Opinion
13-22-00615-CV
08-24-2023
ALONZO DIEGO FULLER, Appellant, v. CITY OF WACO POLICE DEPARTMENT, Appellee.
On appeal from the 74th District Court of McLennan County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
DORI CONTRERAS Chief Justice
Appellant Alonzo Diego Fuller, pro se, challenges the trial court's summary judgment dismissing his suit against appellee City of Waco Police Department (Waco PD). By three issues, Fuller argues summary judgment was improper because (1) his claim has merit, (2) he was not afforded a full and fair opportunity to conduct discovery, and (3) there was a hearing pending at the time of the ruling. We affirm.
This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of the Texas Supreme Court. See Tex. Gov't Code Ann. § 73.001.
I. Background
Fuller filed a pro se "Petition for Writ of Mandamus Suit" in the trial court on March 3, 2022, seeking the release of certain government records pursuant to § 552.321 of the Texas Public Information Act. See Tex. Gov't Code Ann. § 552.321(a) ("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.").
Fuller asserted in his petition that he is the "Chief Legal Prison Consultant" for "iTeam Legal Solutions" and that his request "stems from questionable issues surrounding the arrest and conviction of George Brandon Chambers," an individual who is currently serving a sixty-year prison sentence for aggravated sexual assault. According to the petition, Fuller had requested police reports, the arrest warrant, and the probable cause affidavit related to Chambers's case, but the Waco City Secretary denied his request. Fuller argued that "Waco PD should be compelled to release redacted copies of the requested information" because such disclosure is required by law and the records are not exempt from disclosure.
Nothing in the record indicates that Fuller is a licensed attorney.
Identifying itself as the "respondent," the City of Waco (the City) filed an answer alleging the trial court lacked jurisdiction, generally denying Fuller's factual allegations, and asserting various affirmative defenses.
On October 28, 2022, the City filed a traditional motion for summary judgment, arguing it was entitled to judgment as a matter of law because (1) it did not "refuse[] to request an attorney general's decision as provided by Subchapter G" of government code chapter 255, and (2) it did not "refuse[] to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C" of that chapter. See id. Five exhibits were attached to the summary judgment motion: (1) Fuller's original records request addressed to the City; (2) an April 23, 2021 letter from a City attorney to the Office of the Texas Attorney General (OAG) asserting that the records requested by Fuller are exempt from disclosure and requesting a decision by the OAG on Fuller's request; (3) an April 23, 2021 letter from a City paralegal to Fuller explaining that a request for decision had been submitted to the OAG; (4) a June 4, 2021 letter from the OAG to a City attorney stating, "Upon review of your arguments and the submitted information, we conclude you must withhold the submitted information pursuant to [§] 552.101 of the Government Code in conjunction with [§] 261.201 of the Family Code"; and (5) an affidavit by the City paralegal attesting to the authenticity of the preceding exhibits.
According to the City Secretary's letter, the requested records are exempt from mandatory disclosure because they contain "information pertaining to abuse of a child." See Tex. Fam. Code Ann. § 261.201(a) (providing generally that "a report of alleged or suspected abuse or neglect" of a child made under family code chapter 261-along with "the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation" under that chapter-are confidential and are not subject to release under the Texas Public Information Act).
This letter stated that there are "two (2) pages of information" responsive to Fuller's request which are not exempt from disclosure, and it purported to include those pages as enclosures. However, those two pages do not appear in the summary judgment record, and Fuller denies having received them.
The appellate record does not contain any response to the summary judgment motion, nor does it contain any indication that a hearing was set on the motion. Without reference to the record, Fuller represents in his brief that, on October 19, 2022, the trial court administrator advised him via email that the judge "wanted . . . to set this on a [s]ubmission [d]ocket (no oral hearing)" and that, on October 26, 2022, the administrator advised him that a hearing had been set for December 16, 2022. No reporter's record of any hearing appears in the appellate record.
On November 29, 2022, the trial court signed a "Final Summary Judgment" stating that the City's summary judgment motion was "heard by submission" on that date, granting the motion, and providing that Fuller take nothing by way of his suit. This appeal followed.
II. Discussion
A. Standard of Review & Applicable Law
We review summary judgments de novo. Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Tex.R.Civ.P. 166a(b). A movant for traditional summary judgment has the burden to establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). "Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing." Tex.R.Civ.P. 166a(c). "Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Id.
If the movant's motion and summary judgment proof facially establish a right to judgment as a matter of law, then the burden shifts to the non-movant to raise a material fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex.R.Civ.P. 166a(c).
Pro se litigants are held to the same standards as licensed attorneys, and they must therefore comply with all applicable rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
B. Analysis
On appeal, Fuller argues that the City "should release redacted copies of the requested information" because it "does not consist of identifying information about the child victim." Citing Texas Department of Public Safety v. Gilbreath, Fuller argues that his mandamus action was proper, notwithstanding the fact that neither of the conditions set forth in government code § 552.321(a) were satisfied. See Tex. Gov't Code Ann. § 552.321(a) (providing that a requestor may file a suit for writ of mandamus compelling a governmental body to make information available only if the governmental body either (1) refused to request an OAG decision, or (2) refused to supply information the OAG determined is public information and not excepted from disclosure); Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ) ("[I]f the attorney general decides that the information is not a public record, the person seeking such information is not precluded from petitioning the court for a writ of mandamus. In such a case, the person may seek a judicial proceeding to determine whether the information is subject to disclosure."). Fuller also argues that the court abused its discretion by "prematurely rul[ing] against [him] knowing that there was a pending hearing scheduled for December 16, 2022," and "without affording [him] a fair opportunity to develop the record and address issues or concerns raised by the [City]." He contends that, "[a]t a minimum and before granting [the City]'s summary judgment motion," the trial court should have held a hearing to examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist, and/or "make an order specifying the facts that are established as a matter of law." See Tex. R. Civ. P. 166a(e).
Elsewhere in his appellate brief, Fuller summarily argues that the City failed to "timely notify [him] of its decision to seek an attorney general opinion"; failed to "provide him with a copy of [its] written request for a[n] attorney general's opinion"; and "failed to specify that the requested information is excepted from disclosure pursuant to either constitutional law, statutory law, or by judicial decision." He further contends that the trial court's judgment "is devoid of any guiding principles on how it ruled besides making a boilerplate conclusion dismissing the mandamus suit . . . ." These arguments are not supported by any analysis, authority, or record references. See Tex. R. App. P. 38.1(i). Accordingly, they are waived, and we do not address them.
In response, the City contends that all of Fuller's arguments on appeal are waived because he did not file any written response to its summary judgment motion. See Tex. R. Civ. P. 166a(c). We agree with the City. Fuller does not dispute that he was timely served with the City's summary judgment motion, nor does he dispute that he was timely notified that the trial court would hear the motion by submission on November 29, 2022, which is more than twenty-one days after the City filed its summary judgment motion and supporting evidence. See id.; see also Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (observing that due process requires "[n]otice of hearing or submission of a summary judgment motion" because "[t]he hearing date determines the time for response to the motion" and "without notice of hearing, the respondent cannot know when the response is due"). An oral hearing is not required. See Martin, 989 S.W.2d at 359 ("An oral hearing on a motion for summary judgment may be helpful to the parties and the court, just as oral argument is often helpful on appeal, but since oral testimony cannot be adduced in support of or opposition to a motion for summary judgment, an oral hearing is not mandatory."). Fuller did not move for a continuance, nor did he otherwise complain to the trial court about the timing of its ruling.
Finally, although Fuller asserts in his brief that a hearing "on [his] request to introduce evidence and argument" was scheduled for December 16, 2022, the record does not substantiate that assertion. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."); Gonzalez v. Villarreal, 251 S.W.3d 763, 777 (Tex. App.-Corpus Christi-Edinburg 2008, pet. dism'd) (noting that we may not consider documents not in the appellate record). In any event, at the summary judgment stage, evidence offered to create a fact issue must be filed and served prior to the summary judgment hearing, and no oral testimony may be taken at a hearing. See Tex. R. Civ. P. 166a(c).
For the foregoing reasons, we conclude that the trial court did not err in granting the City's summary judgment motion. We overrule Fuller's issues on appeal.
III. Conclusion
The trial court's judgment is affirmed.