Ken Paxton, Attorney General of the State of Texas, Appellant v. Texas Health and Human Services Commission, Appellee
The Texas Health and Human Services Commission (HHSC) brought a declaratory action against the Attorney General in connection with a request for public information regarding healthcare-service providers' Medicaid claims for reimbursement. HHSC asserts that such information is confidential by law, and thus not subject to disclosure under the Texas Public Information Act (PIA), because the Human Resources Code prohibits the disclosure of “the names of, or any information concerning, persons applying for or receiving [Medicaid] assistance.” Tex. Human Res. Code § 12.003(a); see Tex. Gov't Code §§ 552.022 (providing mandatory disclosure for certain categories of documents unless they are “expressly confidential under other law”), .101 (exemption to disclosure for confidential information); .352 (offense for distribution or misuse of confidential information). The Attorney General argues that the requested information is not confidential because it does not identify the individuals from whose claims the information is derived and, thus, is not “any information concerning” Medicaid applicants or recipients. Considering competing motions for summary judgment, the trial court determined that the requested information is protected from disclosure and granted summary judgment in favor of HHSC. The Attorney General appeals. We will reverse the district court's summary judgment and remand the case for further proceedings.
HHSC is charged with supervising the administration and operation of the Texas Medicaid program. See Tex. Gov't Code §§ 531.0055(b)(1), .021. In August 2014, HHSC received a public-information request for certain information derived from Medicaid reimbursement claims submitted to HHSC by healthcare providers during the calendar years 2012, 2013, and the first six months of 2014. The specific Medicaid-claim information requested was “date of service; procedure code; claim status; billed amount; paid amount; provider name; provider National Provider Identifier; provider masked Texas Provider Identifier; provider type code; provider specialty code; provider county code; provider zip code; and billing entity.”
Asserting that the request sought “information concerning” Medicaid recipients, and thus was confidential information under the Human Resources Code, HHSC refused to release the information and instead sought a letter ruling from the Attorney General regarding HHSC's disclosure obligations under the PIA. See Tex. Hum. Res. Code §§ 12.003(a) (prohibiting use or disclosure of “names, or any information concerning,” Medicaid applicants or recipients), 21.012(a)(1) (requiring HHSC to “restrict the use or disclosure of information concerning” Medicaid applicants and recipients), Tex. Gov't Code § 552.301(a) (directing governmental body seeking to withhold information to request Attorney General ruling). The Attorney General's Open Records Division determined that the Medicaid claim numbers are confidential under section 12.003 and, thus, must be withheld under the PIA's exception to disclosure for information made confidential by law, but that the remaining requested information is public information subject to disclosure under the PIA because it does not identify the Medicaid recipients. See Tex. Att'y Gen. OR2014-20095, at 2 (determining that the requested information “consists of identifying information of providers rather than Medicaid recipients”).
HHSC filed suit in Travis County District Court, seeking relief from compliance with the Attorney General's decision via declaratory judgment that the requested information was confidential under section 12.003 of the Human Resources Code. See Tex. Gov't Code § 552.324 (authorizing declaratory action by governmental body to withhold information). Both parties filed cross motions for summary judgment, joining issue on the interpretation of section 12.003 as it relates to the requested information. The Attorney General contended that section 12.003 should be interpreted narrowly to protect only information that identifies Medicaid recipients or applicants. HHSC argued for a broader interpretation under which the requested information is confidential because it is “information concerning” Medicaid recipients. The trial court “determine[d] that the information at issue is protected from disclosure by section 552.101 of the Texas Government Code,” granted HHSC's summary-judgment motion, and denied the Attorney General's cross-motion.
The Attorney General challenges the district court's judgment in one issue, asserting that the requested information at issue here is not confidential, and thus not excepted from required public disclosure under the PIA, because the information is not “concerning” individual information regarding Medicaid applicants or recipients. More specifically, the Attorney General maintains that, while Human Resources Code section 12.003 “clearly expresses a legislative intent to encompass the broadest range of individual client information,” Tex. Att'y Gen. OR2014-20095, at 2, the requested information here is not information that involves the personal interests of Medicaid applicants and recipients, but rather data relating to healthcare service providers and provider claims for reimbursement.
We begin our analysis of this issue with a general review of the PIA's provisions and policies. The PIA explicitly instructs our inquiry here, emphasizing the fundamental policy of this State that “government is the servant and not the master of the people,” and that the people of Texas, “in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” The PIA insists that citizens “remain[ ] informed so that they may retain control over the instruments they have created,” therefore, Texans are entitled “to complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov't Code § 552.001(a); see Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 293 (Tex. 2011). To advance these policy goals, the Legislature has directed that courts “liberally construe” the PIA in favor of open disclosure of requested information. See Tex. Gov't Code § 552.001 (“This chapter shall be liberally construed in favor of granting a request for information.”). The necessary corollary to this directive is that exceptions to disclosure must be construed narrowly. Texas State Bd. of Chiropractic Exam'rs v. Abbott, 391 S.W.3d 343, 347 (Tex. App.—Austin 2013, no pet.) (“Exceptions to the disclosure requirement of the PIA are narrowly construed.” (citing Arlington Indep. Sch. Dist. v. Texas Att'y General, 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.)).
In keeping with its fundamental purpose of promoting transparency in government, the PIA's key provisions obligate the government, stated generally, to make public information reasonably available to whomever properly makes a request. See Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 244–45 (Tex. App.—Austin 2016, no pet.) (describing PIA process). Only if the requested public information falls under one of the PIA's specific exceptions to disclosure or, at issue here, if the public information is made “confidential by law, either constitutional, statutory, or by judicial decision,” can the governmental body avoid disclosure. See Tex. Gov't Code § 552.101; Austin Bulldog, 490 S.W.3d at 244–45.
HHSC seeks to withhold the information requested here under the PIA's confidential-by-law exception to disclosure. See Tex. Gov't Code §§ 552.101 (exemption for confidential information), .022 (providing mandatory disclosure for certain categories of documents unless they are “expressly confidential under other law”), .352 (offense for distribution or misuse of confidential information). HHSC contends that the requested information at issue here is confidential because the Human Resources Code prohibits disclosure of “information concerning[ ] persons applying for or receiving [Medicaid] assistance.” Tex. Hum. Res. Code § 12.003; see In re City of Georgetown, 53 S.W.3d 328, 334 (Tex. 2001) (holding that information is “confidential” if statute or rule prohibits its disclosure). The Attorney General asserts that section 12.003 makes confidential only information that is individual to or that identifies Medicaid recipients or applicants. Resolving this issue, then, presents us with a matter of statutory construction, a question of law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
As the Texas Supreme Court has emphasized repeatedly, our “primary objective” in statutory construction “is to determine the Legislature's intent which, when possible, we discern from the plain meaning of the words chosen.” Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012); see, e.g., Southwest Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016) (“Our primary objective is to give effect to the Legislature's intent, which we ascertain from the plain meaning of the words used in the statute, if possible.”); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“When construing a statute, our primary objective is to ascertain and give effect to the Legislature's intent. ․ To discern that intent, we begin with the statute's words.”). We must read words and phrases “in context” and construe them “according to the rules of grammar and common usage.” Tex. Gov't Code § 311.011(a). “Language cannot be interpreted apart from context. The meaning of a word that appears ambiguous when viewed in isolation may become clear when the word is analyzed in light of the terms that surround it.” TGS-NOPEC, 340 S.W.3d at 441.
Construction of section 12.003
Our analysis of the parties' statutory-construction arguments turns upon the language of Human Resources Code section 12.003(a), which provides in relevant part:
Except for purposes directly connected with the administration of [Medicaid] programs ․ , it is an offense for a person to ․ disclose ․ or to authorize ․ the use of the names of, or any information concerning, persons applying for or receiving [Medicaid] assistance if the information is directly or indirectly derived from the records, papers, files, or communications of [HHSC] or acquired by employees of [HHSC] in the performance of their official duties.
Tex. Hum. Res. Code § 12.003(a) (emphasis added). Because there is no dispute that the un-emphasized material portions of this provision apply to the requested information at issue here, our focus is limited to the scope of the phrase “the names of, or any information concerning, persons applying for or receiving [Medicaid] assistance.” Id.
HHSC argues that the requested information is necessarily “information concerning” Medicaid recipients because it is derived from individual recipients' Medicaid-claim records that involve the provision of Medicaid services. Specifically, HHSC urges that disclosure of the requested information is prohibited “[b]ecause claim-level information, relating to an individual Medicaid recipient, disclosed on a claim-by-claim basis, inherently concerns the individual recipient from whose claim such information is directly derived.” Although the claim-level information plainly has a factual relationship to Medicaid recipients, we disagree that this relationship in itself establishes that the information is “information concerning” Medicaid recipients in the sense that phrase is used in section 12.003.
The fact that the requested information at issue here is necessarily taken from individuals' Medicaid files is not, as HHSC seems to argue, dispositive here. Although section 12.003 does require that the protected information be derived from HHSC records, the information from those records is not ultimately shielded from disclosure unless it is “information concerning [ ] persons applying for or receiving [Medicaid] assistance.” Tex. Hum. Res. Code § 12.003(a) (emphasis added). Stated another way, the plain language of section 12.003 does not make all information derived from Medicaid records confidential, only the information in a Medicaid record that “concerns” a Medicaid recipient or applicant. Had the Legislature intended for this provision to shield all information derived from these Medicaid records simply because it comes from Medicaid records, it could have easily done so by using different text, not to mention fewer words.
We recognize that “concerning” is capable of broad meaning, see The American Heritage Dictionary of the English Language 381 (5th ed. 2011) (defining “concerning” as “in reference to”), but the legislative directive to construe the PIA liberally in favor of disclosure—and its correlative directive to construe exceptions to disclosure narrowly, see Chiropractic Exam'rs, 391 S.W.3d at 347)—combined with principles of statutory construction compel us to construe “concerning” more narrowly than suggested by HHSC. First, we note that if we were to construe “concerning” here as suggested by HHSC, no information from claims for Medicaid, which is undisputedly a program funded with public money, would be accessible to the public through a PIA request for disclosure. To do so would also go against the plain intent of section 12.003 given that, as noted above, the Legislature did not impose a blanket prohibition on disclosure, but chose to make only certain information confidential. Likewise, by using both “names” and “or any information concerning” to modify “persons,” the text of section 12.003 suggests an intent to protect only that information that is individual to or that identifies the claimant or applicant. To read the phrase “any information concerning” without reference to its antecedent “names”—i.e., out of its context—renders the Legislature's use of the word “names” superfluous given that a person's name is always “information concerning” that person. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014) (“We must not interpret the statute ‘in a manner that renders any part of the statute meaningless or superfluous.’ ”); see Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (“We presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.”). But simply considering the plain text in context, section 12.003 expresses an intent to shield only that information in Medicaid records that names or refers to Medicaid applicants or recipients—i.e., identifies the applicants or recipients, discloses their personal information, or could be used to identify them or disclose their personal information—not an intent to shield all information concerning Medicaid claims.
Having determined that the Human Resources Code makes confidential only that information in a Medicaid records that identifies or may identify applicants or recipients and their personal information, we turn to the parties' cross motions for summary judgment to determine what judgment the trial court should have rendered. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (holding that where both parties move for summary judgment and the trial court grants one motion and denies the other, “we determine all issues presented and render the judgment the trial court should have rendered” ).1
In its motion for summary judgment, HHSC presented, under seal, a sample of the information responsive to the request at issue here and an accompanying sworn document explaining the various categories of data in the sample that would be responsive to the request at issue here. As alluded to above, HHSC's sample data lists the following categories of information on a claim-by-claim basis, to which we have added HHSC's explanation where necessary:
Detail line number (“refers to a specific line on an individual claim where a procedure code is listed; it is included whenever procedure codes are requested)
Date of service
Procedure code (“ specifies which procedure(s) and/or service(s) were provided for the Medicaid recipient”)
NPI (“National Provider Identifier”)
TPI (“Texas Provider Identifier”)
Provider name (identifies “the name of the provider who billed Medicaid”)
Provider type (“refers to the kind of provider who submitted the claim, such as an individual doctor, a group practice, or hospital organization”)
Specialty (“identifies speciality or sub-specialty of the doctor or hospital”)
Program—indicates how the provider was paid (either directly by Medicaid administrator or reimbursement by a managed-care organization)
In its summary-judgment motion, HHSC contends that this information is necessarily “information concerning” a Medicaid recipient, and therefore confidential, because it is directly derived from Medicaid claims submitted to HHSC. Regarding the date-of-service category (i.e., when a Medicaid client received a particular service), HHSC argues that the Health Insurance Portability and Accountability Act protects a patient's admission and discharge date. For procedure code, HHSC contends that this information is concerning a Medicaid recipient because it discloses the medical services provided to that recipient and could also “implicitly disclose” a diagnosis or past medical history. As for the remaining categories, HHSC acknowledges in its motion that the information was “not necessarily confidential in and of itself,” but that it was nevertheless confidential under the Human Resources Code because of its connection to the other responsive data. Specifically, HHSC argued that the collective information should be confidential because it reveals the what, when, and where of the recipient's medical treatment.
HHSC's summary-judgment evidence does nothing more than establish what specific categories of data it has that would be responsive to the request at issue here and examples of the information contained in those categories. HHSC's evidence does not conclusively establish that the information in its sample identifies or refers to any claimant or discloses their personal information, nor does it establish, despite HHSC's conclusory assertions to the contrary, that the information, or some combination of the information, could be used to identify claimants or their personal information. Likewise, the Attorney General's motion for summary judgment, which did not offer any additional evidence, fails to conclusively negate that the information in the sample identifies or refers to individuals or discloses their personal information, or negate that someone could derive such from the information provided. Accordingly, neither party is entitled to summary judgment on the record before us.
Because neither party was entitled to judgment as a matter of law, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
Reversed and Remanded
I respectfully dissent. The question before us is rooted in the tension between the statutory mandate that the Public Information Act (PIA) be construed liberally in favor of disclosure and an exception to disclosure in the Human Resources Code containing broad language. This mirrors the larger policy tension between transparency in government and protection of individuals' confidential medical information. In this close case, I dissent from the majority because I believe we are ultimately constrained by the broad language of the Human Resources Code and the “claim-specific” nature of the information sought.
The representative sample of requested information includes (among other information) the date of service, procedure code, provider name, and provider zip code for each claim. This information constitutes a nearly complete picture of an individual's received medical service: the when, the what, the by-whom, and the where. The Commission presented evidence that the procedure code can at times also reveal a diagnosis and plan for care, illuminating additional details (the why and the what-next) about specific services provided to a person applying for or receiving assistance. This combination of information as presented in a claim-by-claim format is necessarily information concerning a person applying for or receiving assistance because it describes in detail certain medical procedures beginning and ending with that person. Omitting the person's name and the claim number causes the information to no longer identify the person, but it does not change the information's character as concerning him or her. To interpret “any information concerning” as protecting only information identifying persons applying for or receiving assistance is contrary to the broad language of the statute. Accordingly, I would conclude that the requested information concerns persons applying for or receiving assistance and is therefore protected by Section 12.003.
Section 12.003 states:
Except for purposes directly connected with the administration of the assistance programs of the commission or Department of Aging and Disability Services, as applicable, it is an offense for a person to solicit, disclose, receive, or make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of the names of, or any information concerning, persons applying for or receiving assistance if the information is directly or indirectly derived from the records, papers, files, or communications of the commission or department or acquired by employees of the commission or department in the performance of their official duties.
Tex. Hum. Res. Code § 12.003(a) (emphasis added). This case turns on the construction of the phrase “any information concerning[ ] persons applying for or receiving assistance,” and whether it includes the requested information. See id.
As always, our principal aim in interpreting a statute is to effectuate the Legislature's intent, as indicated by the plain meaning of the text of the statute. Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016). Because the phrase “any information concerning” follows a specific type of protected information and a disjunctive, “names of, or,” it necessarily enlarges the protection to cover more than the names of persons applying for or receiving assistance. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014) (“We must not interpret the statute ‘in a manner that renders any part of the statute meaningless or superfluous.’ ”). The difficult task is delineating the scope of “any information concerning” to determine if it includes the information requested in this situation. In other words, how much more than names is protected? The majority concludes that “names of” should inform our interpretation of the term “any information concerning,” reading it to mean “any information identifying.” In contrast, I read “names of, or any information concerning, persons” to identify two separate types of protected information—names of persons and any information concerning persons—as indicated by the use of the disjunctive “or.” See City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 642 (Tex. 2013) (“the Legislature's use of the disjunctive word ‘or’ is significant when interpreting statutes”). “[T]he use of the disjunctive conjunction ‘or’ between the two phrases ․ signifies a separation between two distinct ideas.” Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000). Therefore, although the two phrases provide context for each other, they are separate. There is no indication the Legislature intended to narrow the definition of “any information concerning” by juxtaposing it with “names of.”
As the majority recognizes, the plain meaning of “any information concerning” is broad. Webster's first definition of “concerning” is “relating to.” Webster's Third New Int'l Dictionary 470 (2002). Previously, this Court has consistently interpreted the phrase “relates to” as being broad, particularly with respect to PIA exceptions. City of San Antonio v. Abbott, 432 S.W.3d 429, 432 (Tex. App.—Austin 2014, pet. denied) (“In ordinary use, the phrase ‘relates to’ is very broad. The Legislature's use of the phrase, ‘information that ․ relates to a motor vehicle accident’ reported under Chapter 550, has the effect of broadening the scope of Section 550.065 to render more than the actual accident reports confidential.”); Texas Dep't of Pub. Safety v. Abbott, 310 S.W.3d 670, 674-75 (Tex. App.—Austin 2010, no pet.) (“The use of the term ‘relates to’ has the effect of broadening the scope of section 418.182 to shield more information than just the specifications, operating procedures, and locations.”). Consequently, I would interpret the synonymous term “concerning” similarly, concluding that the term, as used in Section 12.003, broadens protection from disclosure beyond information that individually identifies persons applying for or receiving assistance to include the type of claim-specific information presented by the facts of this case.
The statutory context of the text also supports a broader interpretation than that articulated by the majority. In particular, Section 12.003 is a penal provision, not only prohibiting disclosure of information concerning applicants and recipients, but also making disclosure a criminal offense (Class A misdemeanor). See Tex. Hum. Res. Code § 12.001-.003. In addition, the statute prohibits a broad range of misuse, as it proscribes solicitation, receipt, or use of protected information as well as authorization, knowing permission, participation in, or acquiescence in misuse of the information. See id. Information is protected whether it is derived directly or indirectly from the Commission's records, papers, files, or communications. See id. Thus, viewed in context, a broader reading of “any information concerning” in Section 12.003 comports with the statute's prohibition of any use of information that is derived from the Commission in any way, other than for program purposes, with penal consequences for violations.
Finally, if the Legislature had intended that “any information concerning” mean only that information that is individual to or that identifies the claimant or applicant, it could have expressly indicated that intention in the statute's plain language, as it has done elsewhere. For instance, the Government Code establishes the confidentiality of records of the Employees Retirement System of Texas. See Tex. Gov't Code § 855.115. Specifically, subject to certain enumerated exceptions, “[i]nformation contained in records that are in the custody of the retirement system concerning an individual member, retiree, annuitant, or beneficiary is confidential under Section 552.101, and may not be disclosed in a form identifiable with a specific individual ․” Id. § 855.115(a) (emphasis added). Similarly, the Health and Safety Code makes certain information in Texas's immunization registry confidential. It provides that “information that individually identifies an individual that is received by the department for the immunization registry is confidential and may be used by the department for registry purposes only,” and disclosure of “the individually identifiable information of an individual” is prohibited. Tex. Health & Safety Code § 161.0073 (emphasis added). Finally, the Occupations Code expressly delineates between confidential individually-identifying information and non-confidential information:
(b) Confidential information that is acquired by the board and that includes identifying information of an individual or health care provider is privileged and may not be disclosed to any person. Information that may not be disclosed under this subsection includes:
(1) the name and address of a patient or a member of the patient's family; and
(2) the identity of a health care provider that provided any services to the patient or a member of the patient's family.
* * *
(d) Information is not confidential under this section if the information is:
(1) general information that cannot be connected with any specific individual, case, or health care provider; and
(2) presented as aggregate statistical information that describes a single data point.
Tex. Occ. Code § 258.208 (emphasis added). Thus, if the Legislature had intended to protect only information identifying persons applying for or receiving assistance under Section 12.003, it could have done so explicitly, and we must assume that it would have done so. See City of Rockwall v. Hughes, 246 S.W.3d 621, 628 (Tex. 2008) (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“It is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose ․ [and] we believe every word excluded from a statute must also be presumed to have been excluded for a purpose.”)); City of San Antonio, 432 S.W.3d at 433 (“The Legislature used unambiguous language ․ Had the Legislature intended only [certain information] to be confidential, it would have said so.” (citations omitted)); Texas Dep't of Pub. Safety, 310 S.W.3d at 673. Instead, it used the broad phrase “any information concerning,” which I would conclude does include the requested information at issue in this case.
The majority also posits that a broader interpretation of Section 12.003 would lead to an absurd result of denying the public access to any information related to claims for Medicaid reimbursement. I disagree that this result would be the inevitable outcome of such an interpretation. In the context of the specific request at issue and the responsive data presented to us in the representative sample, the language of Section 12.003 compels the conclusion that the Legislature intended to protect the requested information that discloses the what, by-whom, where, when, why, and what-next of each medical procedure received by a person applying for or receiving assistance. However, I would not conclude that all Medicaid claim-level information is inaccessible. Certain data contained within the sample provided, such as amount billed and amount paid, certainly have more attenuated connections to persons applying for or receiving assistance than the date of service and procedure code, which may include a diagnosis and treatment plan. But that question is not before this Court today. Based on the specific request and format of the responsive information presented by this case, I cannot conclude that the information must be disclosed. Nor do I see any absurdity in protecting this information. See Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637-38 (Tex. 2010) (“[W]e do not see how it is an absurdity to construe this clear statutory language to mean what it says.”); City of San Antonio, 432 S.W.3d at 433 (plain meaning of statutory text controls unless “the absurd result or contrary intention is apparent from an application of the plain meaning of the statute's language” (citations omitted)). While I certainly recognize that the PIA must be construed liberally in favor of disclosure, we cannot construe so liberally as to ignore the plain meaning of the statute's text and its context. See Public Util. Comm'n of Tex. v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (“[W]hen the Legislature has spoken on a subject, its determination is binding upon the courts unless the Legislature has exceeded its constitutional authority. ․ The courts are not free to thwart the plain intention of the Legislature expressed in a law that is constitutional.” (citations omitted)).
For the foregoing reasons, I would affirm the trial court's judgment that the requested information is protected by Section 12.003. Accordingly, I respectfully dissent.
1. We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,661 (Tex. 2005). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).
Jeff Rose, Chief Justice
Dissenting Opinion by Justice Bourland