                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00188-CV

CHRIS RAESZ                                                            APPELLANT

                                         V.

CYNTHIA MITCHELL, COUNTY                                                APPELLEE
CLERK


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         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                                    OPINION

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                        I. Introduction and Background

      Appellant Chris Raesz, an attorney, requested a copy of two exhibits from

a Denton County criminal proceeding to which he was neither a party nor an

attorney representing a party.    Appellee Cynthia Mitchell, the Denton County

Clerk, did not comply with Appellant’s request. Appellant then initiated this suit in

the trial court for a writ of mandamus that would compel Appellee to provide him

copies of the requested exhibits. The trial court denied Appellant’s application for
a writ of mandamus and issued findings of fact and conclusions of law. This

appeal followed.

      Appellant contends in one issue that the trial court erred by denying his

application because all records kept by the county clerk, other than records

sealed or made confidential by law, are to be made available to the public for

copy and inspection. We affirm.

                             II. Standard of Review

      Our supreme court has explained the standard for obtaining a writ of

mandamus against a public official as follows:

              A writ of mandamus will issue to compel a public official to
      perform a ministerial act. An act is ministerial when the law clearly
      spells out the duty to be performed by the official with sufficient
      certainty that nothing is left to the exercise of discretion.
      Furthermore, a writ of mandamus will not issue to compel a public
      official to perform an act which involves an exercise of discretion.
      However, this rule is not without exception—a writ of mandamus
      may issue in a proper case to correct a clear abuse of discretion by
      a public official.

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (citations

omitted).

      Because this appeal follows the trial court’s denial of Appellant’s petition

for writ of mandamus, it differs from a mandamus action initiated in a court of

appeals as an original proceeding. Id. at 792 n.1.

      An action for a writ of mandamus initiated in the trial court is a civil
      action subject to appeal as any other civil suit. We therefore review
      the trial court’s findings of fact and conclusions of law in accordance
      with the standards generally applicable to a trial court’s findings and
      conclusions. That is, we review findings of fact for legal and factual


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      evidentiary support, and we review conclusions of law de novo. We
      do not apply the abuse of discretion standard applicable to
      mandamus actions that originate in our appellate courts.

Simmons v. Kuzmich, 166 S.W.3d 342, 345–46 (Tex. App.—Fort Worth 2005, no

pet.) (citations omitted).

                                 III. Discussion

      The parties do not dispute that Appellant made an oral request for a copy

of the two exhibits from the criminal proceeding and that Appellant was at that

moment prepared to pay for copies, nor do they dispute that Appellee did not

give Appellant the requested copies. 1 Appellant contends that local government

code section 191.006 obligates Appellee to provide him a copy of the exhibits he

requested. Appellee counters that exhibits from criminal proceedings are treated

differently than paper filings and that no law obligates a county clerk to make

criminal exhibits available to the public for inspection or copy. Appellee argues

that the court reporter, not the clerk, is statutorily charged with providing copies

of trial transcripts and exhibits to the public and that Appellant should direct his

request for exhibits to the court reporter. To support her contentions, Appellee

cites article 2.21 of the code of criminal procedure and government code section

52.047.




      1
       We also note that Appellee does not argue that she did not have the
exhibits at the time of Appellant’s request.


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A. Applicable Law

      Section 191.006 of the local government code states, “All records

belonging to the office of the county clerk to which access is not otherwise

restricted by law or by court order shall be open to the public at all reasonable

times. A member of the public may make a copy of any of the records.” Tex.

Loc. Gov’t Code Ann. § 191.006 (West 2008).

      Code of criminal procedure article 2.21 describes the duties of district and

county clerks with regard to papers and exhibits in criminal proceedings. See

Tex. Code Crim. Proc. Ann. art. 2.21 (West Supp. 2012). Subsections (a)(1) and

(2) require that the clerk of a district or county court “receive and file all papers”

and “receive all exhibits at the conclusion of the proceeding.” Id. art. 2.21(a)(1),

(2). Other parts of article 2.21 describe the procedure for disposal of eligible

exhibits through destruction, sale, or release to the owner of the exhibit. 2 Id. art.

2.21(d)–(j). Nothing within article 2.21 addresses requests from the public for a

copy of an exhibit. See id. art. 2.21.

      Government code section 52.047 provides that a person may request, pay

for, and obtain a copy of a transcript and exhibits for trial proceedings from the

court reporter, and that section provides that the court reporter may charge

additional fees for reproducing exhibits. See Tex. Gov’t Code Ann. § 52.047(a)–


      2
        Although not relevant here, article 2.21 also provides for the transfer of
certain exhibits such as firearms and contraband to law enforcement personnel
for safekeeping. See Tex. Code Crim. Proc. Ann. art. 2.21(b).


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(f) (West 2013).   Although not cited by Appellee, section 52.046(a)(5) of the

government code states, “On request, an official court reporter shall: . . . (5)

furnish a transcript of the reported evidence or other proceedings, in whole or in

part, as provided by this chapter.” Id. § 52.046(a)(5) (West 2013).

B. Analysis

      We must determine whether the law imposes upon Appellee, who is the

Denton County Clerk, a ministerial duty to provide copies of a criminal exhibit to a

member of the public. See generally Anderson, 806 S.W.2d at 793–94. If the

law imposes such a duty, the trial court should have granted Appellant’s petition

for writ of mandamus. See id. Because we have not been asked to decide

whether the requested exhibits are restricted from public disclosure, the

dispositive question is whether an exhibit offered into evidence in a criminal

proceeding that has been received (but not filed) by the county clerk belongs to

the county clerk. See Tex. Code Crim. Proc. Ann. art. 2.21(a)(2); Tex. Loc. Gov’t

Code Ann. § 191.006.

      We conclude that local government code section 191.006 does not

obligate the clerk to make an exhibit from a criminal proceeding available to a

member of the public for copy and inspection. A clerk is obligated to receive and

file all “papers” in a case, but the clerk only receives exhibits and retains them

until they are disposed of by destruction or sale or released to the actual owner

by order of the court. See Tex. Code Crim. Proc. Ann. art. 2.21(a)(1), (2), (d)–(j).

Article 2.21 thus distinguishes between papers and exhibits involved in a criminal


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proceeding and designates the clerk as the temporary holder of exhibits. See id.

Indeed, although the exhibits at issue here are apparently paper copies of the

originals, an unknowable percentage of trial or hearing exhibits from criminal

proceedings are items of personal property.          While article 2.21 includes a

process for return of exhibits to their owners, article 2.21 is silent as to whether

the clerk must make an exhibit available to the public for inspection and copy

before the exhibit is destroyed, sold, or returned to its owner. See id. art. 2.21.

      The law does, however, provide a process through which a member of the

public may obtain a copy of an exhibit. See Tex. Gov’t Code Ann. §§ 52.046–

.047. Government code sections 52.046 and 52.047 obligate a court reporter to

provide a copy of an exhibit upon written request and payment of the applicable

fee. See id. And other than requiring a written request and payment from the

requestor, neither section 52.046 nor section 52.047 limits or otherwise restricts

the court reporter’s duty to provide a copy of an exhibit to a person requesting it.

See id. In other words, a court reporter’s duty to provide a copy of an exhibit in a

criminal proceeding does not end once the exhibit has been transferred to and

received by the clerk. See id.

      From these authorities, Texas law provides an avenue by which a person

may request and receive a copy of an exhibit offered in a criminal proceeding.

And although it is more burdensome for a person to request a copy of an exhibit

from a court reporter, who must then retrieve the exhibit from the county clerk,

than it is for a person to obtain a copy of the exhibit directly from the county clerk,


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the legislature chose to limit a county clerk’s obligation to make records available

to the public for inspection and copy to those “records belonging to the office of

the county clerk.” Tex. Loc. Gov’t Code Ann. § 191.006. The legislature also (1)

differentiated between papers that are filed with a clerk and exhibits that are

received by the clerk at the conclusion of a criminal proceeding, (2) did not

expressly require that a clerk make exhibits received from the court reporter

available to the public, and (3) provided a distinct process by which a person may

obtain a copy of an exhibit from the court reporter. See Tex. Code Crim. Proc.

Ann. art. 2.21; Tex. Gov’t Code Ann. §§ 52.046–.047.           Had the legislature

intended to require that both a court reporter and a county clerk provide a copy of

an exhibit in a criminal proceeding to a member of the public, the legislature

could have easily done so. See generally In re Office of Atty. Gen., No. 11-0255,

2013 WL 854785, at *4 (Tex. Mar. 8, 2013) (orig. proceeding) (“We take the

Legislature at its word, and the truest measure of what it intended is what it

enacted.”). Because the legislature did not do so, we hold that Appellee does not

have a ministerial duty to provide Appellant with a copy of the requested exhibits

from the criminal proceeding and that the trial court therefore did not err by

denying Appellant’s petition for writ of mandamus. We overrule Appellant’s sole

issue.




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                             IV. Conclusion

     Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.



                                       ANNE GARDNER
                                       JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 29, 2013




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