
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00237-CV


Juan Enriquez, Appellant

v.

Rissie Owens, Individually, and in her Official Capacity as Chairman,
Texas Board of Pardons and Paroles, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-06-001219, HONORABLE RHONDA HURLEY, JUDGE PRESIDING


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

		Juan Enriquez, an inmate in the Texas Department of Corrections, appeals from
a final summary judgment that he take nothing on claims he had asserted against appellee
Rissie Owens, individually and in her official capacity as chairman of the Texas Board of Pardons
and Paroles (Owens).  In three issues, Enriquez complains of discovery, evidentiary, and records-sealing orders that preceded the district court's summary-judgment ruling.  Finding no abuse of
discretion or harm from the rulings Enriquez challenges on appeal, we will affirm the district court's
judgment.

BACKGROUND
		Appellant Enriquez was convicted in 1968 of murder with malice and sentenced
to death.  After the statutory scheme under which his capital punishment was imposed was declared
unconstitutional under the 1972 Furman v. Georgia decision, Enriquez's sentence was commuted
to imprisonment for life. (1)
		Enriquez filed his present action complaining that the Board improperly reviewed him
for parole in 2006 with a two-thirds vote of the entire body and should have instead acted through
a three-member panel of the board.  Enriquez relied on section 508.045 of the government code,
which requires that "[e]xcept as provided by [government code] Section 508.046, board members
and parole commissioners shall act in panels composed of three in matters of:  (1) release on parole."
Tex. Gov't Code Ann. § 508.045(a) (West 2004).  Section 508.046, the exception to
section 508.045's three-member panel requirement, currently requires a two-thirds "extraordinary
vote" of the entire Board to release on parole an inmate who was convicted of certain sexual offenses
or who is required under section 508.145(c) of the government code to serve 35 calendar years
before becoming eligible for release on parole.  See id. § 508.046 (West Supp. 2009).  Although
Enriquez does not come within the current language of section 508.046, the Board took the position
that Enriquez is nonetheless governed by a prior version of the statute that required the two-thirds
"extraordinary vote" of the entire Board to parole "an inmate who was convicted of a capital felony."
See Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.01, 1997 Tex. Gen. Laws 327, 418, amended
by Act of May 25, 2005, 79th Leg., R.S., ch. 787, § 3, 2005 Tex. Gen. Laws 2705, 2705 (deleting
reference to inmates convicted of capital felonies); see also Act of May 25, 2005, 79th Leg., R.S.,
ch. 787, § 17, 2005 Tex. Gen. Laws 2705, 2709 (making amendments applicable solely to offenses
committed after effective date and continuing effect of prior law as to felonies committed before
that date).  Relevant to the issues he raises on appeal, Enriquez asserted liability theories that
included equal protection violations--he alleged that the Board singled him out based on his
Hispanic ethnicity in reviewing him for parole under section 508.046's "extraordinary vote"
procedures while using three-member panels to consider all other "similarly situated" inmates (i.e.,
those who were convicted of murder with malice prior to 1972 and whose death sentences were
commuted to life imprisonment).
		Enriquez sought discovery regarding the Board's consideration of parole for twenty-four inmates that he asserted were "similarly situated" to him, including production of the Board's
minutes from meetings in which a three-member panel considered parole for these "similarly
situated" inmates, and requesting that each inmate be identified by name, Texas Department of
Criminal Justice (TDCJ) number, offense, offense date, race, initial parole eligibility date, last parole
review date, and current parole status.  Enriquez also requested commitment inquiry data, including
the names of all inmates who had been convicted of murder with malice before 1973 but who had
been excluded from parole eligibility under section 508.045.  The district court ultimately ordered
Owens to produce the board minutes and the commitment inquiry data.  To the extent that Owens
claimed that any portions of the documents were privileged or confidential by law, Owens was to
submit them to the district court for in camera review and assert any privilege or confidentiality
claims in a privilege log served on Enriquez.  As for Enriquez's other discovery, the district court
ordered him to serve one request for admission to Owens inquiring whether he was being treated
differently from the other inmates with regard to full-board versus three-member panel review.  The
court further instructed that if Owens denied that Enriquez was being treated differently, she was
to provide the court specific examples of other inmates to whom the same procedure or policy is
applied.  Any such examples were to be submitted to the court for in camera review.
		Owens submitted a package of documents to the district court, including board
minutes and commitment inquiry data, for in camera review, along with a motion to seal, asserting
that the information was confidential under section 508.313 of the government code.  See Tex. Gov't
Code Ann. § 508.313 (West 2004) ("All information obtained and maintained [by the Board],
including a victim protest letter or other correspondence, a victim impact statement, a list of inmates
eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if
the information relates to:  (1) an inmate of the institutional division subject to release on parole").
Owens also provided Enriquez the information contained in the documents in a randomized chart
format.  The chart lists inmates in random order, without any identifying information, and indicates
whether each inmate was convicted of murder with malice, whether his sentence was commuted
from death to life in prison under Furman, and whether he is reviewed by the full panel under
section 508.046, as is Enriquez, or under a three-member panel under section 508.045.  The chart
shows that at least six similarly situated offenders are reviewed for parole under section 508.046,
as is Enriquez.
		After receiving the documents, the district court indicated that documents submitted
for in camera review would be retained by the court pending future motions to which those
documents would be relevant.  Owens thereafter filed a motion for summary judgment.  In support,
Owens attached the above-referenced chart as Exhibit A and the underlying documents, submitted
for in camera review, as Exhibit B.  Enriquez objected to both exhibits, and the district court
overruled these objections, explaining:

	The Defendant complied with the court's order of January 6, 2009 and provided
the court a privilege log and documents (Exhibit B, submitted for in camera
inspection only) properly authenticated by business records affidavits supporting
the information demonstrated in Exhibit A.  The court finds that the documents are
privileged pursuant to Section 508.313 of the Texas Government Code.


		On April 8, 2009, the district court also signed an order sealing the records, finding
them confidential pursuant to government code section 508.313.  See Id. § 508.313.  On April 24,
2009, the district court signed an order denying Enriquez's motion for summary judgment and
granting Owens's motion for summary judgment.  By this order, the court dismissed all claims
against Owens.  This appeal followed.

ANALYSIS
		In his first issue, Enriquez argues that the district court abused its discretion by
denying him discovery of the Board's minutes.  He urges that, contrary to the district court's rulings,
the minutes are not confidential under section 508.313 of the government code.
		Section 508.313 provides:

	(a)  	All information obtained and maintained, including a victim protest letter or
other correspondence, a victim impact statement, a list of inmates eligible for
release on parole, and an arrest record of an inmate, is confidential and
privileged if the information relates to:
 
		(1)  	an inmate of the institutional division subject to release on parole,
release to mandatory supervision, or executive clemency;

		(2) 	a releasee; or
 
		(3)  	a person directly identified in any proposed plan of release for an
inmate.


Id.  The documents requested by Enriquez were board meeting minutes and commitment inquiry
data.  Enriquez requested these documents because they contain parole information for other inmates
and parolees, the very information expressly made confidential by section 508.313.
		Enriquez relies on Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986),
arguing that Owens failed to present any evidence to substantiate her claims of privilege.  Enriquez
argues that Owens relied "solely on her cite to §508.313 to support her privilege motion," and,
according to Enriquez, there is no evidence that the documents requested and submitted for in
camera review do, indeed, contain such confidential information.  Contrary to Enriquez's assertion,
however, Weisel recognizes that documents submitted to a trial court in camera may constitute
the only evidence substantiating a claim of privilege.  See id.  The court in Weisel held that the
district court abused its discretion because it denied discovery without evidence to support the
claim of privilege and refused to conduct an in camera review.  Id. at 57-58.  Here, by contrast,
Owens submitted the requested documents to the court for in camera review, and, as discussed
above, the court conducted an in camera review and determined that those documents were
confidential under section 508.313.  Given the plain language of section 508.313, which makes the
requested inmate information confidential as to "an inmate of the institutional division subject to
release on parole," as is Enriquez, the district court acted within its discretion in denying discovery
of these documents.  See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009) (trial court
abuses its discretion in denying discovery only when it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law).  Accordingly, we overrule
Enriquez's first issue.
		In his second issue, Enriquez argues that the district court erred by making a "court
records" determination without giving notice to allow intervention.  Enriquez specifically refers to
Rule 76a(7), which provides:

	Continuing Jurisdiction. Any person may intervene as a matter of right at any time
before or after judgment to seal or unseal court records.  A court that issues a sealing
order retains continuing jurisdiction to enforce, alter, or vacate that order.  An order
sealing or unsealing court records shall not be reconsidered on motion of any party
or intervenor who had actual notice of the hearing preceding issuance of the
order, without first showing changed circumstances materially affecting the order.
Such circumstances need not be related to the case in which the order was issued.
However, the burden of making the showing required by paragraph 1 shall always be
on the party seeking to seal records.


According to Enriquez, "[t]he trial court was not free to make a 'court records' determination
without giving notice to allow intervention.
		Enriquez's issue is without merit.  At the time that the records were sealed, Enriquez
was a party to the litigation, not a potential intervenor.  He can, thus, show no harm.  See Tex. R.
App. P. 44.1(a).  Further, pursuant to the plain language of Rule 76a, the documents at issue were
not court records.  Rule 76a(2) provides:

	For purposes of this rule, court records means:

	(a) 	all documents of any nature filed in connection with any matter before any
civil court, except:

		(1) 	documents filed with a court in camera, solely for the purpose of
obtaining a ruling on the discoverability of such documents;

		(2) 	documents in court files to which access is otherwise restricted by
law;

		(3) 	documents filed in an action originally arising under the Family Code.


Tex. R. Civ. P. 76a(2)(a).
		As discussed above, access to the records at issue is expressly restricted by
section 508.313.  See Tex. Gov't Code Ann. § 508.313.  Pursuant to the plain language of the rule,
they are not court records, and are not subject to the requirements of Rule 76a.  Contrary to
Enriquez's assertion, nothing in Rule 76a requires public notice before the court makes an initial
determination that documents are not court records.  See Tex. R. Civ. P. 76a; General Tire v. Kepple,
970 S.W.2d 520, 524 (Tex. 1998).  Accordingly, we overrule Enriquez's second issue. 
		In his third issue, Enriquez argues that the parole board minutes are public records,
and, therefore, the district court abused its discretion by sealing those records.  He argues that his
agent, Yolanda Torres, requested and received copies of the board minutes that Owens claims
are confidential.  This voluntary disclosure, Enriquez argues, has waived any privilege that Owens
could have asserted.
		As discussed above, the records Enriquez seeks are unavailable to him under the
express language of section 508.313.  See Tex. Gov't Code Ann. § 508.313.  Contrary to Enriquez's
assertion, the district court did not make a finding that the requested documents were public records. 
And, even if it had, and even if the records are public, it remains that the express language of the
statute makes them unavailable to Enriquez through public information request or through discovery. 
See id.  In addition, Enriquez cannot show harm.  His waiver argument is based on the fact that his
agent was able to obtain the very documents he had requested.  He, thus, has access to the documents
and cannot argue that he has been harmed by the district court's sealing order.  See Tex. R. App. P.
44.1(a).  Accordingly, we overrule Enriquez's third issue.
		Having overruled each of Enriquez's issues, we affirm the judgment of the
district court.

 
						__________________________________________
						Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   April 14, 2010
1.   Enriquez's filings below reflect that he was also convicted of other murders in the 1960s
but has already discharged his sentences for those offenses. 

