Holmes v. Morales

Decision Date14 June 1996
Docket NumberNo. 95-1251,95-1251
Citation924 S.W.2d 920
Parties39 Tex. Sup. Ct. J. 779 John B. HOLMES, Jr., Harris County District Attorney, Petitioner, v. Dan MORALES, Attorney General of Texas, Respondent.
CourtTexas Supreme Court

William J. Delmore, III, Houston, for Petitioner.

Diane Weidert Morris, Austin, for Respondent.

BAKER, Justice.

John B. Holmes, Jr., the Harris County District Attorney, filed this action in the trial court seeking a declaratory judgment that the Texas Open Records Act does not require a prosecutor to disclose "closed" criminal litigation files. The trial court found that the Open Records Act required disclosure, and the court of appeals affirmed. Holmes asserts that the Act categorically excepts his "closed" files from disclosure. We agree. We hold that section 552.108 of the Texas Government Code (The Open Records Act) excepts Holmes' "closed" files from disclosure. Accordingly, we reverse the court of appeals' judgment.

I. BACKGROUND FACTS

Holmes maintains a large number of files on individuals who are or have been under investigation for criminal offenses. Some files are "active" and concern on-going investigations or prosecutions. Others are "closed" and concern cases that Holmes never prosecuted or prosecuted to a conclusion, including post-conviction appellate review.

Fourteen individuals made Open Record requests for information from some of the "closed" files. Holmes asked Attorney General Morales for an opinion on whether the Open Records Act compelled disclosure of the information in those files. General Morales determined that the Act required disclosure of all or part of each file. Holmes sued for declaratory judgment, naming General Morales and the fourteen individuals as defendants. He based his action on both the Uniform Declaratory Judgment Act and the special provision for declaratory relief in the Open Records Act. By taking non-suits, Holmes reduced the number of defendants to ten, including General Morales.

II. PROCEDURAL HISTORY
A. The Trial Court

Holmes sought a summary judgment on the grounds that: (1) the district attorney was not a "governmental body" under the Open Records Act; (2) Sections 552.101, 552.103 and 552.108 categorically except parts of his files not previously revealed to the public from disclosure in their entirety, after conclusion of the litigation for which they were created; and (3) applying the Act to the files violates Art. II, § 1, of the Texas Constitution. General Morales filed a competing motion for summary judgment. General Morales argued that no further litigation was "reasonably anticipated" and that Holmes could not show that disclosure would "unduly interfere with law enforcement." The district court denied Holmes' motion and granted General Morales' motion, directing Holmes to disclose virtually all the files in question.

B. The Court of Appeals

The court of appeals affirmed the trial court's judgment. That court held that the district attorney is an officer of the executive branch of government and, therefore, subject to the Open Records Act. The court of appeals further determined that applying the Act to a prosecutor's litigation files did not violate Art. II, § 1 of the Texas Constitution. The court of appeals did not consider Holmes' statutory construction arguments because it found "the absence of an appellate controversy." 906 S.W.2d 570, 575. It reasoned that the trial court correctly denied declaratory relief about whether §§ 552.101, 552.103 & 552.108 applied beyond the specific files in question, because "the facts were undisputed and no appellate controversy is raised on appeal." 906 S.W.2d at 575.

C. Is There An Appellate Controversy?

Holmes is not asking for an advisory opinion about other unspecified files, as the court of appeals suggests. Rather, he seeks a declaratory judgment about the files he specifically describes in his summary judgment proof. Holmes argued in both his motion for summary judgment and in his court of appeals brief that his closed files were categorically exempt from disclosure. If Holmes' argument prevailed, he would not have to produce the files at issue here. Therefore, his arguments were properly before the court of appeals.

When both parties move for summary judgment, the non-prevailing party may appeal both the prevailing party's motion as well as its own. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The court of appeals may affirm the trial court's summary judgment or reverse and render judgment on the non-prevailing party's motion. Strauss, 745 S.W.2d at 900. Consequently, both General Morales' and Holmes' motions were properly before the court of appeals.

Before we construe the statute's exclusionary provisions, we first consider whether district attorneys are governmental bodies subject to the Open Records Act.

III. IS THE DISTRICT ATTORNEY EXCLUDED FROM THE OPEN RECORDS ACT?

General Morales relies on Etheridge v. State, 903 S.W.2d 1 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 116 S.Ct. 314, 133 L.Ed.2d 217 (1995), asserting that a district attorney is a government body within the meaning of the Open Records Act. Additionally, he argues that the Legislature created the Harris County District Attorney's Office and section 43.180 of the Texas Government Code defines its powers.

Holmes argues that district attorneys are within the "judiciary department" of state government. He premises his argument on the basis that because Article V of the Texas Constitution is entitled the "judicial department," and because § 21 mentions "district attorneys," the Harris County district attorney is a member of the "judiciary." Holmes implies that the word "judiciary," as used in section 552.003(b) and the term "judicial department" at the head of Article V of the Texas Constitution are synonymous.

The Open Records Act's core provision provides that the public is entitled to information "collected, assembled, or maintained by a governmental body." TEX. GOV'T CODE § 552.021. A governmental body includes an "office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members." See TEX. GOV'T CODE § 552.003(a)(1). However, section 552.003(b) states that "governmental body" does not include the judiciary. See TEX. GOV'T CODE § 552.003(b).

We reject Holmes' theory that judicial department and judiciary are synonymous. The court of appeals correctly concluded that the district attorney's office is not included in the meaning of "judiciary" because the Texas Constitution invests no judicial power in that office. 906 S.W.2d at 573. Rather, section 1, Article V specifically vests the judicial power in the courts. TEX. CONST. art. V, § 1. Article V, section 1 provides:

The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace and in such other courts as may be provided by law.

TEX. CONST. art. V, § 1. "Judicial power," embraces powers to hear facts, to decide issues of fact made by pleadings, to decide questions of law involved, to render and enter judgment on facts in accordance with law as determined by the court, and to execute judgment or sentence. Kelley v. State, 676 S.W.2d 104 (Tex.Crim.App.1984); Black v. Dallas County Bail Bond Bd., 882 S.W.2d 434 (Tex.App.--Dallas 1994, no writ). The Harris County District Attorney does not perform these functions. Therefore, we cannot conclude that the Legislature intended to include the district attorney's office in the word "judiciary." Moreover, article V, section 21 states that a district attorney's duties "shall ... be regulated by the Legislature." TEX. CONST. art. V, § 21. Accordingly, we affirm the court of appeals' holding that the Harris County District Attorney's office is a "governmental body" within the meaning of the Open Records Act and is, therefore, subject to its provisions.

IV. THE OPEN RECORDS ACT

The Open Records Act contains specific exceptions from compelled disclosure of certain information relating to litigation, certain law-enforcement and prosecutors' records, and information expressly made confidential by law. TEX. GOV'T CODE §§ 552.101, 552.103, and 552.108.

The Act excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." TEX. GOV'T CODE § 552.101.

The Act excepts any documents relating to litigation of a criminal nature from disclosure. It provides:

(a) Information is excepted from the requirements of Section 552.021 if it is information:

(1) relating to litigation of a civil or criminal nature or settlement negotiations, 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

(2) that the attorney general or the attorney of the political subdivision has determined should be withheld from public inspection.

(b) For purpose of this section, the state or political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and post conviction remedies in state and federal court.

TEX. GOV'T CODE § 552.103.

The Act excepts records of law enforcement agencies and prosecutors. It provides:

(a) A record of a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021.

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021.

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