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NO. _____________
TOMMY ADKISSON,
INDIVIDUALLY AND OFFICIALLY
ON BEHALF OF BEXAR COUNTY,
TEXAS, AS COUNTYCOMMISSIONERPCT.4
Plaintiffs
v.
GREG ABBOTT, ATTORNEY
GENERAL OF TEXAS,
Defendant
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IN THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
JUDICIAL DISTRICT
PLAINTIFFS' ORIGINAL PETITION
FOR DECLARATORY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes, Tommy Adkisson, individually, in his official capacity as Bexar County
Commissioner Precinct 4, and on behalf of Bexar County, Texas (hereinafter referred to as
Plaintiffs) who bring this suit pursuant to Texas Civil Practices & Remedies Code Chapter 37
and Chapter 552 of the Texas Government Code, including § 552.353(b), seeking declaratory
judgment and injunction to prevent the application of the Texas Public Information Act (the
Act) in connection with certain requests made to the Commissioner for non-public
information (including 0R2010-07537 and 0R2010-08701) and any future substantially
similar requests, as further described below:
1. Plaintiffs seek an initial declaration that:
A) The personal papers and effects of local government officials and local
government employees are not subject to "open records searches" and compelled
disclosure to the Texas Attorney General when applying the Act because the affected
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individuals do not fall within the term "governmental body" as that term is defined by
the Act.
B) The personal papers and effects of local government officials and local
government employees do not meet the statutory definition of public information and
therefore, are not subj ect to the Act.
2. In the alternative and in the event the Court somehow finds the scope of information at
issue is "public information" as defined by the Act, and contingent upon the scope of the
initial declaration, Plaintiffs seek a declaration that such information referred to herein is
excepted from required disclosure under the Act.
Factual Background for Declaratory & Injunctive Relief
3. Josh Baugh, on behalf of the San Antonio Express-News, made a Public Information
Act demand for "all inbound and outbound e-mail correspondence" between the
Commissioner and Terri Hall and "all inbound and outbound e-mail correspondence" between
the Commissioner and Isidro Martinez within a specified time period. (See Exhibit A - The
02117/2010 Request). The 02/1712010 request sought all "official capacity" information held
within the County and impermissibly sought all information not owned by the governmental
body or accessible to the governmental body despite the definition of public information as
defined by § 552.002(a) of the Act.
4. Applying the definition of public information in good faith, the Commissioner
produced all responsive information held by the governmental body or for the governmental
body that the governmental body owned or held a right of access to and sought the assistance
of the District Attorney to obtain an opinion of the Texas Attorney General finding the
remaining information sought was not subject to the Act. The Bexar County District
Plaintiff's Original Petition for Declaratory Judgment Page 2
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Attorney, correctly applying the law and procedural aspects of the Act, requested an opinion
of the Texas Attorney General that the remaining information sought but undisclosed was not
subject to the Act. (See Exhibit B - 03110/2010 15 Day Brief).
5. The Texas Attorney General, ignoring the clear and unambiguous statutory definitions
provided by the legislature and the well reasoned legal briefing by the Bexar County District
Attorney's Office, impermissibly re-wrote and unconstitutionally applied Texas law by not
only expanding the definition of a "governmental body" to include all local officials and all"
local employees, but expanded the definition of "public information" beyond constitutional
limits. Compare the Texas Attorney General's own recital of § 552.002(a) from his opinion,
with his self-pronounced revision of the very same statute in the very same opinion, as
provided below:
Legislative Definition of §552.002(a):
Section 552.002(a) provides that "public information" consists of
information that is collected, assembled, or maintained under a law or
ordinance or in connection with the transaction of official business: (1) by
a governmental body; or (2) for a governmental body and the
governmental body owns the information or has a right of access to it.
Attorney General's Definition of §552.002(a)
Information is within the scope of the Act if it relates to the official
business of a governmental body and is maintained by a public official or
employee of the governmental body.
(See Exhibit C - 05124/2010 0R2010-07537). This impermissible and wholesale revision of
the legislature's definition must be corrected by order of the Court. Upon making his self-
proclaimed amendment to Texas law, the Attorney General went on to admonish the
Commissioner with the threat of possible criminal sanctions if he did not comply with the
Attorney General's opinion of what the Attorney General believes the law should be. Id.
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6. The Act, while clearly applicable to information owned or accessible by the defined
"governmental body", has no provision either implicitly or explicitly which expands its
application to information held or accessible to all local government officials and/or all local
government employees, regardless of how acquired" .. .i f it relates to the official business of a
governmental body .. . ". The Act is not applicable to information held by local government
officials and local governmental employees that is not otherwise owned or accessible by the
defined governmental body, as that term is defined by § 552.003 of the Act. The definition is
very detailed and specific. The Attorney General's definition of "public information'
necessarily requires an extension of the Act's definition of "governmental body" to reach his
conclusion that it is applicable to information held by every Texas local government official
and employee.
7. The circumstances in the first request were essentially repeated with a second request
made by Scott Ericksen, Public Involvement Coordinator, San Antonio-Bexar County MPO
dated March 24, 2010. (See Exhibit D (which includes the request & clarification
correspondence and the 15 Day Brief dated April 8, 2010)). The Attorney General's second
opinion went even further than the first! (See Exhibit E - 0R2010-0871). After what began
as essentially an identical opinion, with the same erroneous conclusions, the Texas Attorney
General opined that the Commissioner/County's failure to produce the non-public information
to the Attorney General's Office at the time the opinion was sought " ... results in a legal
presumption the requested information is public and must be released." Application of the
Act in this manner must be corrected.
8. Such interpretation of the Act cannot be allowed because it results in authorizing the
Texas Attorney General to conduct an open records search of every local government
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official's and employee's personal papers and effects on the speculative whim of a member of
the public that makes an information request that somehow "relates" to the official business of
a "governmental body". The Attorney General once again admonishes the Commissioner
with the threat of criminal prosecution for failure to comply with his opinion. The declaration
sought fully encompasses any duty and obligation of the Commissioner and Bexar County in
connection with this request, as well as any future requests substantially similar.
9. In essence, the Attorney General unilaterally decided that in applying his revisionist
definitions to the request, which disagreed with the Plaintiffs' determination, he could decide
that Plaintiffs failed to comply with the procedural requirements of § 552.301. Therefore, the
Attorney General then imposed a "death penalty" sanction to further compel disclosure, which
must be corrected. When the issue presented is the very applicability of the Act based on the
scope of information sought, the non-disclosure of non-pUblic information cannot be used as
the very basis to determine applicability and access. Plaintiffs seek a court order declaring the
rights, duties and obligations of the parties in connection with this matter, finding that the
decision to preserve confidentiality or other bases by not disclosing information while a
determination of the applicability of the Act is in question, may not be used as a basis for the
imposition of a death penalty sanction by the Texas Attorney General.
Injunctive Relief
10. Based on the facts and circumstances pleaded herein, Plaintiffs seek temporary and
permanent injunctive relief relieving Plaintiffs from any duty to comply with the Act in
connection with the scope of the requests at issue and any substantially similar requests
pending or received and prohibiting all appropriate law enforcement agencies, including but
not limited to the Bexar County District Attorney's Office and the Texas Attorney General's
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Office, from taking any civil or criminal enforcement of the Act pending the outcome of these
proceedings and after such proceedings which may be inconsistent with the court's action in
this case..
Reservation ofRights:
11. The Commissioner, in his individual capacity, does not currently assert but reserves
the right to assert in this forum and reserves the right to assert and litigate federal claims in a
federal forum at a future date within the applicable statute of limitation, that the opinions of
the Texas Attorney General constitute a custom, practice and policy of his Office depriving
the Commissioner (and all other Texas local governmental officials and local government
employees) of their state and federally protected constitutional rights based on the facts and
circumstances described herein and the subsequent determination of the law, rights, duties and
obligations of the parties. All such rights are all clearly established state and federal
constitutional protections derived from Article 1, Sections 8, 9,10,13, 16,17 and 19 of the
Texas Constitution and the First, Fourth, Fifth and Fourteenth Amendments to the U.S.
Constitution enforced through 42 U.S.C. §1983 and 42 U.S.C. §1988, and the right to seek
declaratory judgment pursuant to 28 U.S.C. § 2201 and Federal Rule ofCivil Procedure 57.
Discovery
12. Discovery, if necessary, is intended to be conducted under Level 2 of Rule 190.3,
Texas Rules of Civil Procedure, however the legal interpretation of the Act may be
determinative and may not require any discovery by the parties.
Plaintiffs Original Petition for Declaratory Judgment Page 6
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Parties
13. Tommy Adkisson is an individual who is also the duly elected County Commissioner
of Bexar County Precinct 4. The Commissioner's office is located at 100 Dolorosa, Bexar
County Courthouse, Room 1.2, San Antonio, Texas. The Commissioner resides at 178
Golden Crown, San Antonio, Bexar County, Texas 78223. Commissioner Adkisson sues in
his individual and official capacity and has standing to sue as the individual and elected
official directly affected by the actions of and the customs, policies and practices of the Texas
Attorney General as described herein. Additionally, the Texas Attorney General designates
every elected official of a county as a "public information officer" for his elected office when
applying the Act.
14. Bexar County, Texas is a County under the laws and Constitution of the State of
Texas. Bexar County, Texas sues as the governmental body receiving an opinion of the Texas
Attorney General pursuant to the Act, Texas law and as authorized by Bexar County
Commissioners Court action on June 21,2010.
15. Defendant Greg Abbott is the duly elected Texas Attorney General, who is charged
with interpreting the Act, enforcing its criminal provisions, and also charged with defending
the constitutionality of Texas statutes, including the Act. Plaintiffs request the Clerk of the
Court issue citation so that he may be served with citation at the Texas Attorney General's
Office, 209 West 14th Street, Austin, Texas. Plaintiffs will issue service by means of the
Travis County Sheriffs Office and by certified mail pursuant to Texas Civil Practice and
Remedies Code § 30.004.
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Venue
16. Venue is proper in Travis County under Section 15.002(a) (2), Texas Civil Practice
and Remedies Code, and Section 552.353(b) (3), Texas Government Code.
Notice Under Section 552.325(b) ofthe Public Information Act
17. Pursuant to Section 552.325(b) of the Act, in the course of filing this suit against the
Attorney General, the Plaintiffs will make a timely, good faith effort to inform the requestors,
of the following:
1) the existence of the suit, including the subject matter and cause number of the
suit (once assigned) and the court in which the suit is filed;
2) their right to intervene in the suit or to choose to not participate in the suit;
3) the fact that the suit is against the Attorney General; and
4) the address and phone number of the Office of the Attorney General.
The notice will be provided to the requestors by certified mail, return receipt requested
as shown in Exhibit "F" attached.
Attorneys Fees Sought
18. Plaintiffs retained the firm of DENTON, NAVARRO, ROCHA & BERNAL, P.C., to
represent Plaintiffs in this action and have agreed to pay the firm reasonable and necessary
attorneys' fees. An award of reasonable and necessary attorneys' fees would be equitable and
just and authorized by Section 37.009 of the Texas Civil Practice and Remedies Code and by
Section 552.323(b) ofthe Texas Government Code.
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Prayer
WHEREFORE, Plaintiffs requests that Defendant be cited to appear and answer, and
that on final hearing prays Plaintiffs have judgment and the Court issue an order enjoining
enforcement of the statute during the pending proceedings and declaring and holding that:
A) The personal papers and effects of local government officials and local
government employees are not subject to "open records searches" and compelled
disclosure to the Texas Attorney General when applying the Act because the affected
individuals do not fall within the term "governmental body" as that term is defined by
the Act;
B) The personal papers and effects of local government officials and local
government employees do not meet the statutory definition of public information and
therefore, are not 'subject to the Act;
C) The Attorney General incorrectly and unilaterally determined the Plaintiffs did
not comply with the procedural requirements ofthe Act when in fact they did;
D) The documents at issue are not subject to the Act or alternatively are protected
from disclosure under the Act;
E) The Attorney General incorrectly applied the law regarding the definitions and
exceptions, to the extent applicable;
F) The Attorney General exceeded its authority and purpose of providing
advisory opinions by unilaterally and arbitrarily rewriting Texas law; deciding the
Plaintiffs did not comply with the procedural requirements of the Act and compelling
production of non-governmental body owned or accessible information;
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G) Awarding reasonable & necessary attorneys' fees, costs and expenses, to the
extent permitted by law, to Plaintiffs for the bringing this suit;
H) Plaintiffs complied with the Act in all things;
I) Plaintiffs applied the correct definitions and scope of exemptions under the
Act to the requests;
J) Plaintiffs' information is excepted from disclosure;
K) Plaintiffs have a compelling reason to keep the documents at issue excepted
from public disclosure; and,
L) Granting Plaintiffs such other relief to which it is shown to be entitled, together
with attorneys' fees and costs.
SIGNED this 24th day of June 2010
Respectfully submitted,
DENTON, NAVARRO, ROCHA & BERNAL
Professional Corporation
2517N. Main AvenueSan Antonio, Texas 78205
TELEPHONE: (210) 227-3243
Facsimile: (210) 225-4481
george.hyde@rampage-sa.com
lowell.denton@rampage-sa.com
BY: State Bar No. 45006157
LOWELL DENTON
State Bar No. 05764700
ROSS FISCHER
State Bar No. 24004647
ATTORNEYS FOR PLAINTIFFS
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