Euresti v. Valdez

• Decision Date: 23 February 1989
• Docket Number: No. 13-88-529-CV,13-88-529-CV
• Citation: 769 S.W.2d 575
• Parties: Benjamin EURESTI, Jr., in his Official Capacity as Cameron County Attorney, Relator, v. The Honorable Rogelio "Roy" VALDEZ, in his Official Capacity as Presiding Judge of the 357th Judicial District Court of Cameron County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 575

769 S.W.2d 575

Benjamin EURESTI, Jr., in his Official Capacity as Cameron County Attorney, Relator, v. The Honorable Rogelio "Roy" VALDEZ, in his Official Capacity as Presiding Judge of the 357th Judicial District Court of Cameron County, Texas, Respondent.

No. 13-88-529-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 23, 1989.

Rehearing Denied March 30, 1989.

Benjamin Euresti, Jr., Rene B. Gonzalez, County Attorney's Office, Brownsville, for relator.

Jerrold R. Davidson, Brownsville, Gary L. Gurwitz, Atlas & Hall, McAllen, for respondent.

Before NYE, C.J., and SEERDEN, and DORSEY, JJ.

OPINION

SEERDEN, Justice.

In this mandamus proceeding the respondent, a district judge, ordered relator, the Cameron County Attorney, to give certain documents to the real party in interest, Kip Van Johnson Hodge, a plaintiff in a civil action. Relator attempts to have this order vacated.

The underlying suit, Kip Van Johnson Hodge v. Browning-Ferris Industries, Inc., Jim Meszaros and Richard H. Freed, No. 03-88-1148E, filed March 10, 1988 in the 357th District Court of Cameron County, Texas, is a malicious prosecution action. Hodge, a former city attorney for the City of Brownsville, alleges in his petition that Meszaros and Freed, as employees of Browning-Ferris Industries, Inc. (BFI), knowing that no probable cause existed, and motivated by malice, gave false, misleading testimony to a grand jury, causing it to indict Hodge for official misconduct. The petition states that the indictment alleged that Hodge, in his official capacity as city attorney, intentionally and knowingly distributed confidential information, the contents of BFI's proposal for waste collection and disposal, giving an advantage to BFI's competitors. The petition further states that the indictment was returned on or about February 25, 1987, that it was dismissed on March 30, 1987, and that on or about April 8, 1987, a Cameron County grand jury no-billed Hodge concerning essentially the same charges.

On April 27, 1988, Hodge filed a motion in the civil suit to obtain discovery and production of particular items from the Cameron County District Attorney. He requested to examine a transcript of the statements of all witnesses before the grand jury which indicted him and all documents, photographs, and other tangible items exhibited to the grand jury.

Hodge asserted a "particularized need" in his motion, stating that time has elapsed between the present trial and the date on which the indictment was filed, that the witnesses' testimony is material to his case and necessary for complete discovery, that the credibility of the testimony given to the grand jury is in serious doubt, and that a second grand jury no-billed him, presumably on the same testimony and exhibits. Hodge further supports his contention of "particularized need" by alleging that the indicting grand jury's foreman leaked information to the media and made several public statements about him concerning testimony before the grand jury.

On June 9, 1988, the relator filed a response in which it argued that the items were not subject to the Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp.1988), that the need for secrecy in conducting prosecutions outweighed any "particularized need," and that "particularized need" was irrelevant in a civil proceeding (as the items were absolutely privileged). Relator also argued against disclosure of investigative files, in general, although there is no request for discovery of anything in Hodge's motion that was not presented to the grand jury. Both parties filed additional papers supporting their positions.

On June 29, 1988, Hodge filed another request enumerating particular matters which he wanted to discover. Hodge listed "information given the grand jury by" specific, named witnesses.

The trial judge (respondent) ordered relator to provide the files for its in camera inspection, and then issued an order listing transcripts of specific testimony and statements of particular named individuals to be delivered to Hodge's attorney. All of the material ordered discovered had been given to the grand jury that indicted Hodge. The trial court ordered the information to be used solely in the underlying cause and for no other purpose.

The issue presented on mandamus is whether the trial court abused its discretion in concluding that the documents were discoverable. Barnes v. Whittington, 751 S.W.2d 493, 494 (Tex.1988) (orig. proceeding). In considering whether an abuse of discretion occurred, this Court must determine if the party asserting the privilege has discharged its burden of proof. As the Supreme Court held in Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635, 637 (Tex.1985), a privilege must be established to justify an exception to the general rule of discovery. The party claiming the privilege bears the burden of showing that the documents in question qualify for the privilege as a matter of law. Barnes, 751 S.W.2d at 494; Giffin v. Smith, 688 S.W.2d 112, 114 (Tex.1985); Tex.R.Civ.P. 166b 4.

In this case, Hodge followed the procedure set out in Rule 166b 1. Relator sought protection from disclosure under Rule 166b 3.e., arguing that grand jury testimony is privileged. It argues, in effect, that although, in a criminal case, a defendant may discover communications to a grand jury on a showing of particularized need, McManus v. State, 591 S.W.2d 505, 523 (Tex.Crim.App.1979); Reado v. State, 690 S.W.2d 15, 18 (Tex.App.--Beaumont 1984, pet. ref'd), those communications are absolutely privileged from discovery in a civil case. Neither relator's documents, brief, nor his argument point out any particular damage anticipated to law enforcement by revealing this particular information. In fact, relator's oral argument before this Court stressed that production would violate office "policy" and that violation of this policy of confidentiality might foster further reluctance of informants and witnesses to come forward, thus generally hampering law enforcement. However, nothing before us indicates that the case in question was still being investigated or that any of the information sought involved an active file. Nor was there any attempt to demonstrate any specific need for secrecy of the particular information ordered discovered.

We agree with respondent that the Open Records Act does not apply. Tex.Rev.Civ.Stat.Ann. art. 6252-17a, § 2(1) defines a "governmental body," the subject of the act, without including grand juries. Moreover, grand juries are an arm of the judiciary. See Tex.Code Crim.Proc.Ann arts. 19.01, 19.02 (Vernon Supp.1989). Thus, under § 2(1)(G) of the Open Records Act, they are excluded from coverage. However, the fact that the Open Records Act does not apply does not create a privilege.

Relator claims that Stewart v. McCain, 575 S.W.2d 509, 511-12 (Tex.1978) and Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex.1977) make it clear that items which statutes exempt from disclosure are exempt from discovery. There is nothing in the Open Records Act that indicates that items not covered in the Act are exempt from discovery.

Relator contends that its investigative files are confidential because of a privilege to withhold informants' identities from disclosure, citing Roviaro v. U.S., 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). However, the record contains no evidence that any confidential informant would be revealed by the requested disclosure in this case. Moreover, the court's order grants disclosure only of information given the grand jury by persons Hodge's request specifically names.

Relator cites Hott v. Yarborough, 112 Tex. 179, 245 S.W. 676, 678 (Tex.Comm'n App.1922, opinion adopted) and Ex parte Port, 674 S.W.2d 772, 779 n. 8 (Tex.Crim.App.1984) for its contention that communications to grand juries are "absolutely privileged." Port concerns a refusal to testify, and its dictum that communication to a grand jury is "absolutely privileged" is based on Hott and on Quarles v. State, 385 S.W.2d 395, 397 (Tex.Crim.App.1964), cert. denied, 382 U.S. 829, 86 S.Ct. 65, 15 L.Ed.2d 73 (1965). Quarles concerns the admissibility, rather than the discoverability, of grand jury testimony. Id., 385 S.W.2d at 397. Hott is a libel and slander case in which the Court held that a communication to a grand jury, like testimony in a judicial proceeding, cannot be the basis of a libel or slander action. Use of the word "privileged" there means that the witness is immune from liability because of any defamatory aspects of his testimony, not that the testimony cannot be discovered.

The Hott court notes that communications to a grand jury are by law secret, and this confidentiality theoretically protects the subject of the communication. Hott, 245 S.W. at 679. However, the rule that publications or statements made in the course of judicial proceedings cannot be made the basis of a libel or slander action does not apply to malicious prosecution actions. Suhre v. Kott, 193 S.W. 417, 419 (Tex.Civ.App.--San Antonio 1917, no writ); see also Gulf Atlantic Life Insurance Co. v. Hurlbut, 696 S.W.2d 83, 99 (Tex.App.--Dallas 1985), supplemented at, 749 S.W.2d 96, rev'd sub nom, Hurlbut v. Gulf Atlantic Life Insurance Co., 749 S.W.2d 762 (Tex.1987). A difference in the elements of libel and slander and of malicious prosecution explains why confidentiality does not apply in malicious prosecution actions.

The elements of malicious prosecution are (1) the commencement of a criminal prosecution against plaintiff, (2) which was caused by the defendant or through the defendant's aid and cooperation, (3) which terminated in plaintiff's favor, (4) that plaintiff was innocent, (5) that there was no probable cause for the proceedings, (6) that it was done with malice, and (7) that it damaged the plaintiff. Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.--Corpus Christi 1988, writ denied).

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