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
   ═══════════════════════════════════════

      JUSTICE BUSBY, joined by Justice Lehrmann, dissenting.

      Recognizing that “government is the servant and not the master
of the people,” the Legislature has made it “the policy of this state that
each person is entitled, unless otherwise expressly provided by law, at
all times to complete information about the affairs of government and
the official acts of public officials and employees.” TEX. GOV’T CODE
§ 552.001(a).   The Public Information Act generally obligates state
agencies to disclose information prepared in connection with official
business promptly upon request, limits agencies’ ability to make
follow-up inquiries of requestors, and requires an agency attempting to
withhold responsive information based on an exception to seek an
opinion from the Attorney General within ten business days after
receiving the request. Id. §§ 552.002, .021, .221(a), .222, .301. The
Legislature has directed the courts to construe these provisions “to
implement this [complete-information] policy” and “in favor of granting
a request for information.” Id. § 552.001(a), (b).
      Yet today, the Court excuses a state agency’s untimely attempt to
withhold responsive information produced in connection with official
business, reasoning that the agency reset its ten-business-day deadline
by asking the requestor whether it was seeking confidential
information. This approach is error for three separate and independent
reasons.
      First, the Court fails to assess the agency’s follow-up inquiry in
light of the actual dispute in this case. One of the few permissible
agency inquiries is to “discuss with the requestor how the scope of a
request [for a large amount of information] might be narrowed.” Id.
§ 552.222(b).   Here, the agency asked the requestor “whether your
request is seeking confidential information.” But the agency does not
contend that any responsive documents are confidential.       Thus, its
question about confidentiality could not initiate a discussion about how
the scope of this particular request might be narrowed.
      The only basis on which the agency sought to withhold documents
is the agency memorandum exception. That exception does not label
memoranda confidential; it makes their disclosure optional. See Univ.
of Tex. at Austin v. GateHouse Media Tex. Holdings II, Inc., 711 S.W.3d
655, 658 (Tex. 2024) (explaining that “confidential information that is
prohibited from disclosure” and “information excepted from mandatory




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(but not voluntary) disclosure” are “distinct categories” under the Act);
see also TEX. GOV’T CODE § 552.111 (providing that memoranda are
“excepted from the [mandatory disclosure] requirements of Section
552.021”). Because the agency’s irrelevant inquiry about confidentiality
would not have narrowed the information it “might have to produce or
contest,” as the Court contends (ante at 6), that inquiry was prohibited
by the Act. See TEX. GOV’T CODE § 552.222(a).
      Second, the Court fails to give effect to the statutory requirement
that a permissible inquiry must seek to “narrow[]” the “scope of a
request.”     Id. § 552.222(b).   Even if this dispute really were about
whether some responsive information is confidential under the Act, a
requestor is not entitled to receive confidential information.         Id.
§ 552.101. Thus, an agency asking the requestor whether the scope of
its request includes confidential information is essentially asking
whether the requestor wants information it cannot have.           Such a
seemingly nonsensical question is not a “narrowing” inquiry because the
answer will not alter the universe of documents the requestor can expect
to receive.     Nor will a requestor typically have any idea whether
responsive documents it has not seen are confidential, which makes the
question difficult, if not impossible, to answer.
      Although the agency’s question regarding confidentiality had no
impact on the scope of the request, it hints at a meaningful question
from a process perspective. If an agency determines that responsive
documents are confidential, it cannot withhold those documents unless
the Attorney General agrees after review, which takes additional time.
Id. §§ 552.301, .306. As the Court rightly points out, the Legislature has




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allowed a requestor who wants a response quickly to choose a more
abbreviated process.       Specifically, the Act authorizes a public
information request form that asks, as part of the request, whether the
requestor wishes to exclude information that the agency determines is
confidential or excepted from disclosure.1
       Thus, the Legislature knows how to authorize a procedural
inquiry into whether the requestor wants the agency rather than the
Attorney General to have the final say on confidentiality, and it chose to
do so only as part of the “request form” while prohibiting inquiries
following a request except on a few other matters.             Compare id.
§ 552.222 with id. § 552.235(a).2 The process question of whom the
requestor selects as the ultimate decisionmaker on confidentiality—the
agency or the Attorney General—may not be asked following a request
because it does not address “what information is requested” or “how the
scope of [the] request might be narrowed.” Id. § 552.222(b) (emphases



       1 See TEX. GOV’T CODE § 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.” (emphasis added)).
       The italicized language was missing from the agency’s question to the
requestor here. Without such language, as discussed above, the question is
nonsensical and difficult to answer. But when such language is included in the
request form, the procedural purpose of the question becomes clear: do you
want the Attorney General to review the agency’s decision on confidentiality?
       2 The Court implies that this plain-language reading of the statutes

results in a conflict, but it does not explain why. Nor can it: there is no
inconsistency in permitting an action at an earlier stage of an administrative
process while prohibiting it at a later stage.




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added).   The Attorney General might or might not agree with the
agency’s determination that particular documents responsive to the
request should be withheld as confidential, but that potential
disagreement is not relevant to the scope of the request itself. And in
any event, there was no way for the parties to know at the time of the
agency’s inquiry whether selecting the agency or the Attorney General
would result in “more documents” or “fewer documents” being provided.
      It is not hard to understand why the Legislature limited
post-request inquiries in this manner: allowing agencies to ask lots of
follow-up questions would deter, burden, and delay the public’s exercise
of its right to know what its agents are doing with public money. Courts
may not second-guess these policy choices embodied in the Act’s plain
text by asserting that they “can’t be right.” Ante at 10.
      Third, the Court restarts the mandatory ten-business-day
deadline to seek an Attorney General opinion even though the Act
makes clear that the period starts when the request is received. See
TEX. GOV’T CODE § 552.301(b) (“The governmental body must ask for the
attorney general’s decision and state the specific exceptions that apply
within a reasonable time but not later than the 10th business day after
the date of receiving the written request.” (emphases added)). The Act
prioritizes swift action throughout, generally requiring agencies and the
Attorney General to respond “promptly” or “without delay,” imposing
short deadlines for them to take particular actions, and allowing them
to “extend” a deadline by following clear procedures in only a few




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situations not applicable here.3       Importantly, the Act is not silent
regarding the consequence of failing to seek an opinion timely: it
specifies that the requested information “is presumed to be subject to
required public disclosure and must be released unless there is a
compelling reason to withhold the information.” Id. § 552.302 (emphasis
added); see Image API, LLC v. Young, 691 S.W.3d 831, 843 (Tex. 2024)
(explaining that “when an agency fails to comply with a statutory duty,”
courts impose the “consequences that are explicit in the statutory text”).
      The Court concludes, however, that restarting the clock follows
from City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010). I agree with
the Attorney General that City of Dallas does not apply. According to
our opinion in that case, the ten-day deadline runs from the date a
request is clarified or narrowed when “the circumstances are that a
request is so unclear or overbroad that a government entity, acting in
good faith, cannot understand what is requested” or cannot “accurately
identify and locate the requested items.” Id. at 386, 387. That seems
like a sensible policy. But no one seriously contends in this Court that
the agency could not understand the request—which the Court aptly
characterizes as “pellucid,” ante at 8—or identify responsive documents.
I would not extend City of Dallas beyond these categories given its lack
of support in the Act’s text.
      The Court notes that a request is deemed withdrawn if the agency
does not receive a response to a proper narrowing inquiry within
sixty-one days. See TEX. GOV’T CODE § 552.222(d). And it worries that



      3 E.g., TEX. GOV’T CODE §§ 552.221(a), (d), .231(c), .2325(b), .306(a).




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unless the ten-day period to seek an opinion restarts when the response
is received, the Attorney General might waste resources evaluating a
request that could change or disappear.        Ante at 7.   That worry is
unfounded in this case. The agency sent its request on the first of its
ten business days, and the requestor responded within minutes. Thus,
the agency lost almost none of its ten-business-day window to gather
responsive documents and decide whether to request an Attorney
General opinion, and none of the Attorney General’s work was wasted.
      When a statute requires a party to act within a certain time
period and the party is able to act within that period, courts are not free
to ignore the legislative command and give the party more time in which
to act. For example, when a party is prevented from bringing suit for
part of a limitations period but can still do so by exercising diligence
before the period ends, it cannot rely on equitable tolling. See In re
United Servs. Auto. Ass’n, 307 S.W.3d 299, 311 (Tex. 2010); see also
Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622,
629-630 (Tex. 2023) (rejecting broad “legal impediment” tolling).
Agencies seeking to withhold public information should not get special
treatment unavailable to any other party, particularly in the face of
tight timelines and stated policies favoring disclosure.
                              *     *      *
      For each of these three independent reasons, the agency cannot
rely on its question about confidential information to extend the
ten-business-day deadline to seek an Attorney General opinion.
Although I agree with the Court that the mailbox rule applies, that




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holding alone is insufficient to save the agency’s opinion request from
being untimely.4 I respectfully dissent.



                                            J. Brett Busby
                                            Justice

OPINION FILED: April 17, 2026




       4  The agency does raise a third issue, contending that the court of
appeals erred in concluding that July 5, 2019 (a non-holiday weekday) counted
as a business day even though the agency was closed. In my judgment, this
issue is not important to our jurisprudence: it will not recur because the statute
has since been amended to allow agencies to designate days on which their
offices are closed as nonbusiness days. See Act of May 26, 2023, 88th Leg.,
R.S., ch. 847, § 1, 2023 Tex. Gen. Laws 2633, 2634 (codified at TEX. GOV’T CODE
§ 552.0031(f)). Thus, like the Court but for a different reason, I decline to
review this issue. Cf. TEX. R. APP. P. 56.1(b)(1); Walker v. Baptist St. Anthony’s
Hosp., 703 S.W.3d 339, 345 & nn.3-4 (Tex. 2024).




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