LEGAL TRENDS

Texas Supreme Court Resets Public Information Act Deadline

By Sandy Hellums and Casey Wallace

Tn The time in which a governmental entity has to seek an exception from disclosure for a Public Information Act (“PIA”) request is no longer tolled pending clarification from the requestor. Instead, the Texas Supreme Court has ruled that the ten-day period for seeking an exception is reset starting from the date that the public entity receives the clarification. This allows entities additional time to review the materials and determine if any protections may apply.

On February 19, 2010, in the City of Dallas v. Abbott, No. 07-0931, 2010 WL 571972 (Tex. Feb. 19, 2010), the Court held that “when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or overbroad request for public information, the 10 (ten) day period to request an attorney general opinion is measured from the date the request is clarified or narrowed.” Abbott arose out of a PIA request to the City of Dallas in which the City sought clarification regarding the request. Under the traditional rule, the City’s ten day limit for seeking an exception would have tolled pending the clarification and restarted for the remainder of the ten days once clarification was received. The Court disagreed with this approach and instead ruled that the ten-day time frame would restart on the date the governmental entity received clarification.

The Court reasoned that with the PIA, the Legislature intended to provide the public with prompt responses and access to public information. Generally, section 552.301(b) of the Texas Public Information Act requires a governmental body to request an attorney general opinion no later than the tenth business day after receiving a written request for documents. The Legislature also intended, however, for entities to have a reasonably clear idea of the information being requested before the deadline actually begins to run. An unclear or overbroad request hampers the government’s ability to identify statutory exceptions to disclosure.

The Court looked to other statutory language allowing for a resetting of the ten-day deadline to support its decision. It pointed specifically to sections 552.261, .275, and .263(e) of the PLA, which all provide mechanisms for dealing with costs associated with requests and provide that a request is not considered “received” until a bond is posted to cover costs, thus resetting the ten-day limit. TEX. GOV’T. CODE § 552.263(e).

From this, the Court reasoned that the ten-day deadline could also be reset for good faith efforts to clarify a request. A good faith attempt by the government to clarify or narrow requests should not, therefore, limit the entities’ time to challenge disclosure. What constitutes good faith under this opinion, however, is less clear. The Court stated that the government cannot use “requests for clarification in bad faith merely to delay production of public information,” but gave little else in the way of guidance.

Governmental entities may now seek to clarify and narrow requests such that they can better respond to citizens’ requests with the knowledge that once the issues are clarified it will have the full ten business days to seek exception from disclosure. 

Sandy Hellums and Casey Wallace are in the Litigation Section of Haynes and Boone, LLP where they concentrate their practice in public law.

Houston Limits On Public Gatherings Held Unconstitutional

ByAnn Zeigler

In late 2006, the 5,300 janitors belonging to the Service Employees International Union (SEIU) went on strike against Houston employers. The strike was to be supported by daytime rallies, parades and marches in downtown Houston. However, the City of Houston refused to issue several of the required permits, based on restrictions related to noise, timing and location of parades, and restricted access to city parks. The Union sued and obtained a preliminary injunction to allow some of the strike-related activities. Related litigation proceeded in federal district court, which determined that the Sound Ordinance, Parade Ordinance and Parks Ordinance at issue did not violate the Union members’ First Amendment free-speech rights. On appeal, the Fifth Circuit U.S. Court of Appeals in SEIU v. City of Houston, reversed the lower court in part on January 28, 2010, essentially finding unconstitutional several of the City’s restrictions on public gatherings.

The Sound Ordinance, with specific exceptions, bans or limits various kinds and sources of noise, including sound amplification, without permits. Only two permits per 30-day period may be issued for a location.

The Parade Ordinance defines a parade and prohibits any parade without a permit. In addition, even permitted weekday parades in downtown Houston are limited to one of two one-hour periods, and cannot cross more than ten street intersections.

The Parks Ordinance requires permits for “any public meeting or gathering” in “designated” park locations. The City conceded that the map designating the park areas subject to the permit requirement does not exist. The Parks Ordinance allows the City to deny a permit on several subjective bases, even if the objective requirements listed in the ordinance are met. Among the subjective tests cited by the Fifth Circuit are whether the “size and nature of the meeting is inappropriate for the designated area requested” or whether the “proposed function would be disruptive to or incompatible with, or cause an adverse effect on the use of the designated area by others.”

The focus of the opinion in SEIU v. City of Houston was on the following First Amendment issues: content-based regulations; narrowly tailored regulation of time, place and manner of expression; prior restraints; and vagueness.

After a detailed analysis of the First Amendment jurisprudence related to each issue, the Fifth Circuit determined that the Sound Ordinance’s limit of two permits per 30 days per location, the Parade Ordinance’s one-hour limit, and all of the Park Ordinance’s permitting requirements were unconstitutional, and remanded to the district court for appropriate further action.

Ann Zeigler is a bankruptcy attorney and of counsel to the securities litigation and arbitration practice at Nelson S. Ebaugh, P.C. She is the Editor in Chief of The Houston Lawyer.

Federal Circuit Reiterates that Lanham Act Standard for Fraud Requires Subjective Intent

By Al Harrison

The Federal Circuit recently held that a party seeking to prove fraudulent procurement or maintenance of a trademark registration before the Trademark Trial and Appeal Board (“TTAB”) must prove that the applicant or registrant, respectively, knowingly perpetrated a false, material representation with the intent to deceive the Patent and Trademark Office (“PTO”). In re Bose Corporation, No. 2008-1448, slip op. at 8 (Fed. Cir. Aug. 31, 2009). This Bose holding reversed a series of TTAB decisions finding fraudulent conduct under circumstances in which an applicant or registrant knew or should have known that a statement made to the PTO was false or misleading.

Hexawave, Inc. filed an application in the PTO for registration of the mark HEXAWAVE in conjunction with various audio components. Bose Corporation opposed Hexawave’s registration on the basis of likelihood of confusion with Bose’s prior registered trademarks, e.g., WAVE and ACOUSTIC WAVE, in conjunction with related goods. Accordingly, Bose filed an opposition in the TTAB. Hexawave responded by filing a counterclaim alleging that Bose had committed fraud upon the PTO during the renewal of its WAVE trademark registration in 2001. The TTAB, finding for Hexawave, canceled Bose’s WAVE trademark registration. Bose Corp. v. Hexawave, Inc., 88 USPQ2d 1332, 1338 (TTAB 2007). Bose promptly appealed.

The renewal filed by Bose relied upon its General Counsel’s declaration that Bose was using the WAVE mark on all of the goods listed in its trademark registration, including audio tape recorders and tape players. Truth be known, however, Bose had ceased manufacturing and selling WAVE audio tape recorders and players during a 1996 - 1997 time frame. While Bose’s General Counsel knew that Bose had discontinued sales of such products, he believed that Bose had nonetheless continued to use the WAVE mark in commerce by repairing such products which involved receiving the defective products from customers and then shipping the repaired products to its customers. Bose posited that receiving and transporting customers’ WAVE audio tape recorders and tape players contemporaneously with affording repair services, manifest prerequisite continuing use of the mark to sustain its registration. Unpersuaded, the TTAB concluded that the repair and shipment of the repaired goods were insufficient to constitute use in commerce as contemplated by the Lanham Act, 15 USC § 1127. Moreover, the TTAB found Bose’s General Counsel’s belief to be unreasonable and that his erroneous use-statement on behalf of the company was material and, consequently, that Bose had committed fraud.

The Federal Circuit reviewed the TTAB’s findings of fact and conclusions of law de novo under a substantial evidence standard, and found that the TTAB had devolved the Lanham Act fraud standard into a negligence standard, by merely requiring material misrepresentation to justify canceling a registration. The Court articulated that the Lanham Act requires clear and convincing evidence of intent to mislead the PTO: deception committed by a registrant must be willful to constitute fraud. Hence, false representation alone is insufficient for a showing of fraud; intent to deceive is the factor that elevates false representation to fraudulent representation. The Circuit Court indicated that, by equating a “should have known” test with a subjective intent test, the TTAB erroneously lowered the fraud standard to a simple negligence standard. The Federal Circuit left for another day to decide whether “reckless disregard” for the truth or falsity of a statement would also satisfy this fraud standard.

Thus, applying this subjective “intent to deceive” standard, the Federal Circuit held that Bose did not commit fraud while renewing its WAVE trademark registration: “There is no fraud if a false misrepresentation is occasioned by an honest misunderstanding or inadvertence without a willful intent to deceive.”

In this Bose decision, the Federal Circuit has brought the doctrine of fraud implicated in trademark matters into conformity with the doctrine’s application to patent matters. Subjective intent to deceive, albeit typically being elusive to prove, is an essential element of the Lanham Act fraud clear and convincing standard under which all implicated conduct must be analyzed in view of all the evidence before the PTO.

Al Harrison is a member of The Houston Lawyer Editorial Board. He is a patent attorney and intellectual property lawyer practicing with the firm of Harrison Law Office, P.C.

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