Harlandale ISD v. Cornyn
| Decision Date | 27 July 2000 |
| Citation | 25 S.W.3d 328 |
| Parties | (Tex.App.-Austin 2000) Harlandale Independent School District and its Board of Trustees, Appellants v. John Cornyn, Attorney General of the State of Texas, Appellee NO. 03-99-00745-CV |
| Court | Texas Court of Appeals |
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. 98-04238, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING
Before Justices Jones, Yeakel and Patterson
This case involves the scope of the attorney-client privilege in the context of a request under the Texas Public Information Act. Harlandale Independent School District and its Board of Trustees ("Harlandale") filed suit against the Attorney General seeking a declaratory judgment that a retained attorney's investigative report of a campus police officer's grievance is excepted from public disclosure. The district court denied Harlandale relief. We reverse the district court order and render judgment in favor of Harlandale.
On March 7, 1997, a female police officer employed by the Harlandale campus police department reported to Corporal Kenneth Hannah that she had been assaulted earlier that day by Sergeant Juan Villarreal. Harlandale Police Chief Ben Hart reviewed the complaint and determined that there was no evidence of assault. On April 28, 1997, the female officer filed a formal grievance reurging her assault complaint and also alleging that Sergeant Villarreal had subjected her to sexual harassment. After an investigation, Harlandale concluded that while the evidence was not sufficient to substantiate all of the complainant's allegations, there was sufficient evidence to support her claim that Villarreal had made inappropriate and demeaning comments to her in the workplace. Harlandale sent a letter of reprimand to Villarreal and placed a copy of the letter in his employment file.
After receiving the reprimand letter, Villarreal filed a formal grievance with Harlandale contending that he had been unable to adequately defend himself from the complainant's allegations because Harlandale had failed to provide him proper notice of the allegations and had limited his access to relevant information and witnesses. In an August 22, 1997 letter to Harlandale, Villarreal reiterated his prior complaints, made additional complaints about the Harlandale Board of Trustees, and stated that if any adverse action was taken against him as a result of his complaints, he would consider it retaliation by Harlandale.
On September 12, 1997, Harlandale hired attorney Peggy Pou to review Villarreal's complaints and to provide her legal analysis. The retention letter states:
The Board of Trustees have determined that they would like for you to investigate all the allegations made by the author of the complaint. After the fact-finding has been completed, the Board of Trustees would like to receive your legal analysis of the matters investigated. This legal analysis would include the legal liabilities and consequences facing the School District and the Board of Trustees.
Pou conducted interviews and prepared a report. On January 5, 1998, a San Antonio Express- News reporter requested Pou's report pursuant to the Public Information Act. See Tex. Gov't Code Ann. §§ 552.001-.353 (West 1994 & Supp. 2000). The initial request asked for "copies of any correspondence, letters, memos, including the final report from Peggy Pou on the investigation of police Sgt. Juan Villarreal's grievance filed at Harlandale School District Aug. 22." The reporter later narrowed the scope of the request to include only Pou's written report and the exhibits attached to the report.
On January 20, 1998, Harlandale requested an opinion from the Open Records division of the Attorney General's office regarding whether Pou's report was required to be disclosed to the newspaper reporter. In an informal letter opinion designated OR98-0930, the Attorney General ruled that extensive portions of the report are subject to disclosure because they consist of "factual information compiled by an attorney acting as an investigator."1 The Attorney General did not require Harlandale to disclose the portions of the report designated as Pou's legal advice or opinions.2
Harlandale filed suit for declaratory relief to challenge the Attorney General's ruling. After a bench trial at which no testimony was received, the district court affirmed the Attorney General's decision. In an eleven-page opinion, the district court rejected Harlandale's contention that the facts in Pou's report should be excepted from disclosure because they are presented in connection with her legal opinions. The court concluded that the report is "in part a summary of Ms. Pou's factual investigation and in part a legal opinion memorandum," and that the factual and legal portions are, for the most part, distinct from each other. Harlandale appeals the district court order, arguing that Pou's entire report is excepted from disclosure by sections 552.101, 552.103, and 552.107 of the Public Information Act. See Tex. Gov't Code Ann. §§ 552.101, .103, .107 (West 1994 & Supp. 2000).
Declaratory judgments are reviewed under the same standards as other judgments or decrees. See Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (West 1997). Because the trial court did not make findings of fact and conclusions of law,3 we presume the court found all fact questions in support of its judgment, and we must affirm the judgment on any valid legal theory finding support in the pleadings and evidence. See Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984).
The Texas Public Information Act states, "[I]t is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees." Tex. Gov't Code Ann. § 552.001 (West 1994) ("the Act").4 The Act mandates a liberal construction to implement this policy and one that favors a request for information. See id.; see also City of Garland v. Dallas Morning News, 43 Tex. Sup. Ct. J. 303, 304 (Jan. 13, 2000). Section 552.021 of the Act provides that "[p]ublic information is available to the public at a minimum during the normal business hours of the governmental body." Id. § 552.021 (West Supp. 2000).
Upon a request for public information, a governmental body's officer for public records must promptly produce the information for inspection or duplication, or both. See id. § 552.221. The Act provides specific categories of public information, including "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body . . . ." Id. § 552.022. But information is not subject to required disclosure if the Act specifically excepts it from required disclosure. See id. §§ 552.101-.123 (West 1994 & Supp. 2000).
An exception to the general availability of public information is found in section 552.101, which provides, "Information is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101 (West 1994). Section 552.103 excepts from disclosure information "relating to litigation . . . to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision,as a consequence of the person's office or employment, is or may be a party" and that "the attorney general or the attorney of the political subdivision has determined should be withheld from public inspection." Act of May 4, 1993,73d Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 600. Section 552.107(1) excepts from disclosure "information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct." Id. § 552.107(1) (West Supp. 2000).5
In its first issue, Harlandale argues that Pou's report in its entirety is subject to section 552.107(1)'s exception to disclosure because it is confidential under Rule 503 of the Texas Rules of Evidence. Harlandale contends that the district court's implied finding that Pou was functioning in a dual role as both an investigator and an attorney "is not legally and factually supported by the evidence." The implied finding is significant because of its impact on the application of attorney-client privilege. The privilege protects from disclosure only those confidential communications between a client and his or her attorney "made for the purpose of facilitating the rendition of professional legal services to the client . . . ." Tex. R. Evid. 503(b)(1).6 By shielding such communications from disclosure, the attorney-client privilege allows "unrestrained communication and contact between an attorney and client in all matters in which the attorney's professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding." Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996) (citing West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978)).7
Attorney-client privilege therefore does not apply to communications between a client and an attorney where the attorney is employed in a non-legal capacity, for instance as an accountant, escrow agency, negotiator, or notary public. See, e.g., Clayton v. Canida, 223 S.W.2d 264, 266 (Tex. Civ. App.--Texarkana 1949, no writ); Pondrum v. Gray, 298 S.W. 409, 412 (Tex. Comm'n App. 1927, holding approved).8 The Attorney General responds to Harlandale's first issue by asserting that because Pou was not acting as an attorney in furtherance of the rendition of...
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