Texas Commission on Environmental Quality v. Ken Paxton, Attorney General of Texas, and Sierra Club

Supreme Court of Texas
                           ══════════
                            No. 23-0244
                           ══════════

          Texas Commission on Environmental Quality,
                             Petitioner,

                                  v.

    Ken Paxton, Attorney General of Texas, and Sierra Club,
                            Respondents

   ═══════════════════════════════════════
              On Petition for Review from the
       Court of Appeals for the Third District of Texas
   ═══════════════════════════════════════

                     Argued September 9, 2025

      JUSTICE SULLIVAN delivered the opinion of the Court, in which
Chief Justice Blacklock, Justice Devine, Justice Bland, Justice Huddle,
Justice Young, and Justice Hawkins joined.

     JUSTICE BUSBY filed a dissenting opinion, in which Justice
Lehrmann joined.

      The Office of the Attorney General decided that the Texas
Commission on Environmental Quality blew a deadline under the Public
Information Act back in 2019. Throughout the seven years of litigation
that ensued, OAG has disavowed its own decision—and rightly so.
“Wisdom too often never comes, and so one ought not to reject it merely
because it comes late.” Henslee v. Union Planters Nat’l Bank & Tr. Co.,
335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting). We reverse and
remand for further proceedings.
                                    I
      On July 1, 2019, TCEQ received a written request from Sierra
Club under the Public Information Act. The three-page request sought
a broad swath of records relating to a recently issued Development
Support Document entitled “Ethylene Oxide Carcinogenic Dose-
Response Assessment.” In response, TCEQ sent the following email to
Sierra Club on July 2, 2019:
      We are in receipt of your public information request . . . .

      Please clarify whether your request is seeking confidential
      information. If you request confidential information, we
      will need to seek an Attorney General opinion for the
      requested confidential material or information. It may
      take up to 60 days for the Attorney General to reach a
      determination on our request.

      Please let me know how you would like to proceed.

Within minutes, Sierra Club answered that it “would like to receive all
responsive information that TCEQ may believe is confidential, but that
must be released under the . . . Public Information Act.”
      According to TCEQ, many of the requested documents were
protected   against   disclosure   by   the   Public   Information   Act’s
deliberative-process exception. See Tex. Gov’t Code § 552.111; City of
Garland v. Dall. Morning News, 22 S.W.3d 351 (Tex. 2000). And so, in
a letter to OAG’s Open Records Division dated July 17, 2019, TCEQ
“ask[ed] for a decision from the attorney general about whether the




                                    2
information is within that exception,” such that it could withhold the
contested documents from Sierra Club. Tex. Gov’t Code § 552.301(a).
      TCEQ’s letter to OAG was due “not later than the 10th business
day after the date of receiving [Sierra Club’s] request.” Id. § 552.301(b).
In an opinion of September 23, 2019, OAG decided that TCEQ was two
days too late. In counting up business days, OAG excluded the date the
public-information request was received (July 1); the Independence Day
holiday (July 4); and weekends (July 6, 7, 13, and 14). That calculation
put the ten-business-day deadline at July 16, whereas TCEQ’s letter
was not actually received by OAG until July 18.
      A blown deadline meant that “the information requested [was]
presumed to be subject to required public disclosure,” and had to be
released absent “a compelling reason to withhold the information.” Id.
§ 552.302. OAG’s opinion went on to decide that the deliberative-process
privilege invoked by TCEQ was not sufficiently compelling. As a result,
TCEQ faced the prospect of producing over 6,000 pages of documents to
Sierra Club.
      A week later, TCEQ sent OAG a request for correction as to
timeliness based on three pieces of information that weren’t in its initial
letter. First, TCEQ argued that Friday, July 5 wasn’t a business day
because the agency was closed in observance of Independence Day.
TCEQ admitted that, “due to a clerical oversight, the referral letter did
not include a clear statement informing the OAG that the agency was
closed on July 4th and 5th.” Second, TCEQ attached its July 2 emails
with Sierra Club and noted that it “could have, but did not choose to rely
on [that] clarification, which would have provided the agency an




                                    3
additional day to submit its referral” by resetting the ten-business-day
period. Third, TCEQ attached affidavits showing that its initial letter
was placed in the interagency mail on July 17, thereby establishing its
submission as of that date. OAG declined to reconsider its opinion.
      TCEQ sued OAG under the Public Information Act for a
declaratory judgment allowing it to withhold the contested documents.
See id. § 552.324. Sierra Club intervened to seek a writ of mandamus
compelling disclosure. See id. § 552.321. OAG conceded, based on the
new information in the request for correction, that its own opinion was
wrong and that TCEQ had met the ten-business-day deadline. The
district court nevertheless granted summary judgment for Sierra Club,
ordering TCEQ to produce 6,414 pages of documents.
      The court of appeals affirmed, holding that TCEQ’s request for an
OAG decision was untimely. See 712 S.W.3d 630, 637–40 (Tex. App.—
Austin 2022). It rejected the argument, put forth by both TCEQ and
OAG, that July 5, 2019, was not a “business day” within the meaning of
the Act because TCEQ was closed. Id. at 637–39 (construing Tex. Gov’t
Code § 552.301(b)). In addition, the court of appeals held that the ten-
business-day clock was not reset by the email exchange on July 2, 2019.
Id. at 639–40.
      Before this Court, OAG (but not Sierra Club) has confessed error
in the judgment below. We granted TCEQ’s petition for review.




                                   4
                                       II
       The parties dispute three issues. First, did TCEQ’s emails with
Sierra Club reset the ten-business-day clock? 1 Second, was July 5, 2019
a business day? Third, does TCEQ get the benefit of the “mailbox rule”?
We needn’t resolve all three issues. If TCEQ wins on any two, then its
letter to OAG was timely. If Sierra Club wins any two, then the letter
was untimely. 2 We score the results of this best-of-three series below. 3


       1   Sierra Club says TCEQ didn’t preserve this issue. We disagree.
TCEQ’s third amended motion for summary judgment used the term
“clarification request,” but substantively invoked the narrowing exception.
OAG also discussed the narrowing exception in its summary-judgment reply,
removing any doubt as to whether the issue was properly before the court.
Still, Sierra Club argues that TCEQ didn’t preserve the issue because it wasn’t
included in the letter to OAG. But the preservation rules that apply to court
proceedings don’t apply to OAG’s. True, the Public Information Act declares
that a governmental body may only raise exceptions in court that were
“properly raised before the attorney general in connection with its request.”
Tex. Gov’t Code § 552.326. But this restriction concerns substantive exceptions
to disclosure, not matters of timing. We can therefore assume that timeliness
arguments needn’t be preserved before OAG.
       2 For the curious, here’s the math:    TCEQ’s letter to OAG was due “not
later than the 10th business day after the date of receiving [Sierra Club’s]
request.” Tex. Gov’t Code § 552.301(b). In an opinion of September 23, 2019,
OAG said TCEQ was two days too late. Each of TCEQ’s issues would yield an
extra day: (1) July 2 (if that’s when the timer was reset); (2) July 5 (if that
wasn’t a “business day”); and (3) July 17 (if that’s when TCEQ’s letter was
“received” thanks to the mailbox rule). If TCEQ wins on all three issues, then
it actually sent its letter one day early; to win reversal, it just needs two.
       3 In concluding that TCEQ lacked “a compelling reason to withhold the

information,” Tex. Gov’t Code § 552.302, the court of appeals “decline[d] to hold
that the deliberative process privilege is on equal footing with the attorney-
client privilege such that its application constitutes a compelling reason,” 712
S.W.3d at 642. While this approach strikes us as doubtful, to say the least, we
needn’t resolve it because another error provides complete relief. So future
courts—including the Third Court of Appeals—remain free to assess the
deliberative-process privilege unconstrained by the holding below.




                                       5
                                Game 1
      According to our opinion in City of Dallas v. Abbott, 304 S.W.3d
380 (Tex. 2010), TCEQ’s shot clock didn’t start running until July 2,
2019. That’s because TCEQ sent Sierra Club one of the few follow-ups
that the Public Information Act allows:
      If what information is requested is unclear to the
      governmental body, the governmental body may ask the
      requestor to clarify the request. If a large amount of
      information has been requested, the governmental body
      may discuss with the requestor how the scope of a request
      might be narrowed, but the governmental body may not
      inquire into the purpose for which information will be used.

Tex. Gov’t Code § 552.222(b); see also id. § 552.222(a) (restricting a
governmental body’s ability to “make an inquiry of a requestor”).
      Sierra Club’s public-information request of July 1, which spanned
three pages, swept up “a large amount of information.” Id. § 552.222(b).
And TCEQ’s email of July 2 attempted to “narrow[]” what it might have
to produce or contest. Id. Indeed, 6,414 pages of documents arguably
protected by the deliberative-process privilege would’ve been off the
table had Sierra Club agreed not to seek confidential information. It
was worth a shot; some requestors prefer disclosure that is narrower but
quicker, as the Legislature itself has recognized. See id. § 552.235(a)
(“The attorney general shall create a public information request form
that provides a requestor the option of excluding from a request
information that the governmental body determines is: (1) confidential;
or (2) subject to an exception to disclosure that the governmental body
would assert if the information were subject to the request.”).




                                    6
      On July 2, however, Sierra Club declined to narrow its public-
information request in this way. Fair enough. That means the next day,
July 3, was the first of TCEQ’s ten business days. This result follows
from City of Dallas, in which we held “that the timeliness of a request
for an attorney general opinion is measured from the date a party
seeking public information responds to a governmental body’s good-faith
request for clarification or narrowing of an unclear or overbroad
information request.” 304 S.W.3d at 381; see also id. at 384.
      Our holding in City of Dallas makes sense within the context of
the Public Information Act’s deadlines.      Without that holding, a
governmental body would have to seek an OAG opinion by the tenth
business day even if it hadn’t gotten a response to a request for
clarification or narrowing. OAG would then have up to 55 business days
to render a decision. Tex. Gov’t Code § 552.306(a). During that period,
however, the underlying public-information request could be deemed
withdrawn: “If by the 61st day after the date a governmental body sends
a written request for clarification or discussion . . . the governmental
body . . . does not receive a written response from the requestor, the
underlying request for public information is considered to have been
withdrawn by the requestor.” Id. § 552.222(d). It’s hard to believe the
Legislature would squander scarce resources by forcing OAG to begin
evaluating a public-information request that might change in scope or
disappear altogether.
      The court of appeals gave two reasons for refusing to reset the
ten-business-day period under City of Dallas. Neither is sound. First,
the opinion below asserted “that it was clear to [TCEQ] what




                                   7
information the Sierra Club was requesting.” 712 S.W.3d at 640. Sure
it was—but there are two sentences in the relevant subsection of the
Act, so TCEQ could try to clarify or narrow the public-information
request. See Tex. Gov’t Code § 552.222(b); cf. Loc. Union 1261 v. Fed.
Mine Safety & Health Rev. Comm’n, 917 F.2d 42, 45 (D.C. Cir. 1990)
(R.B. Ginsburg, J.) (“If the first rule of statutory construction is ‘Read,’
the second rule is ‘Read On!’ ”). Sierra Club’s request clearly covered
thousands of pages arguably protected by the deliberative-process
privilege. This pellucid breadth is what prompted TCEQ’s attempt, the
good-faith nature of which is uncontested here, to “discuss with the
requestor how the scope of a request might be narrowed.” Tex. Gov’t
Code § 552.222(b). The clock started ticking only after Sierra Club
rejected TCEQ’s “good-faith request for . . . narrowing of an . . .
overbroad information request.” City of Dallas, 304 S.W.3d at 381.
       Second, the court of appeals faulted TCEQ for omitting a
statutorily required warning from its July 2 email. See 712 S.W.3d at
640.   As noted above, a public-information request will be deemed
withdrawn if the requestor doesn’t respond within 61 days to a
governmental body’s attempt at clarification or narrowing. Tex. Gov’t
Code § 552.222(d).    To put the requestor on notice that delay can
foreclose transparency, the governmental body “must include a
statement as to the consequences of the failure by the requestor to
timely respond to the request for clarification, discussion, or additional
information.” Id. § 552.222(e).
       Regrettably, TCEQ’s July 2 email contained no such statement.
“[W]hen an agency fails to comply with a statutory duty,” however, “the




                                     8
Judiciary may impose only consequences that are explicit in the
statutory text or logically necessary to accomplish the statute’s
purpose.” Image API, LLC v. Young, 691 S.W.3d 831, 843 (Tex. 2024)
(internal quotation marks omitted).       The Public Information Act
expressly prescribes consequences for some violations, but not for this
one. See, e.g., Tex. Att’y Gen. OR2016-27766, 2016 WL 7466465, at *2
(Dec. 15, 2016) (contrasting Tex. Gov’t Code § 552.222(e) with Tex. Gov’t
Code § 552.302). And logic hardly dictates that we pretend like TCEQ’s
good-faith narrowing request doesn’t exist.      Instead, the logically
necessary consequence of TCEQ’s omission is that the public-
information request wouldn’t have been considered withdrawn had
Sierra Club waited 61 days (rather than a few minutes) to respond.
      The dissent reasons that TCEQ’s email could not have been an
attempt to “narrow” the scope of the request because confidential
information is already exempt from disclosure. On this view, TCEQ was
asking Sierra Club whether it wanted information it couldn’t get—a
nonsensical inquiry. But TCEQ’s inquiry wasn’t nonsensical. As the
rest of the email makes clear, TCEQ was not asking whether Sierra Club
wanted information that was in fact confidential. Instead, TCEQ asked
whether Sierra Club would be satisfied with excluding documents that
TCEQ believed were confidential, or whether it would instead require
the Attorney General to agree that the documents should be withheld.
Public-information requests are a volume business, and Sierra Club is a
frequent flyer, so it understood this shorthand well. In fact, TCEQ’s
email made this point explicit: “If you request confidential information,
we will need to seek an Attorney General opinion for the requested




                                   9
confidential material or information.” In other words, TCEQ told Sierra
Club that it could have more documents slowly, or fewer documents
quickly. Sierra Club chose the former, but its request would’ve been
narrowed had it chosen the latter. TCEQ’s email therefore was an effort
to “narrow[]” the “scope of a request,” Tex. Gov’t Code § 552.222(a),
albeit an unsuccessful one.
      In fact, the Legislature contemplated that agencies would do
exactly what TCEQ did here. The Act requires that OAG create a
standard public-information form for agencies to use. That form must
ask, among other things, whether the requestor is seeking information
“that the governmental body determines is . . . confidential.”        Id.
§ 552.235. So while the dissent thinks it’s nonsensical for agencies to
ask whether requestors seek confidential information, the Legislature
disagrees. Indeed, the Legislature requires that agencies be enabled to
ask that question on a boilerplate form. The dissent would therefore
require agencies to sometimes ask a question that the Act forbids them
from asking. That can’t be right. See, e.g., Harris Cnty. Appraisal Dist.
v. Tex. Workforce Comm’n, 519 S.W.3d 113, 122 (Tex. 2017) (“If two
statutes are in conflict, ‘we will construe the different provisions in a
way that harmonizes rather than conflicts.’ ” (quoting In re Mem’l
Hermann Hosp. Sys., 464 S.W.3d 686, 716 (Tex. 2015))).
                                Game 2
      As explained above, July 3, 2019, was the first of TCEQ’s ten
business days. Sierra Club argues that July 5 was the next business
day, even though TCEQ was closed on that date (a Friday) for




                                   10
Independence Day. If Sierra Club is right, then TCEQ’s ten-business-
day deadline for requesting an OAG opinion was July 17.
      Under the Public Information Act, that deadline “is met in a
timely fashion if . . . the agency provides evidence sufficient to establish
that the request . . . was deposited in the interagency mail within that
period.” Tex. Gov’t Code § 552.308(b). TCEQ’s evidence shows that its
letter requesting an OAG opinion was deposited in the interagency mail
on July 17.
      On September 30, 2019, TCEQ responded to OAG’s y’all-blew-the-
deadline opinion by sending a request for correction. Attached to that
request were a pair of relevant affidavits. In one, a legal assistant at
TCEQ “certif[ied] that on July 17, 2019, . . . [she] deposited into TCEQ’s
interagency outgoing mailbox correspondence addressed to the Office of
the Attorney General requesting a formal opinion related to TCEQ PIR
No. 19-48291,” which was the reference number for Sierra Club’s public-
information request. In the other, TCEQ’s supervisor of mail operations
declared: “All interagency mail is either received in the mailroom or
collected from each TCEQ division[’s] interagency outgoing mailbox at
the end of each business day by a mailroom employee and picked up the
next morning by the Comptroller Office’s TPASS Division for delivery.”
      With these affidavits, TCEQ got the benefit of the mailbox rule as
of July 17. Sierra Club’s two-page argument to the contrary is not well
taken. After correctly noting that “TCEQ raised the mailbox rule only
after the Attorney General had already ruled,” Sierra Club incorrectly
contends that the Public Information Act “does not allow TCEQ to
submit belated evidence or to seek reconsideration of an Attorney




                                    11
General ruling.”     Respondent’s Br. 40–41 (citing Tex. Gov’t Code
§ 552.301(f )); accord Off. of Att’y Gen., Public Information Act Handbook
39 (2024) (“Section 552.301(f ) . . . precludes a governmental body from
asking for reconsideration of an attorney general decision that
concluded the governmental body must release information.”).
       The Act says no such thing. The provision on which Sierra Club
relies reads in its entirety as follows:
       A governmental body must release the requested
       information and is prohibited from asking for a decision
       from the attorney general about whether information
       requested under this chapter is within an exception under
       Subchapter C if:
          (1)    the governmental body has previously requested
                 and received a determination from the attorney
                 general concerning the precise information at
                 issue in a pending request; and
          (2)    the attorney general or a court determined that
                 the information is public information under this
                 chapter that is not excepted by Subchapter C.
Tex. Gov’t Code § 552.301(f ).
       This statutory text puts in place something like collateral
estoppel, not a ban on asking OAG to reconsider an opinion it just issued.
Cf. First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712
S.W.3d 75, 85 (Tex. 2025) (“Collateral estoppel . . . bars parties from
relitigating identical issues of fact or law in multiple lawsuits.”). Its
“prohibit[ion]” works before a governmental body has “ask[ed] for a
decision from the attorney general.” Tex. Gov’t Code § 552.301(f ). If, by
that point, disclosure of “the precise information at issue” has been
decreed with respect to a “previous[]” public-information request, then
the governmental body can’t ask for a second decision. Id.




                                     12
        That’s not what TCEQ was doing in its letter of September 30,
2019.    Months earlier, it had requested an OAG opinion about the
Ethylene Oxide Carcinogenic Dose-Response Assessment, and that lone
request was still pending with OAG. Before suing OAG for declaratory
relief on October 4, 2019, TCEQ provided information with which to
correct an opinion that OAG itself now concedes was wrong. It can’t be
said that, once OAG called for disclosure, TCEQ was suddenly
“prohibited from asking for a decision” that it had already requested.
        To be sure, TCEQ could’ve saved everyone a great deal of time
and trouble by referring to the interagency mailbox in its initial letter.
A little boilerplate would’ve gone a long way.              But this isn’t an
Administrative Procedure Act case, in which “the court’s review is
limited to questions of law” that must be “determined based solely on
the record of proceedings compiled in and by the agency and the evidence
contained in such record.” Cornyn v. City of Garland, 994 S.W.2d 258,
263–64 (Tex. App.—Austin 1999, no pet.) (citing Tex. Gov’t Code
§§ 2001.174, .175(e)). 4 Instead, “declaratory-judgment actions [under
the Public Information Act] are brought, heard, and determined in the
same manner as civil actions generally, based on . . . the evidence


        4 The Public Information Act does impose its own unique exhaustion

requirement—it just doesn’t apply here. “[T]he only exceptions to required
disclosure . . . that a governmental body may raise in a suit . . . are exceptions
that the governmental body properly raised before the attorney general . . . .”
Tex. Gov’t Code § 552.326; see also City of Dallas v. Paxton, 721 S.W.3d 60, 73
(Tex. App.—15th Dist. 2025, no pet.) (“Just four months after Cornyn issued,
the Legislature did in fact impose exactly the kinds of limitations to what
issues could be ‘properly raised’ in a suit against the Attorney General.”). The
exception at issue in TCEQ’s declaratory-judgment action—the deliberative-
process privilege—is the same exception as in its initial letter to OAG.




                                       13
received in court.” Cornyn, 994 S.W.2d at 264. The affidavits from
TCEQ’s legal assistant and supervisor of mail operations, both of which
can be found in the summary-judgment record, “provide[] evidence
sufficient to establish that the request . . . was deposited in the
interagency mail” in a timely fashion. Tex. Gov’t Code § 552.308(b).
                                Game 3
      Because TCEQ won the first two games, we don’t need to decide
whether July 5 was a business day—even if it was, that’d just mean
TCEQ’s mailbox-rule submission came right on time. That is perhaps
for the best, because deciding this issue would be exceedingly complex.
When Sierra Club sent its request, the term “business day” was
undefined. The court of appeals concluded that July 5 didn’t count as
one because it construed “business day” to exclude only Saturdays,
Sundays, and legal holidays, not days that the agency chose to close its
offices. See 712 S.W.3d at 639. In apparent response to this holding,
the Legislature amended the statute to define “business day,” giving
agencies the authority to “designate a day on which the governmental
body’s administrative offices are closed or operating with minimum
staffing as a nonbusiness day.” Act of June 13, 2023, 88th Leg., R.S.,
ch. 847, § 1, 2023 Tex. Gen. Laws 2633, 2633–34 (codified at Tex. Gov’t
Code § 552.0031). Although other provisions of the underlying bill were
given only prospective effect by the Legislature, this new definition was
not among them. See id. §§ 13, 14.
      To decide whether to apply the 2023 definition to this circa-2019
case, we’d have to grapple with our Constitution’s prohibition against
“retroactive law[s].” Tex. Const. art. I, § 16.   “Over the years, this




                                   14
Court’s varied precedents on retroactivity came to resemble a tangled
wad of Christmas lights pulled from the attic after Thanksgiving.”
Hogan v. S. Methodist Univ., 688 S.W.3d 852, 857 (Tex. 2024) (citing
Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 138–45 (Tex.
2010)). Untangling that strand wouldn’t change the outcome here, so
we’ll just leave it be for now. See Abbott v. Harris County, 672 S.W.3d
1, 15 (Tex. 2023) (“Because we can avoid reaching these questions by
declining to resolve the parties’ disputes about the meaning and
constitutionality of [a statute] and instead resting our decision on other
grounds, we must do so.”); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003)
(“As a rule, we only decide constitutional questions when we cannot
resolve issues on nonconstitutional grounds.”).
      According to the dissent, the first two games actually result in a
1–1 tie. To function as a dissent, such that Sierra Club would win and
the judgment below would be affirmed, today’s separate opinion must
implicitly conclude both that the 2023 amendment doesn’t apply
retroactively, and that July 5 was a “business day” under the Public
Information Act as it read in 2019. If it instead called the third game in
TCEQ’s favor, such that TCEQ still wins reversal, then the separate
opinion would be a concurrence in the judgment rather than a dissent.
Understandably, though, the dissent doesn’t expend scarce judicial
resources and time by wrestling with the wadded Christmas lights and
interpreting a now-obsolete version of the Act.




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                             *        *      *
      Because TCEQ didn’t blow the ten-business-day deadline, we
reverse and remand for further proceedings.         The lower courts can
decide, in the first instance, whether TCEQ’s records are protected by
the deliberative-process privilege.



                                           James P. Sullivan
                                           Justice

OPINION DELIVERED: April 17, 2026




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