CITY OF HOUSTON v. LLP (2025)

OPINION

In this appeal by a city from a final judgment in a mandamus suit under the Texas Public Information Act, the city challenges the trial court's award of attorney's fees to one plaintiff under Government Code section 552.323(a), and the other plaintiff challenges the trial court's order granting the city's plea to the jurisdiction and dismissing his claims against the city for lack of subject-matter jurisdiction. Concluding that the evidence is legally insufficient to support a finding that the judgment creditor incurred any attorney's fees, we reverse the award of attorney's fees and render judgment that the judgment creditor take nothing on its request for attorney's fees. Concluding that the grounds for the City's plea to the jurisdiction attack the merits rather than the trial court's subject-matter jurisdiction, we reverse the trial court's order granting the city's plea and remand the other plaintiff's claims for further proceedings.

I. Factual and Procedural Background

In 1998 appellee/cross-appellant Larry Edgar Estrada was convicted of capital murder and sentenced to death. The Court of Criminal Appeals affirmed Estrada's conviction and sentence, and the United States Supreme Court denied certiorari. The Court of Criminal Appeals denied Estrada's petition for a writ of habeas corpus in 2002. Estrada filed a pro se motion in the United States District Court for the Southern District of Texas (“Federal District Court”), asserting that he was indigent and asking the court to appoint counsel to represent him in the pursuit of habeas corpus relief in federal court. On December 30, 2002, the Federal District Court signed an order appointing attorneys Charles S. Kelley and James E. Tancula to represent Estrada. Kelley and Tancula were partners at Mayer Brown, LLP f/k/a Mayer, Brown, Rowe & Maw LLP (“Mayer Brown”). The order does not mention Mayer Brown but gives its address as the address for Kelley and Tancula. In September 2003 Kelley and Tancula, representing Estrada, filed a “skeletal petition for a writ of habeas corpus” stating that they had consented to appointment by the court as pro bono counsel for Estrada for the purposes of investigating and filing an application for a federal writ of habeas corpus challenging Estrada's conviction and death sentence.

Various people who were either a lawyer or a legal assistant at Mayer Brown sent written requests for information under the Texas Public Information Act (“TPIA”) seeking information that might be relevant to Estrada's federal habeas petition, although no mention of that habeas petition was made in any of the requests. Mayer Brown contends that it was seeking the requested information in the course of its representation of Estrada in his related habeas proceeding. On April 18, 2003, Rebecca Stewart, an attorney at Mayer Brown, sent a written request for information to the Houston Police Department (“HPD”) under the TPIA. Having received no response, Stewart sent HPD two more written requests on May 2, 2003—one restated the April 18 request in its entirety, while the other requested any firearms reports related to Estrada's incident number. None of Stewart's requests stated that she, Kelley, Tancula, or Mayer Brown represented Estrada or that any of the requests was being made on behalf of Estrada.

On January 21, 2004, Elizabeth Hardy, a legal assistant at Mayer Brown, sent a written request for information to the HPD under the TPIA seeking records relating to eight different cause numbers involving non-party Catalino Yanez. Hardy's letter did not state that she was representing Yanez or Estrada or that the request was made on behalf of either person. Appellant/cross-appellee the City of Houston (the “City”) sent a letter to the Texas Attorney General on February 6, 2004, with a copy to Hardy, stating that it believed that the information requested by Hardy was excepted from public disclosure under several sections of the TPIA. The City sent Hardy a letter on February 18, 2004, stating that (1) four of the eight cause numbers listed in the request related to an incident that involved a homicide case that already had been made available to Mayer Brown; (2) the City was providing Hardy with the public release offense reports for two other cause numbers; and (3) the City believed that the remainder of the requested information was excepted from required public disclosure under the TPIA.

On March 18, 2004, attorney Charles Kelley sent 13 written requests for information to HPD under the TPIA pertaining to (1) Estrada; (2) HPD Gang Task Force investigations into Primeros Los Carnales and three individuals; (3) HPD and homicide files regarding five individuals; (4) criminal activity statistics for eight specified zip codes; (5) all criminal incidents at a specified business during the years 1979 through 1983; and (6) one individual's involvement as a victim, witness, or complainant in any criminal incident. Kelley received no response regarding these 13 requests.

The requests sent on April 18, 2003, May 2, 2003, September 12, 2003, January 21, 2004, and March 18, 2004 from Stewart, Hardy, and Kelley did not state that they were made on behalf of Estrada or that Mayer Brown was representing Estrada. All of the written requests were made on Mayer Brown's letterhead. None of the requests contained a release signed by Estrada. The City's letters to Hardy were sent to Mayer Brown's business address and addressed to Elizabeth A. Hardy of Mayer Brown.

Estrada and Mayer Brown filed a petition for writ of mandamus under Government Code section 552.321 (“Mandamus Suit”) in May 2004 asking the trial court to direct the City to comply with the TPIA requests dated April 18, 2003, May 2, 2003, September 12, 2003, January 21, 2004, and March 18, 2004 (collectively the “Requests”). In September 2004 the City filed a plea to the jurisdiction with regard to Estrada (“Jurisdictional Plea”) arguing that the trial court lacked subject-matter jurisdiction because (1) Estrada is not a “requestor” as defined by the TPIA, and therefore he may not file a mandamus suit under Government Code section 552.321; and (2) because Estrada is currently incarcerated, under Government Code section 552.028(a) the City has no duty to respond to a request from him. Both the form and substance of this instrument is a plea to the jurisdiction seeking a dismissal of Estrada's claims for lack of subject-matter jurisdiction. The trial court signed an order on October 11, 2004, granting the Jurisdictional Plea and thus dismissing Estrada's claims for lack of subject-matter jurisdiction without specifying the grounds.

The City filed a “Third Plea to the Jurisdiction” asserting that the trial court lacked subject-matter jurisdiction over Mayer Brown's claims in this suit. The trial court signed an order denying this plea. On interlocutory appeal, this court affirmed the trial court's order. See City of Houston v. Estrada, No. 14-08-00900-CV, 2009 WL 783361, at *4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2009, no pet.) (mem. op.).

At various points while this Mandamus Suit was pending, the City produced to Mayer Brown documents responsive to various Requests. Ultimately, the City and Mayer Brown each filed multiple, competing summary-judgment motions. After holding hearings on the motions, on August 18, 2014, the trial court signed an interlocutory “Order Granting in Part and Denying in Part the Parties’ Pending Cross Motions for Summary Judgment” (“Order”). In the Order:

• The trial court found that employee payroll numbers, social security numbers, Texas driver's license numbers, credit card numbers, fingerprint or biometric identifiers, criminal gang database information and criminal history are confidential and that the City properly withheld this information from production to Mayer Brown.

• The trial court found that vehicle identification numbers and vehicle license plate numbers at issue in this case are not confidential and must be produced.

• The trial court issued its rulings on 124 pages of documents that the City had submitted to the court in camera and that the City had designated as entirely confidential. The trial court ruled that it did not lack jurisdiction over this Mandamus Suit based on governmental immunity.

• The trial court granted the part of the Mayer Brown's summary-judgment motion in which it asserted that as a matter of law Mayer Brown is a “requestor” under the TPIA.

• The trial court denied the part of Mayer Brown's summary-judgment motion asking for an order that the City produce employee payroll numbers, social security numbers, Texas driver's license numbers, credit card numbers, fingerprint or biometric identifiers, criminal gang database information and criminal history, and the trial court granted the City's summary-judgment motion on this point.

• The trial court ordered that, of the redacted documents produced by the City to Mayer Brown, the City must restore vehicle identification numbers and license plate numbers and produce those restored copies.

• The trial court ordered that the City was not required to produce certain pages that the City had submitted in camera.

• The trial court ordered the City to redact certain confidential information from certain pages and to produce the redacted pages to Mayer Brown.

• The trial court ordered the City to produce certain pages that the City had submitted in camera.

• Except as specifically stated in the Order, the trial court found as a matter of law that this Mandamus Suit was moot because the City had provided Mayer Brown with the public information, if any, responsive to the requests at issue.

Following the rendition of the Order and the City's production of documents, the only remaining issue to be resolved was Mayer Brown's request for its attorney's fees under Government Code section 552.323. The City requested a jury trial and paid the jury fee. The City also requested a preliminary bench trial to determine several issues fundamental to determining whether Mayer Brown is entitled to an award of attorney's fees under the TPIA: (1) whether Mayer Brown “substantially prevailed” as required by the TPIA; (2) whether Mayer Brown “incurred” attorney's fees as required by the TPIA; and (3) whether the City acted in reasonable reliance on written decisions of the attorney general's office when it withheld requested documents. See Tex. Gov't Code Ann. § 552.323(a) (West, Westlaw through 2023 4th C.S.).

The trial setting was postponed multiple times, and trial did not begin until more than eight years after rendition of the Order. On August 30, 2022, the trial court held a bench trial on the issues of whether Mayer Brown “substantially prevailed” and whether the City reasonably relied on the defenses available to it under section 552.323(a). The trial court found that Mayer Brown substantially prevailed and that the City did not reasonably rely on its possible section 552.323(a) defenses. The trial court did not determine whether Mayer Brown had “incurred” any attorney's fees and indicated that it would do so after the jury trial.

The jury trial occurred on September 1, 2022, and the jury found that a reasonable fee for the necessary legal services of Mayer Brown's attorneys for this Mandamus Suit was $1,213,000. The City filed an Amended Motion for Judgment Notwithstanding the Verdict (“JNOV Motion”), and Mayer Brown filed a motion for judgment on the verdict. The trial court rendered a final judgment, impliedly granting Mayer Brown's motion for judgment, impliedly denying the JNOV Motion, and ordering that Mayer Brown recover reasonable and necessary attorney's fees in the amount of $1,213,000. The City timely appealed the trial court's judgment, and Mayer Brown timely perfected a cross-appeal.

II. Issues and Analysis

In its first issue the City asks whether Mayer Brown incurred attorney's fees, as is required under Government Code section 552.323. In its second issue the City asks whether Mayer Brown substantially prevailed, as is required to recover reasonable attorney's fees under Government Code section 552.323. In its third issue the City asks whether the evidence was factually sufficient to support the jury's finding as to the amount of Mayer Brown's reasonable attorney's fees. In its fourth issue the City asks whether the trial court erred in striking the City's designated expert witnesses on attorney's fees. In its fifth issue the City asks whether the trial court erred in allowing Mayer Brown's expert witness to testify. In its sole cross-issue, Mayer Brown asks whether the trial court erred by granting the City's plea to the jurisdiction as to Estrada's claims because the grounds for the plea were non-jurisdictional.

An award of attorney's fees rests in the discretion of the trial court. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). A trial court abuses that discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles, or if its decision is not supported by legally or factually sufficient evidence. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex. App.–Houston [14th Dist.] 2006, no pet.).

A. Is the evidence legally sufficient to support a finding that Mayer Brown incurred attorney's fees in this case?

Mayer Brown and Estrada brought this Mandamus Suit under Government Code section 552.321. See Tex. Gov't Code Ann. § 552.321(a) (West, Westlaw through 2023 4th C.S.) (stating “[a] requestor ․ may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an attorney general's decision as provided by Subchapter G or refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C”) (footnote omitted). To bring a mandamus suit under section 552.321 Mayer Brown must be a “requestor.” See id. A requestor is defined as “a person who submits a request to a governmental body for inspection or copies of public information.” See id. § 552.003(6) (West, Westlaw through 2023 4th C.S.). If a plaintiff substantially prevails in a mandamus suit under section 552.323, the trial court “shall assess ․ reasonable attorney fees incurred by [the plaintiff],” unless the reasonable-reliance exception in section 552.323(a) applies.¹ See id. § 552.323.

The trial court dismissed Estrada's claims for mandamus relief under Government Code section 552.321 for lack of subject-matter jurisdiction early in this case, and Mayer Brown proceeded on the theory that it was the requestor and that its lawyers and legal assistants submitted the various Requests on its behalf. Although none of the Requests say that they are submitted on behalf of Mayer Brown, all of the Requests are letters written on Mayer Brown's letterhead. We presume, without deciding, that the Requests were made on behalf of Mayer Brown. Under this presumption, Mayer Brown has standing to bring this Mandamus Suit. See The Baytown Sun v. City of Mont Belvieu, 145 S.W.3d 268, 271–72 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Bonner v. City of Burleson, No. 10-11-00060-CV, 2011 WL 5221258, at *3 (Tex. App.—Waco Nov. 2, 2011, no pet.) (mem. op.). We also presume, without deciding, that Mayer Brown substantially prevailed on its claims for mandamus relief under Government Code section 552.321. Based on these presumptions, Mayer Brown is entitled to recover the reasonable attorney's fees that it incurred in this action. See id.

Under its first issue the City argues that Mayer Brown failed to provide any evidence that it incurred attorney's fees and that the evidence is to the contrary. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819.

The Supreme Court of Texas has determined that under the plain meaning of Government Code section 552.323, “[a] fee is incurred when one becomes liable for it.” Jackson v. State Office of Administrative Hearings, 351 S.W.3d 290, 299 (Tex. 2011). So we consider whether the evidence is legally sufficient to support a finding that Mayer Brown has become liable for attorney's fees in this case. At trial, Mayer Brown attorney Charles Kelley testified that (1) Mayer Brown did not send itself any invoices for fees in this case; (2) Mayer Brown is not obligated to pay any of the attorney's fees in this case; and (3) Mayer Brown is not liable to pay any of the attorney's fees to a third party. Considering all the evidence in the light most favorable to the challenged finding, indulging every reasonable inference that would support the finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not, the evidence would not enable reasonable and fair-minded people to find that Mayer Brown has become liable for any of the attorney's fees in this case. See Jackson, 351 S.W.3d at 299–300; McFarland v. Le–Vel Brands LLC, No. 05-17-00968-CV, 2018 WL 2213913, at *6–7 (Tex. App.—Dallas May 15, 2018, no pet.) (mem. op.); Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.—Fort Worth 2005, no pet.). We conclude the evidence is legally insufficient to support a finding that Mayer Brown has incurred any attorney's fees in this case. See Jackson, 351 S.W.3d at 299–300; McFarland, 2018 WL 2213913, at *6–7; Simmons, 166 S.W.3d at 350.

Though Mayer Brown asserts various arguments in support of the proposition that it incurred the attorney's fees, it does not assert that it is liable for the attorney's fees. Instead, it argues that (1) the real concern of the “incurred” requirement is that there be an attorney/client relationship; (2) individual pro se attorneys may not recover fees because they do not have an attorney/client relationship with themselves; but (3) Mayer Brown had an attorney/client relationship with Estrada. This argument lacks merit because (1) it does not show that Mayer Brown is liable for any of the fees; and (2) Estrada is not a prevailing plaintiff and did not recover any attorney's fees. See Tex. Gov't Code Ann. § 552.323; Jackson, 351 S.W.3d at 299–300.

Mayer Brown also relies on two federal cases under the federal Freedom of Information Act (“FOIA”). Mayer Brown relies on footnote 7 in the United States Supreme Court's opinion in Kay v. Ehrler, 499 U.S. 432, 436, n.7 (1991). This case holds that a pro se litigant may not recover attorney's fees under title 42, section 1988 of the United States Code, even if the litigant is an attorney. See 42 U.S.C. § 1988; Kay, 499 U.S. at 433–38. In footnote 7 the court stated in an obiter dictum that organizations may be able to recover attorney's fees under section 1988 because they cannot represent themselves pro se and must be represented by an attorney. See Kay, 499 U.S. at 436, n.7. Significantly, title 42, section 1988 of the United States Code does not require that the attorney's fees awarded have been incurred by the litigant, and the Kay opinion does not discuss any such requirement or whether a law firm was liable for attorney's fees for work performed by its attorneys. See 42 U.S.C. § 1988; Kay, 499 U.S. at 433–38. Thus Kay is not on point.

Mayer Brown also relies on Baker & Hostetler LLP v. United States Department of Commerce, and our concurring colleague states that the Baker & Hostetler court awarded attorney's fees to a law firm represented by its own lawyer in a FOIA case “despite FOIA's ‘incurred’ requirement.” Post at 3–4; see 473 F.3d 312, 324–26 (D.C. Cir. 2006). The Baker & Hostetler court concluded that a law firm was entitled to recover reasonable attorney's fees under FOIA without mentioning or addressing any requirement that the law firm have incurred attorney's fees, which is the requirement at issue in today's case under TPIA. See Baker & Hostetler LLP, 473 F.3d at 324–26. There is no indication in the Baker & Hostetler opinion that the parties raised any “incurred” requirement under FOIA or that the court considered whether any such requirement existed or affected its analysis. See id. Instead, the court stated that “[u]nder the plain language of § 552(a)(4)(E), Baker [&] Hostetler is a ‘complainant’ and may receive attorney's fees if it substantially prevailed.” Id. at 324. Thus, under the legal standard applied by the Baker & Hostetler court, FOIA does not impose an “incurred” requirement. See id. The court then addressed whether the law firm fell within “a narrow exception to attorney's fees statutes when individual plaintiffs represent themselves.” Id. This exception is not based on an “incurred” requirement. See id. at 324–26. The court did not address whether the law firm had become liable to pay the attorney's fees or had incurred the fees. See id. The Baker & Hostetler court did not award attorney's fees to a law firm despite FOIA's “incurred” requirement.² See id. Baker & Hostetler is not on point. See id.

Mayer Brown also points out that in the Rohrmoos case the Supreme Court of Texas stated that “courts have held that a law firm can be awarded fees for representation by its own attorney.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 488 (Tex. 2019). The high court made this statement in the context of the requirement that a party must be represented by an attorney to obtain an award of attorney's fees, and this requirement applies whether or not the party must have incurred the attorney's fees. See id. at 487–89. The Rohrmoos court did not address whether a law firm represented by its own attorney incurs attorney's fees when there is a requirement that the claimant have incurred the attorney's fees. See id. at 488. The case that the Rohrmoos court cited involved the award of attorney's fees under Chapter 38 of the Civil Practice and Remedies Code, which, unlike the TPIA, does not contain this requirement. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West, Westlaw through 2023 4th C.S.); Campbell, Athey & Zukowski v. Thomasson, 863 F.2d 398, 400 (5th Cir. 1989). The Rohrmoos court reiterated that when there is a requirement that the claimant have incurred the attorney's fees, “[a] fee is incurred when one becomes liable for it.” Rohrmoos Venture, 578 S.W.3d at 489 (internal quotations and citation omitted).

Mayer Brown also argues that even if it did not incur fees in the sense that it was not responsible for paying fees to itself, it incurred fees working on behalf of Estrada, who was liable for those fees. Attorney Charles Kelley testified that (1) Mayer Brown is not representing Estrada on a pro bono basis in the Mandamus Suit; (2) Mayer Brown has an agreement with Estrada that he will pay attorney's fees in the Mandamus Suit, and Estrada is liable for these fees; (3) Kelley discussed this matter with Estrada, and Estrada understands that he is liable for attorney's fees in the Mandamus Suit; and (4) Estrada's agreement with Mayer Brown is not written, and because of limitations imposed on sending mail to incarcerated individuals, Mayer Brown has not sent Estrada any attorney's fees invoices.

Presuming for the sake of argument that Estrada was liable to pay for attorney's fees for all of the work done by Mayer Brown's attorneys, that would mean that Estrada incurred these fees, not Mayer Brown. Even if Estrada had incurred attorney's fees, this would not support an affirmance of the trial court's award of attorney's fees to Mayer Brown because Estrada's claims were dismissed for lack of subject-matter jurisdiction early in the case. Therefore, the trial court did not determine whether Estrada was entitled to mandamus relief or whether he was entitled to attorney's fees under Government Code section 552.323(a). See Tex. Gov't Code Ann. § 552.323(a). Because Estrada's claims were never adjudicated on the merits, Estrada did not substantially prevail in the Mandamus Suit, and the trial court did not determine whether Estrada had incurred any attorney's fees that might be awarded to Estrada under section 552.323(a). See id. On the merits, the trial court has not determined whether Estrada is a “requestor” who may file a mandamus suit under Government Code section 552.321(a). See Tex. Gov't Code Ann. §§ 552.003(6), 552.321(a). Therefore, even if Estrada incurred attorney's fees in the Mandamus Suit, this situation would not provide a basis for this court to affirm the trial court's award of attorney's fees to Mayer Brown or to render judgment in favor of Estrada.

Mayer Brown argues that the City's interpretation of the TPIA would have a disastrous result because incarcerated individuals would never be able to recover their attorney's fees for substantially prevailing in a mandamus suit under the TPIA. We disagree. Under section 552.028(a) a governmental body is required to accept and comply with a request for information from the attorney of an individual who is imprisoned or confined in a correctional facility. See Tex. Gov't Code Ann. § 552.028 (West, Westlaw through 2023 4th C.S.). If the attorney of such an individual makes a request for information under the TPIA on the individual's behalf in a way that makes the individual a “requestor” and if the individual substantially prevails in a mandamus suit, the individual may recover costs of litigation and reasonable attorney's fees incurred by the individual, if the reasonable-reliance exception in section 552.323(a) does not apply. See id. §§ 552.003(6); 552.323(a).

The evidence is legally insufficient to support a finding that Mayer Brown has incurred any attorney's fees in this case. See Jackson, 351 S.W.3d at 299–300; McFarland, 2018 WL 2213913, at *6–7; Simmons, 166 S.W.3d at 350. Therefore, the trial court abused its discretion in awarding Mayer Brown attorney's fees under Government Code section 552.323(a). See Tex. Gov't Code Ann. § 552.323(a); Bocquet, 972 S.W.2d at 21.

B. Would the grounds asserted in the Jurisdictional Plea, if valid, deprive the trial court of subject-matter jurisdiction?

In his sole cross-issue Estrada asks whether the trial court erred in granting the Jurisdictional Plea as to Estrada's mandamus suit because the City's grounds were not jurisdictional and because Estrada was represented by counsel. In the Jurisdictional Plea the City argued that the trial court lacked subject-matter jurisdiction over Estrada's claims because (1) Estrada is not a “requestor” as defined by the TPIA because he did not make a request for public information from the City, and therefore he may not file a Mandamus Suit; and (2) because Estrada is currently incarcerated, under Government Code section 552.028(a) the City has no duty to respond to a request from him. Under this court's binding precedent if Estrada lacks standing to bring a mandamus suit because he is not a “requestor” under the TPIA, Estrada's mandamus suit fails on the merits, but the trial court still has subject-matter jurisdiction over the mandamus suit. See City of Houston v. Estrada, 14-08-00900-CV, 2009 WL 783361, at *1–4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2009, no pet.) (mem. op.); Concerned Community Involved Development, Inc. v. City of Houston, 209 S.W.3d 666, 673–74 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). If under Government Code section 552.028(a) the City has no duty to respond to Estrada's requests, Estrada's Mandamus Suit would fail on the merits, but the trial court would still have subject-matter jurisdiction. See Harrison v. Vance, 34 S.W.3d 660, 662–63 (Tex. App.—Dallas 2000, no pet.). The grounds the City asserted in the Jurisdictional Plea, if valid, would not deprive the trial court of subject-matter jurisdiction. See Estrada, 2009 WL 783361, at *1–4; Concerned Community Involved Development, Inc., 209 S.W.3d at 673–74; Harrison, 34 S.W.3d at 662–63. Therefore, the trial court erred in granting the Jurisdictional Plea and dismissing Estrada's mandamus suit for lack of subject-matter jurisdiction. We reverse this ruling, and remand to the trial court for further proceedings.

Our concurring colleague agrees that this court is bound by the Supreme Court of Texas's determination in Jackson that under the plain meaning of Government Code section 552.323, “[a] fee is incurred when one becomes liable for it” and that under the Jackson precedent Mayer Brown may not recover attorney's fees under this statute. Jackson, 351 S.W.3d at 299; see post at 4. Nonetheless our colleague asks the Supreme Court of Texas to consider this important issue because, in part, the result reached in this opinion will be disastrous for incarcerated individuals. See post at 2, n.1. She correctly notes that under section 552.028(a) a governmental body need not accept or comply with a request for information from an incarcerated individual or the individual's agent, unless the agent is the individual's attorney. See Tex. Gov't Code Ann. § 552.028.

Our concurring colleague thinks that incarcerated individuals who bring mandamus suits under Government Code section 552.321 are much more likely to be represented in these suits by pro bono lawyers or public defenders—who will not be able to recover attorney's fees—than to have agreed to be liable for the attorney's fees of their lawyers. See post at 2, n.1. Nothing before this court indicates how common either of these scenarios is, but in today's case attorney Charles Kelley testified that Mayer Brown is not representing Estrada on a pro bono basis in the Mandamus Suit. Mayer Brown is a private law firm, not a public defender. Kelley stated that Mayer Brown has an agreement with Estrada that he will pay attorney's fees in the Mandamus Suit and that Estrada is liable for these fees. According to Kelley he discussed this matter with Estrada, and Estrada understands that he is liable for attorney's fees in the Mandamus Suit. Mayer Brown and Estrada contend that Estrada incurred attorney's fees in the Mandamus Suit. At this juncture, it would be premature for this court to address this contention, because the trial court has not yet determined whether Estrada is entitled to mandamus relief or whether he is entitled to reasonable attorney's fees under Government Code section 552.323(a). See Tex. Gov't Code Ann. § 552.323(a); Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at *10 (Tex. App.—Austin Dec. 23, 2014, no pet.) (stating, in a case in which the court of appeals held that the trial court erred in dismissing plaintiff's ultra vires claims for lack of subject-matter jurisdiction, that it would be premature for the court of appeals to address the merits of these claims because the trial court had not yet addressed the merits and the only issue on appeal was subject-matter jurisdiction) (mem. op). Nonetheless, this evidence and these contentions show that the result reached by applying the Jackson precedent to today's case may not be the disastrous result for incarcerated individuals that our concurring colleague anticipates.

III. Conclusion

The evidence is legally insufficient to support a finding that Mayer Brown has incurred any attorney's fees in this case, and so the trial court abused its discretion in awarding Mayer Brown attorney's fees under Government Code section 552.323(a). Therefore, we sustain the first issue, reverse the part of the trial court's judgment awarding Mayer Brown reasonable and necessary attorney's fees and render judgment that Mayer Brown take nothing on its request for attorney's fees.³ The grounds the City asserted in the Jurisdictional Plea, if valid, would not deprive the trial court of subject-matter jurisdiction, and so the trial court erred in granting the Jurisdictional Plea. To the extent Estrada asserts that the trial court erred in granting the Jurisdictional Plea as to his mandamus suit because the City's grounds were not jurisdictional, we sustain the cross-issue.⁴ We reverse the trial court's order granting the Jurisdictional Plea,⁵ and remand to the trial court for further proceedings. Except to the extent that we have reversed the above-mentioned parts of the trial court's final judgment, we affirm that judgment.

CONCURRING OPINION

For over a year, the City of Houston gave Mayer Brown the runaround on its eighteen Public Information Act requests. The City produced some documents, to be sure, but it also blew deadlines and improperly withheld responsive documents. Mayer Brown eventually filed a mandamus suit under the Act. After ten years of litigation, the trial court ruled that the Act entitled Mayer Brown to fees, and a jury unanimously awarded an amount.

This Court now reverses that fee award.

The Public Information Act was enacted to provide the public “complete information” about the affairs of government. Tex. Gov't Code § 552.001(a). The Act is modeled after its federal counterpart, the Freedom of Information Act, but even “more strongly favors disclosure.” See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360, 364 (Tex. 2000). The Act also more strongly favors fees—Congress said a court “may” impose fees; the legislature said a court “shall.” Compare 5 U.S.C. § 552(a)(4)(E) with Tex. Gov't Code § 552.323(a). Fees are an important part of the Act's purpose in holding the government in check.

There is just one wrinkle here. The Act says that the trial court shall impose only the reasonable attorney's fees that were “incurred.” Tex. Gov't Code § 552.323(a). “A fee is incurred when one becomes liable for it.” Jackson v. State Off. of Admin. Hearings, 351 S.W.3d 290, 299 (Tex. 2011). The court today holds that a law firm represented by its own lawyer did not incur fees because it did not send itself invoices and was not obligated to pay its lawyers a separate fee.

This holding will equally bar fee awards to any lawyer who doesn't expect a client to pay a separate fee—in-house, pro bono, and non-profit lawyers, a law firm represented by its own lawyers like Mayer Brown, and even government lawyers—when a statute imposes an “incurred” requirement.¹ And many do, including fee-shifting statutes for certain condemnation actions,² civil actions brought against a party who interfered with a parent's possessory interest in a child,³ the Texas Medical Liability Act,⁴ and the Texas Civil Participation Act.⁵

But there is more. Many statutes entitle the Attorney General to recover fees that he incurs while enforcing Texas law in critical ways. See, e.g., Tex. Hum. Res. Code § 36.007 (medical fraud); Tex. Ins. Code § 752.0002 (balance billing); Tex. Transp. Code § 643.255 (motor vehicle registration). With a staff of 750 taxpayer-paid lawyers, the Attorney General generally does not hire outside lawyers. How may he ever recover fees under these statutes, as the legislature provided, if he pays his lawyers a preset salary rather than a separate hourly fee? Today's opinion renders these fee-shifting statutes a nullity, to the detriment of the public fisc. Contra Bailey v. Smith, 581 S.W.3d 374, 397-98 (Tex. App.—Austin 2019, pet. denied) (holding that assistant attorneys general could recover fees incurred in defending against a lawsuit).

Other courts have wrestled with this issue. The Seventh Circuit has allowed such fees because “salaried government lawyers, like in-house and non-profit counsel, do incur expenses if the time and resources they devote to one case are not available for other work.” Wis. v. Hotline Indus., Inc., 236 F.3d 363, 365-66 (7th Cir. 2000); see Textor v. Bd. of Regents of N. Ill. Univ., 711 F.2d 1387, 1396-97 (7th Cir. 1983). The D.C. Circuit held likewise in awarding fees to a law firm represented by its own lawyer in a FOIA case, despite FOIA's “incurred” requirement. Baker & Hostetler LLP v. U.S. Dep't of Com., 473 F.3d 312, 324 (D.C. Cir. 2006). The D.C. state court did too. Nwaneri v. Quinn Emanuel Urquhart & Sullivan, LLP, 250 A.3d 1079, 1084 (D.C. 2021) (“We conclude, however, that a self-represented law firm can properly be viewed as having ‘incurred’ fees for purposes of § 16-4425(c).”).

The Texas Supreme Court has not decided this issue, which is different than whether a lawyer can recover fees when representing himself. See Jackson, 351 S.W.3d at 299. As the Fifth Circuit held in Gahagan v. United States Citizenship & Immigration Servs., 911 F.3d 298, 305 (5th Cir. 2018), a lawyer representing himself doesn't “incur” fees because he doesn't have “a relationship to one or more others.” But that just proves the point: “there is always an attorney-client relationship” when the party is an organization like Mayer Brown because an organization cannot represent itself. Kay v. Ehrler, 499 U.S. 432, 436 n.7 (1991) (recognizing that the bar to pro se lawyers recovering fees would not apply to organizations represented by in-house or pro bono lawyers).

Nonetheless, I believe we are bound by the Texas Supreme Court's holding that a fee is incurred only when one becomes liable for it, Jackson, 351 S.W.3d at 299, so I join the Court's holding. I write separately to ask the Texas Supreme Court to consider this important issue.

FOOTNOTES

1.   Under this exception, “the court may not assess those costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on: (1) a judgment or an order of a court applicable to the governmental body; (2) the published opinion of an appellate court; or (3) a written decision of the attorney general, including a decision issued under Subchapter G[ ] or an opinion issued under [s]ection 402.042.” Tex. Gov't Code Ann. § 552.323(a) (footnote omitted).

2.   Our concurring colleague also cites Nwaneri v. Quinn Emanuel Urquhart & Sullivan, LLP, an opinion of the District of Columbia Court of Appeals. See 250 A.3d 1079, 1084 (D.C. 2021). The Nwaneri opinion involved D.C. Code section 16-4425(c), not FOIA or TPIA. See id. at 1083–85. Though the Nwaneri court held that a law firm could recover reasonable attorney's fees under a statute that it presumed had an “incurred” requirement, the court did so because it concluded that this “incurred” requirement did not prevent the recovery attorney's fees in the absence of an arrangement for payment of attorney's fees, such as in a prior opinion in which pro bono lawyers acting as guardians ad litem were allowed to recover attorney's fees despite an “incurred” requirement. See id. at 1084–85. This analysis conflicts with the Supreme Court of Texas's interpretation of the plain meaning of “incurred” in Government Code section 552.323(a). See Jackson, 351 S.W.3d at 299. Thus, Nwaneri is not on point.

3.   We need not and do not address the second, third, fourth, and fifth issues.

4.   We need not and do not address the remainder of Estrada's cross-issue.

5.   This interlocutory order merged into the trial court's final judgment.

1.   Mayer Brown argues that the result reached in today's opinion will have a particularly disastrous result for incarcerated individuals. Unlike the majority, I agree. The legislature specifically required incarcerated people to be represented by counsel to invoke the Act—otherwise, the government need not even respond to their information requests. But how often will an incarcerated person and a lawyer really reach an agreement for a separate fee in a case under the Act? Their lawyers are much more likely to be pro bono or public defenders. Neither will be able to recover fees.The majority waves off this concern, saying that these lawyers can recover fees so long as they incur them. I find that explanation illusory when today's opinion only allows a fee recovery when an incarcerated person agrees to pay his lawyer hourly.

2.   See Tex. Prop. Code § 21.019.

3.   See Tex. Fam. Code § 42.006.

4.   See Tex. Civ. Prac. & Rem. Code § 74.351.

5.   See id. § 27.009.

Randy Wilson, Justice

(Boatman, J., concurring).