
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-05-00230-CV


In re District Attorney Fred Hernandez





ORIGINAL PROCEEDING FROM TRAVIS COUNTY



M E M O R A N D U M   O P I N I O N


	Relator Fred Hernandez, District Attorney for the 63rd Judicial District, has filed a
petition for writ of mandamus seeking a jury trial in the underlying Public Information Act litigation. 
Relator may challenge the attorney general's application of waiver doctrines to portions of the active
litigation file at issue in this case by pursuing this cause of action in the trial court.  See Tex. Gov't
Code Ann. § 552.353(c) (West 2004). (1)  Should the trial court ultimately decide to award attorney's
fees, a jury is the appropriate body to make the award.  See id. at (b); City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 367 (Tex. 2000).  We deny the petition for writ of mandamus,
because we do not believe that relator has shown a clear abuse of discretion in the denial of a jury
trial with regard to the Public Information Act legal issues and we will not assume that should a jury
become necessary with regard to attorney's fees that the trial court will refuse to use one.
	Our opinion should not be interpreted as an advisory opinion about the underlying
subject matter, which ultimately may be the subject of an appeal to this Court.  Our stay issued May
26, 2005, is dissolved.


  
					W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Filed:   October 27, 2005
1.   Although the application of waiver doctrines seemed somewhat cursory and mechanical
as portions of what appeared to be the same active litigation file were found protected under the law
enforcement and prosecutorial information exemptions, see Tex. Govt' Code Ann. § 552.108 (West
2004), we do not have the same fully developed record that we would have after trial on the merits.

