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      .          .




                                      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
