Reporter’s claims for media pass and video streaming are moot says 3rd Court of Appeals

David Dewhurst et al v. AgendaWise, Inc., 03-14-00146-CV, (Tex. App. – Austin, November 25, 2014)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where a news agency sued members of the Texas Senate for access to their server room to install video streaming equipment and for a media pass.

This case stated when the Texas Tribune had equipment in the Senate server room that allowed it to stream unedited video feed of legislative proceedings on its website. AgendaWise, Inc. requested the same access but was denied. This denial came after AgendaWise’s application for a media pass was denied.  They sued Texas Senate officials, in their official capacities, under the Uniform Declaratory Judgment Act asserting the denial violated their freedom of speech and press, due course of law, and equal protection and sought to enjoin them from denying such access to the server room and to obtain a media pass. The state officials filed a plea to the jurisdiction based on sovereign immunity which the trial court denied and they appealed.

The court first went through the history of what AgendaWise was given access to and what it was not and the reasons cited as well as the fact the 2013-2014 legislative session had ended and the 2015-2016 had not yet begun. According to the officials, the Senate changed its procedures moving forward, would be streaming its own sessions and the Tribunal’s equipment had been removed. AgendaWise agreed that if that is the case, the claims may be moot and the court held it was in fact moot. The court then determined that only Charlie Green, in his official capacity as Chairman of the Texas House Committee on House Administration was a proper defendant because only he had the authority to grant or deny a media pass. As to Green, AgendaWise did not present any evident it was denied access or even applied for access to any committee meetings occurring in-between the 2013 and 2015 legislative sessions and granting any request would not resolve any live controversy. “Any judgment at this point granting AgendaWise its requested relief—that Hicks [the reporter] be issued a media pass—would have no ‘practical legal effect on a then-existing controversy.’ … Such a pass would expire by its own terms this year, and Hicks will need to apply for a media pass if so desired for the next session in any case.” (Internal citations omitted). So his claims for the 2013-2014 session are moot. As to his claims for the 2015-2016 session, AgendaWise presented nothing to establish his anticipated application for a media pass would be denied. Further, it did not exhaust the appeals process for the last session, so it failed to establish whether it would qualify for the  “capable of repetition yet evading review” exception to mootness/ripeness. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Rose, Justice Goodwin. Memorandum Opinion by Justice Goodwin. The attorneys listed for the officials are Ms. Erika M. Kane and Mr. Kristofer S. Monson.  The attorneys listed for AgendaWise are Mr. Tony McDonald and Mr. Clayton Callen.