 3, 2007

MOTION OR WRIT DENIED Sep. 27, 2007: Opinion by Justice Puryear (Before Chief Justice Law, Justices Puryear and Pemberton)

In re James Lee Cinnamon--Appeal from 119th District Court of Concho CountyORIGINAL PROCEEDING FROM CONCHO COUNTY
M E M O R A N D U M O P I N I O N
The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: September 27, 2007

Lawyer prevails in suit alleging malicious prosecution - Austin court of appeals affirms summary judgment

Gregory Daniels v. Laurie Eiserloh, No. (Tex.App.- Austin, Sep. 27, 2007)(Opinion by Justice Puryear)(abuse of process, protective order, summary judgment, additional discovery) (Before Justices Patterson, Puryear and Waldrop)
Appeal from 53rd District Court of Travis County
Disposition: Summary Judgment for Defendant affirmed

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. GN303060, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

In August 2003, appellant Gregory Daniels, representing himself pro se, sued appellee Laurie Eiserloh, an attorney, as well as Betty and Kate Trimble, two of Eiserloh's clients on whose behalf Eiserloh sought and obtained a protective order against Daniels. Daniels asserted claims for malicious prosecution, fraud, constructive fraud, and abuse of process, arguing that Eiserloh and the Trimbles lied and exaggerated facts to obtain the protective order.

The trial court granted summary judgment for the Trimbles in March 2005 and later severed them from the suit. Eiserloh filed a no-evidence motion for summary judgment on April 11, Daniels filed a third amended petition on April 18, and Eiserloh filed a "supplemental" motion for summary judgment on April 21. On May 12, the day of the hearing on Eiserloh's motions, Daniels filed a response and requested additional time for discovery. Eiserloh filed objections to the response and Daniels's evidence that same day, arguing that Daniels's response was untimely and that the evidence to which he pointed did not raise fact issues. The trial court granted Eiserloh's objections and denied Daniels leave to file his documents. The court then granted Eiserloh's motions, ordering that Daniels should take nothing by his suit against her.

Daniels appeals from the order in favor of Eiserloh; his claims against the Trimbles are not before us. Daniels complains that the trial court improperly disregarded his evidence, should have granted him additional time for discovery, and should not have required him to prove Eiserloh's intent with absolute certainty. (1) We affirm the order of summary judgment.

A no-evidence summary judgment is essentially a pretrial directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). A defendant seeking a no-evidence summary judgment need not prove her right to judgment as a matter of law but instead asserts that there is no evidence of one or more essential elements of the plaintiff's claim. Tex. R. Civ. P. 166a(i); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.). We consider the evidence in the light most favorable to the non-movant and disregard contrary evidence and inferences. King Ranch, 118 S.W.3d at 751. A no-evidence motion is properly granted if the non-movant does not produce more than a scintilla of probative evidence raising an issue of material fact with respect to the essential elements attacked by the movant. Tex. R. Civ. P. 166a(i); King Ranch, 118 S.W.3d at 751. More than a scintilla exists if reasonable people could differ in their conclusions about the evidence; evidence amounts to less than a scintilla if it does no more than create a surmise or suspicion of a fact. King Ranch, 118 S.W.3d at 751. The non-movant need not marshal his proof, but must point to evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i) cmt.

In his first issue, Daniels complains that the trial court should have considered exhibits in the court's file that he argues showed more than a scintilla of evidence that Eiserloh "breached her legal obligations and committed constructive fraud." We disagree.

Eiserloh argued that Daniels could not show the following elements of malicious prosecution: malice, lack of probable cause, termination in Daniels's favor, and special damages. As for fraud, Eiserloh contended that there was no evidence of any false representation, that she knew any representations were false or was reckless as to the truth, that she intended to induce Daniels into acting on a misrepresentation, or that Daniels relied on a misrepresentation. Finally, Eiserloh argued that Daniels could not show that she made an illegal, improper, or perverted use of process, either before or after process issued; that she had an ulterior motive in using process; or that Daniels was harmed by any misuse of process. In her supplemental motion, filed after Daniels amended his petition to add constructive fraud as a cause of action, Eiserloh argued there was no evidence to show she had a duty to Daniels or breached any such duty. Daniels's response, filed the day of the hearing, argued that his affidavit seeking more time for discovery showed that "demands on Plaintiff's time and financial resources have hampered his ability to conduct complete discovery." Daniels also referred to exhibits attached to Eiserloh's "traditional" motion for summary judgment filed in November 2004 and asserted that those exhibits raised fact issues as to his claims. Daniels's arguments in response to Eiserloh's no-evidence motion read in their entirety as follows:

1) Constructive Fraud - Plaintiff disputes Laurie Eiserloh's denial that she made false representations knowingly. Based on the facts and evidence as indicated in Plaintiff's Third Amended Petition, a jury could reasonably conclude Laurie Eiserloh unlawfully and knowingly made false statements to improperly obtain an ex-parte hearing for the purpose of obtaining a restraining order. Furthermore, the wording of that order, as interpreted by Judge McCown, effectively placed the Plaintiff under house arrest (due to the proximity of the two residences) without the benefit of proper hearing.

2) Malicious Prosecution - Despite Defendant Laurie Eiserloh unlawfully and knowingly obtained the restraining order through false allegations [sic], on August 3rd, 2001, Defendant filed a show cause order claiming two (2) violations of that restraining order. (Exhibit 3 - Motion to Dismiss for Lack of Subject Matter Jurisdiction of Defendant, Laurie Eiserloh)

3) Abuse of Process - At this time, it is unclear as to the identities of the defendants that were responsible for the use of process in the prior case for the purpose of unlawfully gaining exclusive parking rights to a public street and thereby violating the civil rights of the Plaintiff.

Further discovery should reveal the individuals responsible.

Daniels failed to point to specific evidence raising fact issues on the elements attacked by Eiserloh. (2) Instead, he merely restated his allegations and argument, making conclusory statements such as, "Eiserloh unlawfully and knowingly obtained the restraining order through false allegations," without pointing to any proof that, for example, Eiserloh acted with malice, knowingly or recklessly made misrepresentations, or misused process. Indeed, in his response related to abuse of process, Daniels stated that he did not know the identity of those who allegedly misused process. Further, Daniels's response was filed on the day of the hearing in violation of rule of civil procedure 166a(c), which provides that the non-movant "not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). Daniels asserts on appeal that "although at the start of the hearing, Judge Scott Jenkins stated he would allow Appellant's late filed Summary Judgment Response and Evidence to be considered, he later signed Laurie Eiserloh's order granting her objection to his consideration of said document." However, we have no record of the hearing, and the trial court was not obligated to consider Daniels's late-filed response, filed without seeking leave of court and without explanation for its untimeliness. See id. ("[e]xcept on leave of court," response must be filed at least seven days before hearing). Daniels did not raise fact issues on the essential elements of his claims, and the trial court properly granted summary judgment for Eiserloh. We overrule Daniels's first issue on appeal.

Daniels next complains that the trial court did not consider his motion for additional time to conduct discovery. On the date of the summary-judgment hearing, Daniels filed an affidavit "in support of plaintiff's request for additional discovery time," stating that he was the victim of various illegal acts between March 2001 and March 2002 and that "[l]imited time statutes necessitated the filing of four (4) separate and unrelated District Court cases simultaneously." He asserted that the various responses required in the cases had consumed all his time and financial resources, "thus preventing timely pursuit of discovery in both this and other pending cases." The trial court did not make a written ruling on Daniels's affidavit.

Daniels stated in his original petition that the case would be under a Level 2 discovery plan. See Tex. R. Civ. P. 190.3. Under a Level 2 discovery plan, "[a]ll discovery must be conducted during the discovery period," which runs from the date the petition is filed until thirty days before trial or nine months after the first oral deposition or the due date of the first response to written discovery, whichever is earlier. Tex. R. Civ. P. 190.3(b)(1)(B). Eiserloh presented evidence that she filed a request for disclosure on September 9, 2003. Thus, Daniels's response was due thirty days later, on October 9, and the discovery period ended nine months later, on July 9, 2004.

Eiserloh's motion for a no-evidence summary judgment was filed about nine months later, in April 2005, and Daniels's request for additional time was filed one month later, on the day of the hearing. Daniels did not assert that he had made discovery attempts, nor did he show grounds that would require additional time for discovery, and the trial court was not obligated to give Daniels more time to conduct discovery. We overrule Daniels's second issue on appeal.

In his third issue, Daniels asserts that the trial court improperly required him to "produce absolute evidentiary proof" of Eiserloh's tortious intent, whereas he should only have had to show that "a reasonable person might conclude such facts based on available evidence." However, other than stating this issue in the "issues presented" section of his brief, he presents no argument in support of this issue. See Tex. R. App. P. 38.1(h). Further, Eiserloh asserted a lack of evidence of many of the elements of Daniels's claims, and because Daniels failed to raise a fact issue as to elements other than Eiserloh's malicious intent, summary judgment was proper even if the court imposed an improper burden on Daniels regarding intent. We overrule Daniels's third issue.

Having overruled Daniels's issues on appeal, we affirm the trial court's granting of a no-evidence summary judgment in Eiserloh's favor.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop
Affirmed
Filed: September 27, 2007

1. Daniels is representing himself pro se, and his brief largely explains his version of the facts underlying his lawsuit, providing little in the way of argument or authority supporting his issues. See Tex. R. App. P. 38.1(h). We will attempt to discern and address Daniels's arguments as thoroughly as possible. However, pro se litigants must comply with the same procedural rules as parties represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

2. Daniels did not make any mention of fraud and it appears that he abandoned this cause of action when he filed his third amended petition, which alleged only constructive fraud, malicious prosecution, and abuse of process.

Second bite at the appellate apple denied - issue waived in prior appeal

Maynard Tucker v. The Austin American Statesman, No. (Tex.App.- Austin, Sep. 26, 2007)(Opinion by Justice Henson) (DWOP, multiple appeals, waiver of error, finality of judgment, one-judgment rule, discrimination) (Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 200th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-05-003233, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Maynard Tucker appeals an order dismissing his claim against the Statesman for employment discrimination. However, absent certain exceptions not relevant here, a trial court's order is not appealable until a final judgment has been rendered that disposes of all claims and parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). While Tucker filed a notice of appeal for the trial court's order regarding his discrimination claim against the Statesman, that order did not dispose of all claims and parties and was not final and appealable until the final judgment was rendered on August 17, 2006. Tucker has already pursued an appeal of the final judgment, which this Court resolved in Tucker v. Austin American-Statesman, No. 03-06-00437-CV, 2007 Tex. App. LEXIS 3316 (Tex. App.--Austin Apr. 26, 2007, pet. denied) (mem. op.).

Once the judgment became final, Tucker was entitled to one appeal of all issues in the underlying litigation. Only one final judgment may be rendered in any cause except where otherwise specially provided by law. Tex. R. Civ. P. 301. "It therefore follows that unless otherwise provided by law, the 'one final judgment rule' limits the number of appeals to one per case." Eddins v. Borders, No. 12-02-00322-CV, Tex. App. LEXIS 8263 (Tex. App.--Tyler Nov. 22, 2002, no pet.) (mem. op.). Tucker's appeal of the final judgment in this case has already been resolved. In Tucker's appeal of the final judgment, he failed to brief his employment discrimination claim against the Statesman. An appellant's brief must "state concisely all issues or points presented for review." Tex. R. App. P. 38.1(e). Where an issue on appeal is inadequately briefed, or as in the present case, not addressed in appellant's brief at all, "we cannot speculate as to the substance of the specific issues appellant claims we must address." Strange v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.--Dallas, pet. denied). Having failed to include any mention of his discrimination claim against the Statesman in his brief to this Court on appeal of the final judgment, Tucker may not now have a second opportunity to present additional issues by appealing an order issued prior to the final judgment. As a result, this appeal is dismissed for want of jurisdiction. Accordingly, Tucker's motion for extension of time to file an appellant's brief is denied as moot.

Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: September 26, 2007

DWOPPED Sep. 26, 2007 DISMISSED FOR WANT OF JURISDICTION:

(Before Chief Justice Law, Justices Waldrop and Henson)

Maxine Andrea Mendez v. David W. F. Carr--Appeal from 146th District Court of Bell County

Delagarza v. Texas DFPS (Tex.App.- Austin, Sep. 24, 2007)
DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)

Pablo Delagarza, Jr. v. Texas Department of Family and Protective Services--Appeal from 20th District Court of Milam County

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 31,385, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Pablo Delagarza, Jr. filed a motion requesting that his appeal be dismissed. See Tex. R. App. P. 42.1(a)(1). We grant the motion and dismiss the appeal.
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: September 24, 2007

Mason v. Mason (Tex.App.- Austin, Sep. 24, 2007)
DISMISSED ON APPELLANT'S MOTION Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)

Monica Mason v. John Mason--Appeal from 126th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-04-006244, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Monica Mason has filed an unopposed motion to dismiss her appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: September 24, 2007

ABATED Sep 21, 2007: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)

Jeffrey Roland Boggess v. Estate of Martha Blakley, with Betsy Blakley, the Independent Executor of the Estate of Martha Blakely--Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-FM-04-005498, HONORABLE PAUL DAVIS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This cause is before the Court on the parties' joint motion to abate appeal pending settlement. We grant the parties' joint motion to abate appeal. The parties are ordered to report to this Court on the status of this matter on or before sixty days from the date of this opinion. If settlement is complete, the parties shall file a proper motion in this Court to dispose of the appeal. If additional time is needed to complete the settlement proceedings, the parties shall advise the Court of the additional time needed to complete settlement.
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Abated
Filed: September 21, 2007

PUC Appeal dismissed by agreement

DISMISSED ON AGREED MOTION: Opinion by Justice Waldrop (Before Justices Puryear, Pemberton and Waldrop)

Constellation Energy Commodities Group, Inc. v. Public Utility Commission of Texas
Appeal from of County


DIRECT APPEAL FROM THE PUBLIC UTILITY COMMISSION OF TEXAS

M E M O R A N D U M O P I N I O N [Tex.App.- Austin, Sep, 21, 2007]

The parties have filed an Agreed Motion to Dismiss Appeal. This cause was previously abated. We reinstate the appeal, grant the Agreed Motion to Dismiss Appeal, dismiss all other pending motions, and dismiss this appeal.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Dismissed on Agreed Motion
Filed: September 21, 2007

Denial of open records request affirmed

Judicial records exempted from mandatory disclosure under Public Information Act p/k/a Open Records Act

Samuel T. Jackson v. Samuel T. Biscoe, in his official capacity as Travis County Judge; Travis County; and the Travis County Commissioner's Court, No. (Tex.App.- Austin, Oct. 2, 2007)(Opinion by Justice Patterson)(Public Information Act, judicial records exception)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
Disposition: Affirmed

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-05-003745, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Samuel T. Jackson filed a petition for writ of mandamus under the Public Information Act (1) in the district court, seeking to compel Samuel T. Biscoe, in his official capacity as Travis County Judge, to disclose reports of administrative fees collected in connection with certain proceedings. Biscoe moved for summary judgment, asserting that Jackson's request sought records of the judiciary, not records in Biscoe's custody, and such records are therefore not subject to the Act. The trial court granted summary judgment in favor of Biscoe, and Jackson appeals. For the reasons stated, we affirm the judgment.

BACKGROUND

The Controversy

On May 16, 2005, Jackson sent an electronically transmitted request to Travis County for information under the Public Information Act, seeking reports for the previous four years of administrative fees collected in connection with certain judicial proceedings, including but not limited to the following information: (1) the name and address of each person against whom a fee was assessed; (2) the style, number, and date of each case in which a fee was assessed; (3) the nature and date of each violation for which each fee was assessed; (4) the amount of the fee assessed, and the amount collected; and (5) the nature and date of each case in which no fee was required due to dismissal, acquittal, or error pursuant to section 706.005(b) of the transportation code. See Tex. Transp. Code Ann. §§ 706.005(b), .006 (West Supp. 2006).
The county did not solicit an opinion from the Texas attorney general (2) but responded to the request, claiming that Biscoe's office did not possess any records responsive to the request or that the documents were not accessible to Biscoe: "Please be informed that Judge Biscoe's office does not have the information you requested." Because the county concluded that the requested records included court records, an assistant county attorney referred Jackson to the justices of the peace in the county: "You may want to check with the Justices of the Peace in Travis County to see if they maintain the information you are seeking." In a separate communication, the assistant county attorney advised Jackson that the justice of the peace courts submit the information electronically to OmniBase Services of Texas, a private vendor, that maintains the information and produces a report on the program to which the "justice of the peace courts have access." The county also referred Jackson to OmniBase Services of Texas, the vendor that maintains and administers the records of fees collected pursuant to the program authorized by the legislature. The county provided Jackson with copies of contracts between Travis County and the Texas Department of Public Safety ("TDPS" or the "department") and between the department and OmniBase "to assist in the implementation of chapter 706," the Failure To Appear ("FTA") program.

With regard to the FTA information provided by the county or other local political subdivision, paragraph VIII of the contract provides:

If the person fails to appear or fails to pay or satisfy a judgment as required by law, the local political subdivision may submit an FTA report containing the following information:

(1) the jurisdiction in which the alleged offense occurred;
(2) the name of the local political subdivision submitting the report;
(3) the name, date of birth and Texas driver license number of the person who failed to appear or failed to pay or satisfy a judgment;
(4) the date of the alleged violation;
(5) a brief description of the alleged violation;
(6) a statement that the person failed to appear or failed to pay or satisfy a judgment as required by law;
(7) the date that the person failed to appear or failed to pay or satisfy a judgment; and
(8) any other information required by the TDPS.
* * *
The local political subdivision must make reasonable efforts to ensure that all FTA Reports are accurate, complete and non-duplicative.
Under the contract, the originating court that files the report has a continuing obligation to review and correct or supplement the report.

The Lawsuit

In October 2005, Jackson filed an original petition for writ of mandamus pursuant to section 552.321 of the Public Information Act, seeking to compel Biscoe in his official capacity as county judge to provide Jackson with copies of any reports prepared during the last four years concerning administrative fees collected by Travis County Justices of the Peace pursuant to section 706.006 of the Texas Transportation Code. See Tex. Gov't Code Ann. § 552.321 (West 2004); Tex. Transp. Code Ann. § 706.006. In his original answer, Biscoe asserted official, qualified, and absolute immunity. In an amended answer Biscoe asserted that the requested records were records of the judiciary and therefore not governed by the Act. Both parties filed motions for summary judgment.

In his summary judgment motion, Biscoe asserted that Richard Scott, Justice of the Peace for Travis County precinct 1, is the proper custodian of the records, and that the records are judicial records relating to the civil or criminal litigation in Judge Scott's court and are not public records under the Act. Biscoe attached to his motion the following documents: Jackson's e-mail correspondence with the county, a computer printout and an order for pre-trial conference relating to Jackson's own case before the justice of the peace, a court document relating to Jackson's failure to appear before the justice of the peace, and the affidavit of Judge Scott. In his affidavit, Scott averred that he is the custodian of judicial records relating to civil and criminal litigation:

On or about October 22, 2001, Samuel T. Jackson was assessed a speeding ticket in Travis County. He pled not guilty and was ordered to appear for a pre-trial disposition conference on September 25, 2002. Mr. Jackson failed to appear on that date or to advise the court that he would not be able to appear. As a result, on June 3, 2003, Mr. Jackson was charged with Failing to Appear. As a result, he was assessed two individual "OMNI" fees . . . .

The records relating to the "OMNI" fees assessed against Mr. Jackson are part of the judicial records relating to the criminal litigation created as a result of Mr. Jackson not appearing at the pre-trial conference and then being assessed a second charge of Failing to Appear. Since they are judicial records, they are maintained in my office and not with any other Travis County entity. Each "OMNI" fee is specific to each case which is assessed such a fee. Thus, if a fee exists, it is only maintained with the file to which it is associated.

The trial court granted summary judgment in Biscoe's favor. This appeal followed.

DISCUSSION

In three issues, Jackson complains that the records he seeks are not court records but are the records the county is required to maintain under section 706.007 of the transportation code, that the records are maintained by a private entity for the county and are therefore subject to the Act, and that, as county judge, Biscoe is the appropriate officer for public information requests for the county. Attaching evidence including the affidavit of Justice of the Peace Richard Scott, the county responds that the records sought are records of the judiciary and the Act does not govern access to records of the judiciary.

Standard of Review

We review a summary judgment de novo, Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004), and employ well-established standards of review: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Whether information is subject to the Act and whether an exception to disclosure applies to the information are questions of law. See City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000) (citing A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).

The Texas Public Information Act

The Texas Public Information Act is intended to promote openness in government and ensure that the governed are entitled to complete information about actions taken by public officials and employees. See Tex. Gov't Code Ann. § 552.001(a) (West 2004). The purpose of the Act is to provide public access "at all times to complete information about the affairs of government and the official acts of public officials and employees." See id. At the heart of the Act is the principle that the public is entitled to all information that is collected, assembled, or maintained by or for a governmental body. Id. § 552.002(a) (West 2004); Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). The Act does not limit the availability of public information except as expressly provided. See Tex. Gov't Code Ann. § 552.006 (West 2004); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.--Austin 2001, no pet.). In addition, the Act provides examples of specific categories of public information that may not be withheld unless expressly made confidential by other law. See Tex. Gov't Code Ann. § 552.022 (West 2004); In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001).

Section 552.0035 of the Act provides that "access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules." Tex. Gov't Code Ann. § 552.0035 (West 2004). The county's summary judgment evidence included the affidavit of Justice of the Peace Richard Scott in which Scott averred that the records at issue in this case are judicial records created in the judicial process and maintained by his office. This evidence is uncontroverted. (3) In the absence of controverting evidence, we conclude the records sought by Jackson are "information collected, assembled, or maintained by or for the judiciary" and that public access to them is not governed by the Act. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.) (public access to information "collected, assembled, or maintained by or for the judiciary" is not governed by the Public Information Act, but by rules adopted by the Supreme Court of Texas or other applicable laws or rules). Consequently, Jackson is not entitled to access to the records at issue in this case pursuant to the Public Information Act as alleged in his petition for mandamus. (4)

CONCLUSION

We overrule Jackson's issues on appeal and affirm the trial court's judgment
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: October 2, 2007

1. Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2006).
2. Tex. Gov't Code Ann. § 552.301 (West Supp. 2006); see In re City of Georgetown, 53 S.W.3d 328, 329-30 (Tex. 2001).
3. Although Jackson disputes that the records are collected, assembled, or maintained by or for the judiciary, he does not controvert the testimony in Scott's affidavit. Jackson asserts that the records are physically maintained by a third party vendor and subject to disclosure under the Public Information Act from the vendor through Judge Biscoe. Whether the records are physically maintained by a third party vendor or physically maintained by the justice court is not relevant to the analysis. Information maintained by someone other than the judiciary for the judiciary comes within the ambit of section 552.0035. See Tex. Gov't Code Ann. § 552.0035 (West 2004).
4. The county suggests that access to these records may be governed by Rule 12 of the Rules of Judicial Administration. But whether and to what extent Rule 12 applies to these records must be determined pursuant to the procedures set forth in Rule 12 and an inquiry made pursuant to Rule 12. See Abbott v. State Bar of Texas, No. 03-06-00592-CV, 2007 Tex. App. LEXIS 7232, *9 (Tex. App.--Austin Aug. 31, 2007, no pet. h.). We do not reach this question in light of our holding that public access to the records at issue is not governed by the Act.