Conely v. Peck

• Decision Date: 11 September 1996
• Docket Number: No. 03-95-00289-CV,03-95-00289-CV
• Citation: 929 S.W.2d 630
• Parties: Patrick CONELY, Appellant, v. Leonard PECK and Bruce Zeller, Appellees.
• Court: Texas Court of Appeals

Page 630

929 S.W.2d 630

Patrick CONELY, Appellant, v. Leonard PECK and Bruce Zeller, Appellees.

No. 03-95-00289-CV.

Court of Appeals of Texas Austin.

Sept. 11, 1996.

Rehearing Overruled Oct. 23, 1996.

Patrick Conely, Gatesville, Pro Se.

Dan Morales, Attorney General, Catherine Gillis, Assistant Attorney General, Law Enforcement Defense Division, Austin, for Appellees.

Before POWERS, JONES and B.A. SMITH, JJ.

PER CURIAM.

Appellant Patrick Conely appeals a take-nothing summary judgment in his suit against appellees Leonard Peck and Bruce Zeller under the Texas Open Records Act. 73d Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 594-607 (Tex. Gov't Code Ann. §§ 552.001-.353, since amended). ¹ We will affirm the trial court's summary judgment.

The summary-judgment record shows that Conely, an inmate at the Hughes Unit of the Texas Department of Criminal Justice--Institutional Division (the Department), asked in writing to see his central file. Zeller, then responsible for processing records in the Classification and Records Department, responded that the central file, located in Huntsville, would not be brought to Conely, but that he could request copies, which Zeller would send him for a fee. Conely objected to this "denial" by writing to the Department's Legal Affairs Division. Peck, an assistant general counsel for the Department, referred Conely's objection to Zeller, who responded as before that the central file would not be brought to Conely, but that Conely could buy copies on request. Conely sued for a writ of mandamus, alleging that he had a right to inspect his central file in person and that the file was brought to the Hughes Unit every three months for his administrative segregation hearing.

In his third point of error, Conely asserts that the trial court erroneously rendered summary judgment denying his request that Zeller and Peck be compelled to make his central file available at the Hughes Unit. To prevail on their motion for summary judgment, Zeller and Peck had to prove that no genuine issue exists as to any material fact and that they are entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In reviewing a summary judgment, we must accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985).

Zeller and Peck asserted as a ground for summary judgment that nothing in the Act requires them to transport the records to Conely or to transport him to the records to facilitate his inspection. In his affidavit accompanying the motion, Zeller states that the Department stopped taking the central file to administrative segregation hearings at the Hughes Unit in November 1992. Conely, however, asserts in his own affidavit that he knew what the central file looked like and that his central file was present at a hearing at the Hughes Unit on October 9, 1994.

This Court cannot resolve factual disputes or make determinations of credibility in reviewing a summary judgment. We therefore accept Conely's version of the facts and consider instead simply whether Peck and Zeller were required to make the central file available to Conely at the Hughes Unit during administrative segregation hearings.

An officer for public records of a governmental body must promptly produce public information for inspection, duplication, or both, in the offices of the governmental body on application by any person to the officer. Former § 552.221(a). The Act requires only that the officer in charge of public records make them available for review within the offices of the governmental body. Temporarily transporting records outside the office for official use does not trigger a duty under the Act to make the records available to the public wherever they may be. The Act provides, in fact, that when requested information is temporarily unavailable because it is in active use the officer shall certify that fact in writing to the applicant and set a time when the record will be available. Former § 552.221(b). The requirement that the officer give a person requesting records "all comfort and facility" for exercising his statutory rights does not impose a duty to transport records to that person or to make transported records available at sites outside the governmental body's offices. See former § 552.224. Zeller and Peck established as a matter of law that they were not required to produce Conely's central file outside the offices of the Classification and Records Department.

Conely additionally asserts under this point that Zeller and Peck failed to request an attorney general's decision within ten days of receiving his request. See former § 552.301(a). The requirement to request a decision comes into play only when the governmental body receives a request for information that it considers to be subject to an exception under the Act. Id. Here, Zeller and Peck did not assert any...