Before the Presiding Judges of the Administrative
Judicial Regions
Per Curiam Rule 12 Decision
APPEAL NO.: 08-006
RESPONDENT: Suzanne Brooks, Judge,
Tim
Wright, Judge,
Don Higginbotham, Judge,
John
McMaster, Judge,
DATE: February 2,
2009
SPECIAL COMMITTEE: Judge Dean Rucker, Chairman;
Judge John Ovard; Judge Olen Underwood; Judge David Peeples; Judge Jeff Walker
Petitioner requested “any and all letters,
memorandums, correspondence, emails, letters and notes to and from the
Williamson County Attorney and the Williamson County Courts at Law responding
to, concerning, related to, and/or discussing the May 1, 2008 letter regarding
Stephen Ackley addressed to Hon. Dan A Gattis, County Judge, and signed by
County Court at Law Judges Don Higginbottam (sic), Tim Wright, Suzanne Brooks,
and John McMaster.” Judge Higginbotham
states that he does not have any documents responsive to the request. Judges Wright, Brooks, and McMaster have
identified three documents that are responsive to the request but have withheld
them claiming that they are privileged attorney-client communications under
Texas Rule of Evidence 503 and are also exempt from disclosure under the
provisions of Rules 12.3(a)(4), 12.5(i), 12.5(j), and 12.5(k) of the Rules of
Judicial Administration. The documents
were provided to us in camera and are
judicial records as defined by Rule 12.2(d).
We first address the question of whether the submitted
documents are privileged attorney-client communications under Texas Rule of
Evidence 503. The attorney-client
privilege protects confidential communications between or among clients, client
representatives, lawyers, and lawyer representatives that are made to further
the rendition of professional legal services.
Tex. R. Evid. 503(b)(1). Although the documents submitted are
communications from the county attorney to the judges, only two of the
documents appear to be related to litigation or made for the purpose of
facilitating the rendition of professional legal services. We find that these two documents are
attorney-client communications and are privileged under Texas Rule of Evidence
503(b)(1). Rule
12.3(a)(1)(c) provides that Rule 12 does not apply to
records that are subject to a rule of evidence.
Therefore, we can neither grant the appeal from the denial of these two
records nor sustain the denial of access to them and we need not address
whether the other exceptions raised by Respondents apply.
The third document provided by Respondents is a letter
from the county attorney to Judges Wright, Brooks and McMaster regarding the
letter that was submitted by the judges to County Judge Dan Gattis on May 1,
2008. It does not discuss or reference
ongoing litigation or attempt to render professional legal services. Therefore,
we find that it is not privileged under Texas Rule of Evidence 503. We must next consider whether the other Rule
12 exemptions raised by Respondents apply.
Respondents contend that they may withhold the
document under Rules 12.3(a)(4) and 12.3(b). These are not exceptions to disclosure;
rather they are provisions that make Rule 12 inapplicable to certain records
and place them outside the jurisdiction of this panel. We first address Rule 12.3(a)(4) which makes Rule 12 inapplicable to records to which
access is controlled by Chapter 552 of the Government Code, also known as the
Public Information Act (PIA), or another statute or provision of law. Respondents contend that the responsive
records are exempt from production under Section 552.103 of the Government
Code, the litigation exception of the PIA, and are therefore controlled by
Chapter 552 of the Government Code and that if Chapter 552 of the Government
Code controls them they do not have to be released pursuant to Rule
12.3(a)(4). However, Chapter 552 of the
Government Code specifically excepts the judiciary
from the PIA, and therefore makes Section 552.103 inapplicable to these
records. See Sec. 552.103(1)(B), Texas Government Code.
Therefore, Rule 12.3(a)(4) does not apply to
these records either.
Section 12.3(b) makes Rule 12 inapplicable to records
or information to which Chapter 552 of the Government Code is made inapplicable
by statute, rule, or other provision of law, other than Section
552.003(1)(B). The records at issue are
maintained by the courts and are judicial records. As records of the judiciary they are excepted
from Chapter 552 by Section 552.003(1)(B) and,
therefore, Rule 12.3(b) does not apply to these records.
Respondents also contend that the records may be
withheld under Rule 12.5(i) because their release would constitute an invasion
of the privacy of the judges, court personnel and former employees. Rule 12.5(i) exempts from disclosure any
record that is confidential or exempt from disclosure under a state or federal
constitutional provision, statute or common law. We have reviewed the record to determine if
its release would constitute an unwarranted governmental interference or
intrusion into those areas deemed to be within the zones of privacy or
constitute the tort of invasion of privacy and have found that it would not.
Respondents next contend that the document is exempt
under Rule 12.5(j), the litigation exception.
As discussed above, this document does not discuss nor is it related to
pending or anticipated litigation.
Therefore, this exception does not apply.
Lastly, Respondents contend that the document relates
to an investigation of any person’s character or conduct and is exempt from
disclosure under Rule 12.5(k). Though
the document is not solely related to an investigation of a person’s character
or conduct, some of the information contained in the letter refers to a complaint
about and the probable investigation of a person’s conduct. Therefore, we find that this information is
exempt from disclosure under Rule 12.5(k) and should be redacted prior to
release.
In summary, we can neither deny nor grant the petition
for access to the two documents that have been identified as attorney-client
privileged by this panel because they are not subject to Rule 12 and we grant
the petition for access to the third document except for the information
determined to be related to the investigation of a person’s conduct.