Untitled Texas Attorney General Opinion

.
. .

The Attorney General of Texas

.“H MAl-fOX December 21. 1984
/ torney General

! preme calfl BUllding Honorable John B. Holmes. Jr. Opinion NO. JM-266
b. 0. Box 12540 Harris County District Attorney
*“*lln. TX. 78711- 254 201 Pannin. Suite 200 Re: Whether a district
f’21475.2501 attorney is subject to the
Houeton,:Tex.ae 77002
1 I4X SlWS74.13S7
Open Records Act
: .Iecopier512147W2M

Dear Nr. Iiolmee:
; * Jackron. Sulle 700
i. -Ilab. TX. 7S20245oS
You.have informed us that two inmates at the Texas Department of
2lu742aS44
Corrections “have each requested copies of the entire file or files
pertaining to themselves vhlch might be held in the [Rarrie County]
~24 Alberle Ave.. ,$ulle 160 district ,attorney’s office.” You have asked whether the district
El Paso. TX. -2793 attorney must release these files. You argue that the Open Records
“‘Y533.3404
Act, article 6252-17a, V.T.C.S.. does not require him to do SO
because: (1) the office of the district attorney is part of the
1001 Texas. Suilq 700 judicial department of state government created by article V of the
’ w*ton. lx. 77w2-3111 Texas Constitution and therefore is within the judiciary exception to
3l223.5888 the definition of “governmental body” contained in section 2(l) of the
act; (2) the district attorney’s office la not a “record-generating
agency,” and “documents held by it that are public records should be
. -6 Broadway. Sulle 312
obbcxk, TX. 7S401-479
obtalned from the agency that is the legal custodian of said records”;
aarr47-5238 and (3) the files are excepted from required disclosure under sections
.3(a)(l). 3(a)(3)$ 3(e)(7). and 3(a)(8) of the act.
08 N. Tenlh. St1114S
In responac to your first argument, It Is true that the office of
h.CAIlm. TX. 7SSw1885
512lSS2-4Y7 the dietrict attorney ,ls part of the judicial department created by
article. V of the Texas Constitution. Thle does not mean. however.
that this office la vlthin the judiciary exception to the Open Records
.JO Main Plu*. Sulle 400
Act.
!Z.anAntonlo. TX. 782052797
-:2/2254191
The office of county sheriff is also within the judicial depart-
ment of state government. Tex. Const. art. V. 123. Nevertheless, in
An Equal Opporlunllyl Open Records Decision No. ,7g (1975). this office held that the office
Wrm.tlre ActIon Employer of sheriff is within section 2(1)(F) of the Open Records Act. which
defines “governwntal body” to include “the part, section. or portion
of. every organization. corporation. commi6slon. committee. institu-
tion* or agency which is supported In vhole or in part by public
fundo. or which expends public funda.” and that it is not within the
section Z(l)(C) judiciary exception. The decision reasoned as
follovs:

p. 1185
Honorable John B. Holmes, Jr. - Page 2 (JH-266)

The office of sheriff Is created under the
ludicial article of the Constitution . . . and is
a part of the judicial department of the State
government. See State v. Moore. 57 Tex. 307
(1882). The G Records Act in section 2(1)(G)
excludes ‘the -Judiciary from the definition of
governmental body; however. we do not believe this
exclusion operates here to remove the sheriff from
the coverege of the Act. It is our opinion that
the Legislature did not use the term ‘judiciary’
to denote all those persons who are in the
judicial department. Thus, it is our vlev that e
district court vould be excluded from the opera-
tion of the Act, vhile the Sheriff would not. The
Legislature’s specific inclusion of comissioners
courts in the Act reinforces this view since
comelsaioners courts are also created in the
judicial article of the Constitution.

In Benavides v. Lee. 665 S.W.2d 151 (Tex. Civ. App. - San Antonio
1983, no writ). moreover, the San Antonio Court of Appeals construed
the judiciary exception. Benavldes involved an appeal from a district
court order granting a writ of mandamus under the Open Records Act.
The district court had ordered a member of the. Webb County Juvenile
Board to release those parts of resumea containing the qualifications
of applicants for the position of chief juvenile probation officer.
The board, however, sought to have the order overturned, arguing that
.the board was an extension of the judiciary and therefore was not
subject to the act. The court of appeals disagreed. stating:

Appellant suggests that the Board is an exten-
sion of the judiciary because the dutlee of the
juvenile probation officer for which that offker
anauere directly to the Board are entwined vith
the functions of the judiciary. Furthermore, all
the Board members are members of the judiciary
except for the county judge vho has both judicial
and non-judicial functions.

Analysis should focus not on the functions of
the probation officer but on the Board Itself and
the kind of information requested. Since the
applicant informatlon vae collected and used by
the Board, the nature of the Board In part
determines the applicability of the Open Records
Act to Board records. The Board is not a court.
A separate entity, the juvenile court, not the
Board, exists to adjudicate matters concerning

P. 1186
Houorable John R. Holmes, Jr. - I’age 7 (JM-266)

juveniles. Nor Is the Board directly controlled
or supervised by a court.

Horeover; simply ,becsuse the Legislature chose
judges aa Board members. art. 5139353. 91, does
not in itself indicate they perform on the Board
as members :of the judiciary. Board members are
paid a separate salary for their Roard work in
addition to their salaries as judges. Further-
more, classification of the Board as judicial or
not depends on the functions of the Board, not on
members’ service elsewhere in government. The
Board’s role as described in art. 5139555 z
exclusively administrative. . . .

The judiciary exception, 02(l)(C). ins important
to safeguard judicial proceedings and maintain the
independence of the judicial branch of government,
oreservinn.statutorv and case law already_ -govern-
ing access- to judi&al records. But it must not
be extended to every governmental entity having
any connection with the judiciary. The intent of
the Open Records Act must not be circumvented by
an unnecessarily broad reading of the judiciary
exclusion. (Emphasis added).

Using these guidelines, we conclude that the office of the
district attorney is not within the judiciary exception. This office
is not a court’ nor is it directly controlled or supervised by a
court. Its functions. moreover, are primarily executive, in the sense
that its primary duty Is to enforce the law. Code Grim. Proc. art.
2.01.

In our opinion’ the office of the district attorney’ like the
office of the county sheriff, clearly Is supported by public funds and
therefore Is within the section 2(1)(F) portion of the definition of
“governmental body” contained in the Open Records Act. Because ve are
of the opinion that this office is not within the judiciary exception
to that definition, ue conclude that it is a governmental body within
the meaning of the act.

In aosuer
to your second argument’ the fact that a request for
public records
might be more appropriately directed to a different
governmental body does not mean that it cau be dismissed by a govern-
mental body to vhicl’ it Is properly directed. Section 3(a) of the
Open Records Act provides that

[allI. information collected, assembled. or msin-
talned by governmental bodies pursuant to law or

P. 1187
 .
Honorable John 8. Holmes. Jr. - Page 4 (~~-266)

ordinance or in connection with the transaction of
official business is public information.

We have already concluded that the office of district attorney is a
“governmental body,” and the information you have provided convinces
us that the filer in question constitute “public information” under
the foregoing definition. Unless they ere excepted under sectioa 3(a)
of the act. therefore, these files must be released.

We now turn to your section3(a) arguwnts. First, we reject
your section 3(a)(3) argument. You contend that this section, the
litigation exception, applies because

the files requested are records of final convic-
tions but these convictions remaln subject to
collateral attack so long as an inmate Is con-
fined. A criminal defendant has standing to
attack convictions vhich result from guilty pleas
as well as jury trials by means of a writ of
habeas corpus. Should inmates begin receiving
free copies of files kept by the District
Attorney’s Office, the anticipation of litigation
is very real and very reasonable.

You have, hovever. done no more than show that litigation could ensue
in one or more instances. Section 3(a)(3) is triggered. not when a
mere chance of litigation exists, but only when litigation coucerning
e specific matter is either pending or reasonably anticipated. Set,
s Open Records Decision No. 331 (1982). Concrete evidence must be
adduced shoving that the claim that litlgatlon may ensue is more than
mere conjecture. Open Records Decision No. 328 (1982). In this
instance. you have furnished us with no concrete evidence indicating
that litigation regarding a specific matter is reasonably anticipated.

Section 3(a)(7) excepts information concerning

matters in vhich the duty of the Attorney General
of Texas or an attorney of a political eub-
division. to his client, pursuant to the Rules and
Canons of Ethics of the State Bar of Texas are
Prohibited from disclosure. or which by order of a
court are prohibited from disclosure.

This section might be applicable in this instance. You have not,
however, cited any specific “Rules and Canons of Ethics” or court
orders vhich would be violated if information in the requested files
were released. Unless you do so within ten (IO) days of the issuance
of this opinion, we will conclude that section 3(a)(7) is
inapplicable.

P. 1188
Honorable John B. Holmes, Jr. - Page 5 (m-266)

You also claim exceptiona under sections 3(a)(l) and 3(a)(8).
Section 3(a)(l). you assert, excepts the portions of the requested
files which contain attorney work product, Code Grim. Proc. art.
39.14; Brem v. State, 571 S.U.2d 314 (Tex. Grim. App. 1978); lnforma-
tion that would be tantamount to grand jury files, Code Grim. Proc.
arts. 19.34. 20.02, 20.16; Open Records Decision No. 398 (1983); and
information excepted under consnon law privacy. Billings V. Atkinson.
489 S.W.Zd 858 (Tex. 1973). Section 3(a)(8), you contend, applies for
the following reasons:

The District Attorney’s Office is a ‘law enforce-
ment agency’ within the meaning of section
3 (a) (8). Investigators who are peace officers are
assigned to each felony District Court, the misde-
meanor division. and the Special Crime Divisions.
These Investigators assist prosecutors in pre-
paring evidence for trial. The files of the
District Attorney frequently contain Inter-office
reports prepared by investigators for internal
use.

Sections 3(a)(l) and 3(a)(8) very likely except from required
disclosure some portions of the requested files. This office has
repeatedly stated, however. that governmental entities which claim
exceptions to the Open Records Act bear the burden of demonstrating,
when such is not readily apparent, how and why those exceptions apply.
In this instance, it is not at all apparent how sections 3(a)(l) or
3(a)(E) apply to some of the requested materials. What you deem
“attorney work product,” for example, is not clear, nor is it readily
apparent how the release of some of these materials vould “unduly
Interfere with law enforcement and crime prevention.” See. e.g.. Open
Records Decision No. 297 (1981). Within ten (10) days of the Issuance
of this opinion. you must indicate which specific portions of the
requested materials are, In your opinion. excepted f ram required
disclosure under sections 3(a)(l) and 3(a)(8). and you must also
indicate, where such is not readily apparent, why these sections
apply. If you decline to do so, we vi11 be compelled to conclude that
these sections are not applicable.

In summary. therefore, the office of the district attorney of
Harris County is a “governmental body” within the meaning of the Open
Records Act. Within ten (10) days of the issuance of this opinion.
you must demonstrate how and why sections 3(a)(l). 3(a)(7). and
3(a)(8) apply to specific portions of the files which have been
requested. If such demonstration is not made within ten days, the
files must be made available to the requesters.

p. 1189
Honorable John 8. Holmaa, Jr. - Page 6 (3~266)

SUIIHARY

Tbc office of the district attorney la a
"governmental body" within the meanjng of the iOpen
Records Act.

JIM MATTOX
Attorney General of Texas

Ton GREBN
First Aaslstant Attorney General

DAVID R. RICNARDS
Executive Aasistnnt Attorney General

RICK CILPIN
Chairman, Opinion Cmittee

Preparad by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COI44ITTEE

Rick Gilpin, Cbairmsn
Jon Bible
Colin Carl
Susan Gerr'iaou
Jim Uoellinger
Jennifer Riggs
Nancy Sutton