                                                                                                                           ACCEPTED
                                                                                                                      03-14-00314-CV
                                                                                                                             3617224
                                                                                                            THIRD COURT OF APPEALS
                                                                                                                       AUSTIN, TEXAS
                                                                                                                12/30/2014 2:15:31 PM
                                                                                                                    JEFFREY D. KYLE
                                                                                                                               CLERK
                          CAUSE NUMBER 03-14-00314-CV
  -----------------------------------------------------------------------------------------------
                             IN THE COURT OF APPEALS                               FILED IN
                                                                            3rd COURT OF APPEALS
                              THIRD DISTRICT OF TEXAS                            AUSTIN, TEXAS
  ----------------------------------------------------------------------------------------------
                                                                            12/30/2014 2:15:31 PM
                                                                                             JEFFREY D. KYLE
                                                                                                  Clerk
                        RANDY TRAVIS, APPELLANT
                                   V.
                 TEXAS DEPARTMENT OF PUBLIC SAFETY AND
                   TEXAS ATTORNEY GENERAL, APPELLEES

     -------------------------------------------------------------------------------------------

                 ON APPEAL FROM THE 353rd DISTRICT COURT
                              OF TRAVIS COUNTY, TEXAS
                TRIAL COURT CASE NUMBER: D-1-GN-13-001617
                The Honorable Judge Stephen Yelenovsky, Presiding
     -------------------------------------------------------------------------------------------

                                REPLY BRIEF OF APPELLANT
                                     RANDY TRAVIS
------------------------------------------------------------------------------------------------------------------

                               ORAL ARGUMENT REQUESTED

  ------------------------------------------------------------------------------------------------------------------

                                                               Martin J. Cirkiel, Esq.
                                                               State Bar No. 00783829
                                                               Cirkiel & Associates, P.C.
                                                               1901 E. Palm Valley Blvd.
                                                               Round Rock, Texas 78664
                                                               (512) 244-6658 [Telephone]
                                                               (512) 244-6014 [Facsimile]
                                                               marty@cirkielaw.com [Email]
Mr. John Nix, Esq.
State Bar No. 24025564
Nix, Hoover & Kreck
514 North Elm
Sherman, Texas 75090
(903) 868-2600 [Telephone]
(903) 868-2330 [Facsimile]
jhnixlaw@yahoo.com [Email]

Mr. John Friedman, Esq.
State Bar No. 07469300
Friedman & Feiger, LLP
5301 Spring Valley Road, Suite 200
Dallas, Texas 75254
(972) 788-1400 [Telephone]
(972) 788-2667 [Facsimile]
lfriedman@fflawoffice.com [Email]

ATTORNEYS FOR APPELLANT
                                         TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

I.      REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A.      GENERAL MATTERS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B.      REPLY TO OBJECTIONS ON STATEMENT OF FACTS . . . . . . . . . . . . 2

C.      THE DASHCAM INFORMATION IS CONFIDENTIAL . . . . . . . . . . . . . . 4

D.      THE INFORMATION SHOULD NOT BE RELEASED DUE TO TRAVIS’
        CURRENT INCAPACITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II.     CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.    CERTIFICATE OF SERVICE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IV.     APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




Appellant’s Rely Brief                                                                                                  iii
                                       TABLE OF AUTHORITIES

Supreme Court Cases

Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . 1

Federal Cases

Bing Shun Li v. Holder, 400 Fed. App’x 854-857-858 (5th Cir. 2010) . . . . . . . . . . 2

State Cases

Lyons v. Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. – El Paso,
1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985).. 3

State Statutes

Texas Health & Safety Code §571.015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




Appellant’s Rely Brief                                                                                                   iv
                                      I. REPLY

A.     GENERAL MATTERS

1.     As a matter of course, Randy Travis substantially relies upon his Brief Of

       Appellant (hereinafter referred to and cited as “Applnt.”) except where more

       specifically addressed herein. In addition, and as a threshold consideration, he

       reiterates and underscores his contention that the District Court erred by failing

       to consider that the release of audio-visual material should be afforded a

       different standard of review than print material (Applnt. At p. 15, ¶37-39,

       citing Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) [release of video has

       greater capacity for evil]).

2.     Travis also reiterates and underscores his contention, that if written medical

       information is generally confidential as a matter of law, then so should be any

       audio or visual depiction of those otherwise confidential medical conditions

       (Applnt. At p. 21, ¶53-54). If not, and for example, then while a person’s

       mental health records may remain confidential, (see, Texas Health & Safety

       Code §571.015), under the Attorney General’s argument, the video camera

       depiction of them being picked up off the streets of Austin by the police and

       then brought to the State Hospital, would be of a public interest. Surely, such

       a result cannot be correct.

Appellant’s Rely Brief                                                                 1
B.     REPLY TO OBJECTIONS ON STATEMENT OF FACTS

3.     In their Brief Of Appellee (hereinafter referred to and cited as “Applee.”), the

       Texas Attorney General first attacks portions of Travis’ Statement of Facts,

       Applee. at p. 2-3.   The initial concern is that certain personal information

       about Travis, both as a historical nature and subsequent to the incident in

       question is immaterial, is based upon unreliable citation, is based upon self-

       serving opinion and that Travis’ current mental and medical condition is

       “irrelevant.”

4.     It is important to note that the incident in question occurred on August 7, 2012

       (Applnt. at p. 4, ¶9). Just about a year later on July 15, 2013 Travis suffered

       a stroke, had brain surgery, and is now unable to speak and is borderline

       mentally incapacitated (Applnt. at p. 7-8, ¶17-18). This particular piece of

       information, which has easily been procured from public sources of

       information like Wikipedia, is not only reliable and uncontroverted. In fact, the

       information about his current incapacity was likewise found on the TMZ

       website. This writer must comment on the irony of Appellee’s position, that

       TMZ is a credible enough entity to seek public information but not publish it.

5.     In any case, the Appellee relies upon Bing Shun Li v. Holder, 400 Fed. App’x

       854-857-858 (5th Cir. 2010) and other similar cases, for the proposition that

Appellant’s Rely Brief                                                                2
       reliance upon Wikipedia or other internet sources of information is

       “unreliable.” First, reliance upon this case and others cited by Appellee is

       misplaced, as the internet material cited therein was used for legal citation

       purposes. It is not cited for legal conclusion or reliance by Travis.

6.     Moreover, this case does not say what Appellee states, rather it merely

       implores to be cautionary and not to place any “improper reliance” upon such

       sources. Travis fails to see how reliance on his current medical and mental

       state, which is well-known now, is somehow “improper.”

7.     Further, Travis’ current medical and mental condition is integral to his

       argument that certain audio-visual information in the record, even if arguably

       public at one point in time, lost that character with his changing medical

       condition. It’s inclusion may be disagreeable to the State, but it is not

       improper or irrelevant, as they suggest.

8.     On a related note, the Appellee also argues that certain portions of Travis’

       factual resume is based upon “opinion” (Applee. at p. 3, fn. 4) or “hearsay

       (Applee. at p. 3, fn. 5).” Travis believes that what the Appellee characterizes

       as “opinion” or even “hearsay”, he characterizes as an inference that must be

       afforded to him at this stage of the litigation, Nixon v. Mr. Property

       Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985), especially since it is

Appellant’s Rely Brief                                                              3
       based upon their own evidence. See also Tex. R. Civ. P. 193.7; Lyons v.

       Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. – El Paso, 1998,

       no pet.)[Plaintiff may rely upon other party’s pleadings as “judicial

       admissions”]. As such, Appellees argument that certain portions of his factual

       resume be stricken, should be denied.

C.     THE AUDIO-VISUAL DASHCAM INFORMATION IS CONFIDENTIAL

9.     In his Brief, (Applnt. at p. 9, ¶20; p. 16, ¶16-17) Travis noted that the State of

       Texas has already deemed the information in question to contain “information

       that was highly intimate with embarrassing facts.” In their response, the

       Attorney General (Applee. at p. 21-22) now wants to qualify this statement, to

       mean something other than it clearly says. They benefit from no such

       inferences as does Travis. What the DA’s statement is “more properly

       understood” to be, is not an issue; rather what the statement specifically said,

       is the issue. Such an attempt by the State to re-characterize its own evidence

       should likewise be rejected. As such, Travis’ argument based upon the theory

       of Judicial Estoppel should continue to control on this point.

D.     THE INFORMATION SHOULD NOT BE RELEASED DUE TO TRAVIS’
       CURRENT INCAPACITY

10.    Last, this writer feels compelled reiterate the rather common-sense argument



Appellant’s Rely Brief                                                                 4
       that if Travis no longer has the medical or mental capacity or ability to speak

       for himself, then any public right to know was extinguished upon such

       incapacity (Applnt. at p. 22, ¶56). At the time he presented no case law in

       support of such a proposition, which the Appellee duly noted. Nevertheless,

       Travis now takes the opportunity to address his argument.

11.    The underlying tug-of-war in this case, is the public’s right to know versus an

       individual’s sense of privacy. If a Court would permit release of the current

       audio-visual portions of the dashcam, then the current requestors and in fact,

       all other media, would surely have numerous questions for Travis. But he has

       no ability to defend himself or his actions or in any way discuss them, as he

       cannot speak. In fact there is some question as to whether or not he has legal

       capacity. Surely, the public’s right to know should end, when the individual,

       like Randy Travis, may no longer even have the ability to know or remember

       what happened that summer, let alone discuss it.

                         II. CONCLUSION AND PRAYER

12.    WHEREFORE, PREMISES CONSIDERED, Appellant prays in the manner

       and particulars noted above, that his Appeal be GRANTED, that the Final

       Judgment be vacated, that he be declared a prevailing party, have his attorneys

       fees paid by Appellee and for such other further relief as the Court may deem

Appellant’s Rely Brief                                                               5
       just and proper in law or in equity.

                                              Respectfully submitted,

                                              /s/ Martin J. Cirkiel

                                              Martin J. Cirkiel, Esq.
                                              State Bar No. 00783829
                                              Cirkiel & Associates, P.C.
                                              1901 E. Palm Valley Blvd.
                                              Round Rock, Texas 78664
                                              (512) 244-6658 [Telephone]
                                              (512) 244-6014 [Facsimile]
                                              marty@cirkielaw.com [Email]

                                              Mr. John Nix, Esq.
                                              State Bar No. 24025564
                                              Nix, Hoover & Kreck
                                              514 North Elm
                                              Sherman, Texas 75090
                                              (903) 868-2600 [Telephone]
                                              (903) 868-2330 [Facsimile]
                                              jhnixlaw@yahoo.com [Email]

                                              Mr. John Friedman, Esq.
                                              State Bar No. 07469300
                                              Friedman & Feiger, LLP
                                              5301 Spring Valley Road, Suite 200
                                              Dallas, Texas 75254
                                              (972) 788-1400 [Telephone]
                                              (972) 788-2667 [Facsimile]
                                              lfriedman@fflawoffice.com [Email]

                                              ATTORNEYS FOR APPELLANT




Appellant’s Rely Brief                                                             6
                         III. CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 1,704 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in WordPerfect X7, using 14-point
typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.


                                                      /s/ Martin J. Cirkiel
                                                      Martin J. Cirkiel




Appellant’s Rely Brief                                                                7
                         IV. CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the foregoing
has been forwarded to the following parties on the 30th day of December, 2014 by
Notice of Electronic Filing from the Clerk of the Court:

Mr. Matthew Entsminger, Asst. Attorney General
State Bar No. 24059723
Open Records Litigation
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 475-4151 [Telephone]
(512) 457-4686 [Facsimile]
mathew.entsminer@texasattorneygeneral.com [Email]
Electronically through the Electronic Filing Manager
Attorney for Texas Attorney General

Ms. Kimberly L. Fuchs, Asst. Attorney General
State Bar No. 24044140
Chief, Open Records Litigation
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 475-4195 [Telephone]
(512) 320-0167 [Facsimile]
kimberly.fuchs@texasattorneygeneral.com [Email]
Electronically through the Electronic Filing Manager
Attorney for Texas Department of Public Safety

                                                   /s/ Martin J. Cirkiel
                                                   Martin J. Cirkiel




Appellant’s Rely Brief                                                            8
                                               IV. APPENDIX

A.     CD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




Appellant’s Rely Brief                                                                                                     9
