       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-18-00346-CV


               Ken Paxton, Attorney General of the State of Texas, Appellant

                                               v.

                   David A. Escamilla, Travis County Attorney, Appellee


              FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-17-004329, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING



                                        OPINION


              Ken Paxton, the Attorney General of the State of Texas, appeals the trial court’s

final summary judgment that David A. Escamilla, the Travis County Attorney, is not required to

disclose deferred prosecution agreement (DPA) records due to exceptions to the Texas Public

Information Act (PIA). We will affirm the trial court’s judgment.


                                       BACKGROUND

              The County Attorney received a PIA request for each DPA that his office has

executed in domestic-violence cases since April 1, 2015.

              A DPA is an extra-judicial agreement1 between a person charged with a crime and

the prosecutor to defer the prosecution of a criminal charge for an agreed term during which the


       1
           The definition and effect of a DPA as described in this paragraph are taken from the
uncontroverted affidavit of Assistant County Attorney Mack Martinez, which was attached to the
County Attorney’s summary-judgment motion. See also Tex. Gov’t Code § 76.011(a) (authorizing
pretrial intervention programs).
criminal defendant must fulfill specified conditions. After the defendant and the prosecutor

sign the DPA, the criminal case is conditionally dismissed. If the defendant fulfills all the DPA

conditions, the County Attorney takes no further action as the criminal case was already

dismissed. However, if the defendant fails to comply with any of the agreement conditions, the

County Attorney has the authority to refile the charges and prosecute the case.2

               The County Attorney declined to release the DPAs and sought an opinion

from the Attorney General’s Open Records Division, asserting that the requested records were

excepted from required public disclosure. See Tex. Gov’t Code § 552.301 (outlining procedures

for obtaining Attorney General decisions about whether requested information falls within

exception). The Attorney General issued Open Records Letter Ruling OR2017-16049 in response,

determining that the DPAs whose terms had concluded could be withheld pursuant to a provision

of the law-enforcement exception, see id. § 552.108(a)(2), but the DPAs with terms that had

not concluded were not excepted from disclosure and must be released. See Tex. Att’y Gen.

OR2017-16049 (2017).

               The County Attorney timely filed suit seeking declaratory relief from the

Attorney General’s determination. See Tex. Gov’t Code § 552.324 (permitting suits to challenge

letter ruling of Attorney General on PIA requests). The parties each filed motions for summary

judgment, and the trial court at a hearing on the cross-motions reviewed in camera a sample of

the records at issue. See id. § 552.3221 (providing for court’s in camera inspection of records at



       2
          This Court has construed these agreements in other contexts. See D.J.H. v. Hays
Cty. Dist. Att’y, No. 03-17-00159-CV, 2018 WL 2016283, at *3 (Tex. App.—Austin May 1,
2018, no pet.) (mem. op.) (expunction of records); State v. Misiaszek, No. 03-13-00728-CR,
2014 WL 7149177, at *1–2 (Tex. App.—Austin Dec. 10, 2014, no pet.) (mem. op., not designated
for publication) (dismissal of criminal charges).
                                                2
issue). After the hearing the trial court granted the County Attorney’s summary-judgment motion

and denied the Attorney General’s cross-motion. The trial court’s final judgment declared and

ordered that all of the DPAs were excepted from disclosure, dividing them into three categories:


       (1) The deferred prosecution agreements pertaining to dismissed criminal cases
           that have not been refiled [Category 1 DPAs] are excepted from public
           disclosure by section 552.108(a)(2) of the Texas Government Code;

       (2) The deferred prosecution agreements pertaining to dismissed criminal cases
           that have been refiled and then dismissed again [Category 2 DPAs] are
           excepted from public disclosure by section 552.108(a)(2) of the Texas
           Government Code; [and]

       (3) The deferred prosecution agreements pertaining to dismissed criminal cases
           that have been refiled and that are still pending [Category 3 DPAs] are
           excepted from public disclosure by sections 552.108(a)(1), 552.103, and
           552.107 of the Texas Government Code.


                                         DISCUSSION


Standard of review

               This case requires us to construe statutory exceptions to disclosure under the PIA.

The statutory-construction issues arise in the context of cross-motions for summary judgment.

In our review of such cases, “we determine all issues presented and render the judgment the

trial court should have rendered.” Colorado County v. Staff, 510 S.W.3d 435, 444 (Tex. 2017).

Statutory construction presents a question of law, which we determine de novo under well-

established principles. Paxton v. City of Dallas, 509 S.W.3d 247, 256 (Tex. 2017).

               When construing a statute, our primary objective is to give effect to the

legislature’s intent. Staff, 510 S.W.3d at 444. “We seek that intent ‘first and foremost’ in the

statutory text, and ‘[w]here text is clear, text is determinative’ of intent.” Id. (quoting Greater

Hous. P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015); Entergy Gulf States, Inc. v. Summers,

                                                3
282 S.W.3d 433, 437 (Tex. 2009)). “The plain meaning of the text is the best expression of

legislative intent unless a different meaning is apparent from the context or the plain meaning

leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

We neither rewrite a statute under the guise of interpreting it nor do we look beyond its language

for assistance in determining legislative intent unless the statutory text is susceptible to more

than one reasonable interpretation. Staff, 510 S.W.3d at 444. We narrowly construe exceptions

to the disclosure requirement of the PIA. Texas State Bd. of Chiropractic Exam’rs v. Abbott,

391 S.W.3d 343, 347 (Tex. App.—Austin 2013, no pet.).


The law-enforcement exception

                 In his summary-judgment motion, the County Attorney asserted that the DPAs

are excepted from disclosure under the PIA’s law-enforcement exception, which provides in

relevant part:


       (a) Information held by a law enforcement agency or prosecutor that deals
           with the detection, investigation, or prosecution of crime is excepted from
           [disclosure] if:

                 (1) the release of the information would interfere with the
                     detection, investigation, or prosecution of crime; [or]

                 (2) it is information that deals with the detection, investigation, or
                     prosecution of crime only in relation to an investigation that
                     did not result in conviction or deferred adjudication[.]


Tex. Gov’t Code § 552.108(a). The County Attorney contends that subsection (a)(2) excepts from

disclosure the first two categories of DPAs and that subsection (a)(1) excepts the third category.3



       3
         The County Attorney asserts, and the trial court determined, that two other exceptions
apply to the third category; however, we need not address those two other exceptions, as we
                                                   4
Category 1 and Category 2 DPAs

               We agree with the County Attorney that the trial court properly determined that

subsection (a)(2) of the law-enforcement exception excepts from disclosure Category 1 DPAs—

those with unexpired terms in which charges have not been refiled—and Category 2 DPAs—

those in which charges were refiled but then dismissed. The exception applies to information

that “deals with the . . . investigation or prosecution of crime” (i.e., all of the DPAs) but only if

the information is “in relation to an investigation that did not result in conviction or deferred

adjudication.” Id. § 552.108(a)(2). In other words, when a criminal investigation has “resulted

in” something other than a conviction or deferred adjudication, the records in relation to that

investigation are excepted from disclosure. See id.

               The PIA does not define the verb “to result [in],” but the common meaning of the

verb in this context is to “terminate,” “end,” or “arise as a consequence, effect, or conclusion.”

Webster’s Third New Int’l Dictionary 1937 (2002). Thus, when a criminal investigation has

terminated with an outcome other than a conviction or deferred adjudication, the records

pertaining thereto are excepted from disclosure.       The text of the exception focuses on the

termination of a criminal investigation (“an investigation that did not result in conviction or

deferred adjudication”), not the termination of the prosecution of criminal charges. A prosecutor’s

offer to a defendant of deferred prosecution (by which the charges are dismissed and the

County Attorney takes no further action, assuming the defendant complies with the agreement’s

terms) necessarily implies that the prosecutor’s investigation of the charges has ended. It is the




determine that the law-enforcement exception is dispositive of the issues in this appeal. See Tex.
R. App. P. 47.1.
                                                 5
prosecutor’s decision to conclude the investigation with a DPA that constitutes the termination of

the investigation; the dismissal of charges, albeit conditional, is the “result” of the investigation.

               This interpretation is mandated by the statute’s plain language and is supported

by a prior opinion from this Court. See City of Carrollton v. Paxton, 490 S.W.3d 187, 196

(Tex. App.—Austin 2016, pet. denied) (concluding that records related to investigation of

misdemeanor charges that were dismissed without prejudice and thus subject to being refiled

were excepted from disclosure under section 552.108(b)(2), which similarly excepts records

“in relation to an investigation that did not result in conviction or deferred adjudication”). A

dismissal of criminal charges, even if conditional, constitutes the conclusion of an investigation

by way of some action other than a conviction or deferred adjudication. The exception in

subsection (a)(2) covers both the DPAs with unexpired terms in which charges have not been

refiled (Category 1 DPAs) and the DPAs in cases in which charges have been refiled but then

dismissed (Category 2 DPAs) because in both situations the investigation of criminal charges has

concluded by way of dismissal rather than conviction or deferred adjudication. See Tex. Gov’t

Code § 552.108(a)(2).

               The Attorney General advances a different interpretation of subsection (a)(2)—

that it does not cover DPAs with unexpired terms (“pending DPAs”) because “prosecution of the

charge remains open [and] the eventual ‘result’ of the investigation remains in question.” This

interpretation contemplates two types of “results” of an investigation—an immediate result (a

DPA) and an “eventual” result (which “remains in question” and depends on whether the

defendant fulfills the DPA’s requirements); however, the statute does not make such

differentiation, focusing on the termination of an investigation, not the termination of a

prosecution, as explained above. Although we are to give “due consideration” to the Attorney

                                                   6
General’s construction and application of the PIA, that does not permit courts to construe the

PIA “in derogation of the statutory text the Legislature has actually used.” City of Carrollton,

490 S.W.3d at 195. The Attorney General’s interpretation also undermines the public policy

implicit in the statute because if a DPA with an unexpired term were disclosed but then, later,

the term expired without charges being refiled, there would be no way to “undo” the disclosure

despite the statute’s specific exception of dismissed charges. Whether a DPA is subject to

disclosure should not depend on when a PIA request is made vis a vis the running of the DPA’s

term; such an interpretation would prejudice some criminally charged individuals by making

their records public while protecting others, merely due to the timing of the request.

               The County Attorney’s uncontroverted evidence in the form of the affidavits of

two assistant county attorneys shows that charges are conditionally dismissed upon the execution

of a DPA and that the County Attorney takes no further action upon the end of a DPA’s term if

the defendant has fulfilled the DPA’s conditions. We conclude that dismissal pursuant to a DPA,

even if conditional until the DPA’s term has run, satisfies the requirement in subsection (a)(2) of

an investigation that has not resulted in conviction or deferred adjudication; the Category 1

DPAs are thus excepted from disclosure under the PIA. We also conclude that the dismissal of

criminal charges that were refiled after the execution of a DPA satisfies the requirement in

subsection (a)(2) of an investigation that has not resulted in conviction or deferred adjudication;

the Category 2 DPAs are thus excepted from disclosure as well.


Category 3 DPAs

               We also agree with the County Attorney that the trial court properly determined

that subsection (a)(1) of the law-enforcement exception excepts from disclosure the Category 3


                                                 7
DPAs—those pertaining to cases in which a DPA was executed, the defendant failed to comply

with one or more conditions of the agreement, and charges were later refiled and are still

pending. Subsection (a)(1) excepts from disclosure information dealing with the prosecution or

investigation of crime “if the release of the information would interfere with the detection,

investigation, or prosecution of crime.” See Tex. Gov’t Code § 552.108(a)(1). The County

Attorney’s uncontroverted evidence in Assistant County Attorney Martinez’s affidavit and our

review of the DPAs at issue4 indicate that release of the DPAs to the public in these pending,

active cases would interfere with the detection, investigation, or prosecution of crime.

               Martinez averred that release of the Category 3 DPAs “will result in excessive

publicity, resulting in due process violations and endangering the prosecution.” See Houston

Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186 (Tex. App.—Houston [14th Dist.]

1975) (“[T]he State has a legitimate interest in preventing excess publicity which might lead to a

denial of due process and endanger the prosecution.”), writ ref’d n.r.e., 536 S.W.2d 559 (Tex.

1976) (per curiam). Release of the DPAs to the public would likely have resulted in excessive

publicity and thus interfered with the prosecution and the defendants’ due-process rights,

as asserted by the County Attorney. The County Attorney—charged with investigating and

prosecuting crime, see Tex. Code Crim. Proc. art. 2.02 (outlining duties of county attorneys);

Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex. App.—San Antonio 1957, no writ) (“It has

always been the principal duty of the district and county attorneys to investigate and prosecute

the violation of all criminal laws[.]”)—is uniquely positioned to determine whether the release of


       4
          A supplemental clerk’s record was filed under seal in this Court containing the DPAs
submitted to the trial court for in camera review. See Tex. Gov’t Code § 552.3221(c)(3) (“The
information at issue filed with the court for in camera inspection shall be . . . transmitted by the
clerk to any court of appeal as part of the clerk’s record.”).
                                                 8
particular documents would interfere with those duties. And, as already mentioned, the County

Attorney’s evidence demonstrating that release of the DPAs would “endanger the prosecution”

was uncontroverted.

               The Attorney General argues that release of the DPAs in pending cases cannot as

a matter of law interfere with the detection, investigation, or prosecution of crime because the

County Attorney “voluntarily” provides a DPA to each criminal defendant upon the defendant’s

signing it; the defendant is not restricted from disseminating the agreement to the public; and the

information, therefore, is already “public” and thus must be made available to any other person.

See Tex. Gov’t Code § 552.007 (allowing for “voluntary” disclosure of public information unless

its disclosure is expressly prohibited by law or confidential under law and providing that public

information made available “voluntarily” must be made available “to any person”). The County

Attorney does not “voluntarily” provide a copy of the DPA to the defendant but is, rather,

required by law to provide it to the defendant. See Tex. Code Crim. Proc. Art. 39.14(a) (requiring

State to produce to defendant “any written or recorded statements of the defendant” upon

defendant’s timely request); see also Tex. Att’y Gen. ORD-454 (1986) (concluding that

governmental entity’s release of information that was not voluntary but was compelled by

law did not bar entity from invoking PIA exception). Furthermore, a defendant’s possession

of the DPA executed in his or her pending cause is unlikely to interfere with the detection,

investigation, or prosecution of crime, unlike the disclosure of one or more defendants’ DPAs to

the general public. See Tex. Code Crim. Proc. Art. 39.14(e) (prohibiting defendant and his

representatives from disclosing to third parties any documents received from State under this

article except if already publicly disclosed or upon court order).



                                                 9
               Based on our review of the DPAs at issue, supported by the County Attorney’s

uncontroverted evidence, we conclude that the trial court did not err in determining that the

Category 3 DPAs are excepted from disclosure under subsection (a)(1). See Tex. Gov’t Code

§ 552.108(a)(1).


                                        CONCLUSION

               The trial court properly granted summary judgment in favor of the County

Attorney in determining that the DPAs at issue are excepted from disclosure under the PIA.

Accordingly, we affirm the trial court’s final judgment.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: November 6, 2019




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