This action might not be possible to undo. Are you sure you want to continue?
TOM NEILD and MIKE NEIL § § § § § §
_ IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS
TANNER HUNT and BEAUMONT INDEPENDENT SCHOOL DISTRICT
VERIFIED PETITION FOR INJUNCTIVE RELIEF
Plaintiffs Tom Neild and Mike Neil complain against Defendants Tanner Hunt and Beaumont Independent School District as follows: I. PARTIES
II" f"'r., \__.-
,-.0 ~ -
:::0 :E -y.
Plaintiff Tom Neild is a resident of Beaumont, J~ft\rson CQjlnty,~~o
Texas. At all times material to the claim alleged herein, Mr. Neild servedfand presently serves as an elected member of the Board of Trustees of Defendant Beaumont Independent School District. 2.
>"< .=;. "!::>-.
Plaintiff Mike Neil a resident of Beaumont, Jefferson County, Texas.
At all times material to the claim alleged herein, Mr. Neil served, and presently serves as an elected member of the Board of Trustees of Defendant Beaumont Independent School District. 3. Defendant Tanner Hunt is a resident of Beaumont, Jefferson County,
Texas. Mr. Hunt is a licensed Texas attorney. At all times material to the claim alleged herein; Defendant Beaumont Independent School District retained Mr. Hunt to provide the school district with legal services.
Mr. Hunt may be served with citation at his regular place of business located at Wells, Peyton, Greenberg Beaumont, 4. Texas 77701. Defendant Beaumont Independent School District ("BISD") is a & Hunt, L.L.P., 550 Fannin, Suite 600,
of the State of Texas. BISD may be served with citation by Superintendent of Schools, at 3395
serving Carrol A. Thomas ('"Thomas"), Harrison Avenue, Beaumont,
JURISDICTION 4. This Court has subject matter jurisdiction pursuant to TEX. CON ST. any
ART~V, § 8 and TEX. GOV'T CODE § 24.007, and "may hear and determine cause that is cognizable
by courts of law or equity and may grant any relief that
could be granted by either courts of law or equity." TEX. GOV'T CODE § 24.00. III.
5. BISD's principal administrative office is located in Beaumont, Jefferson County, Texas
Jefferson County, Texas. Defendant
Hunt is a Beaumont,
resident. Venue is thus proper in this Court. TEX. CIV. PRAC. & REM. CODE §§ 15.001 & 15.0151.
IV. AVERMENTS 6. BISD, a Texas independent school district, "is governed by a board
of trustees who, as a body corporate, shall: (1) oversee the management of the district; and (2) ensure that the superintendent implements and monitors plans, procedures, programs, and systems to achieve appropriate. clearly defined, and desired results in the major areas of district operations." 11.051. 7. Under Texas law, the "trustees as a body corporate have the
TEX. EDUC. CODE
exclusive power and duty to govern and oversee the management of the public schools of the district. All powers and duties not specifically delegated by statute to the agency or to the State Board of Education are reserved for the trustees[.)"
TEX. EDUC. CODE
On January 19,2012, BISD Superintendent Thomas armounced his
retirement. Thereafter, the Board started it search for a replacement. 9. On April 2, 2012, the BISD Board of Trustees ("Board") met in
closed (i.e., executive) session, and selected Dr. Timothy Chargois as the new BISD Superintendent, effective upon Thomas' retirement, and of course, subject to negotiating an employment agreement acceptable to BISD and Dr. Chargois.
Defendant Hunt was retained to represent BISD, through the Board,
in contract negotiations with Dr. Chargois. The Board informally designated its President, Woodrow Reece ("Reece"), to work with Hunt in the negotiations. 11. The Board, in executive session, and unanimously, meaning all
seven trustees, gave Defendant Hunt certain instructions, including various contract terms that were non-negotiable. 12. Defendant Hunt was unanimously instructed that an employment
contract with Dr. Chargois would not contain any provision for an automatic salary increase. Any salary increase for the new Superintendent would be purely discretionary with the Board. This unanimous stance was, in Plaintiffs belief, a reaction to the wide-spread public dissatisfaction with Thomas' employment contract which, in practice, resulted in automatic salary increases, and the largest salary of any Superintendent in the State of Texas. 13. The only draft employment agreement ever physically provided to
the Board by Defendant Hunt that they were allowed to retain and review was provided to each Trustee by Defendant Hunt on March 28, 2012 by hand delivery. The Board did not, in any of the executive sessions or otherwise, change its original instruction to Defendant Hunt or Reece that there was to be no automatic raise provision in any contract with Dr. Chargois.
14. Defendant Board's
The draft employment
agreement provided to the Board by
Hunt on March 28,2012 clearly indicates that Hunt received the regarding there be no automatic salary increase. His original
draft expressly provided:
"This contract contains no provision for an
automatic salary increase."
15. Subsequently, the Board met in several additional executive sessions employment contract with Dr. Chargois. Defendant
to discuss BISD's proposed
Hunt was present for all executive 16.
In none of these executive sessions, including the last one held on
Hunt or any trustee, including Reece, affirmatively of the - "This contract contains no provision or about the inclusion of the
April 26, 2012, did Defendant
inform the Board of the elimination for an automatic
salary increase" - provision,
"automatic raise" language that somehow found its way into the final proposed agreement approved by the Board, and signed by Reece and Dr. Chargois on May
17. At the April 26, 2012, executive session, Defendant Hunt provided to
the trustees with a "bullet point" list of material tenus of what was represented be the final proposed top of a document, agreement. down. employment agreement with Dr. Chargois.
It was placed on
a document understood
to be the final proposed
That document, however, was turned upside down, that is, print-side
The Defendant Hunt-provided list of material contract terms,
however, made no mention of any form of automatic salary increases. Defendant Hunt made no mention of any such term, nor did he request that the Trustees review the final proposed agreement. Trustee Zenobia Bush commented she had choir practice that evening, and did not want to be late. The meeting was brief. 19. Five days after the April 26, 2012, executive session, on May 1,
2012, the Board held a public meeting, witha noticed executive session, to discuss and take action on the new Superintendent's employment agreement. Between the April 26, 2012, executive session, and May 1, 2012, no new or revised proposed agreement had physically been provided to the collective Board. The final proposed agreement, the subject of the May 1,2012, Board meeting, was not physically provided, electronically or otherwise, to the Board at the May 1 meeting, and prior to vote. 20. At the start of the May 1,2012, meeting, Reece unilaterally announced
there would be no executive session, with the Board voting thereafter to approve, upon Trustee Zenobia Bush's motion, an employment agreement with Dr. Chargois on certain specified terms she read, and "such other terms and conditions as are included in the Superintendent's employment contract agreed upon by the parties." The Board's vote also authorized Reece to sign the said "employment contract" on behalf of BISD. Despite the motion, the collective Board had not agreed to the inclusion of any provision providing for an automatic, non-discretionary raise in salary. Quite the contrary.
After the vote, and much congratulatory fanfare, Dr. Chargois and
BISD, through Reece, executed in public an employment agreement. A few days
later, Channel 6 News broke a story that the agreement executed by Reece and Dr. Chargois on May 1, 2012, contained a provision for automatic salary increases during the employment term, posting a copy of the said executed agreement on the _ Channel 6 website for public inspection. 22. Upon hearing the media story, and after a review of the executed
May 1,2012, agreement, posted online, Plaintiffs Neild and Neil learned they had been duped. Based on private and public, published representations of other BISD trustees, including Reece, Plaintiffs believe also other trustees were likewise duped regarding the contents of the final proposed agreement they had approved, and Reece signed on May 1,2012. Needless to say, the public reaction was and remains widespread and negative. 23. Consequently, on May 4, 2012, Plaintiffs Neild and Neil notified
Defendant Hunt in writing: Dear Mr. Hunt: In our capacity as trustees of the Beaumont Independent School District (BISD), we are requesting to review certain documents in the possession, custody and/or control of Wells Peyton andlor BISD. See Texas Attorney General Opinion No. lM-lI9 (1983) (ruling that a trustee of a covered school district is not subject to the Public Information Act when requesting district information in his official capacity).
The requested documents are: 1. All communications (including without limitation email and attachments thereto) between (either to or from) Wells Peyton and the attorney retained by Timothy Chargois regarding a proposed or actual employment contract (as superintendent) with BISD. 2. All drafts of a proposed or actual employment contract (as superintendent) between Timothy Chargois and BISD. If in electronic form, then please reduce the electronic copy to a printed copy. 3. All communications (including without limitation email and attachments thereto) from Wells Peyton to any BISD trustee pertaining to any proposed or actual employment contract (as superintendent) between Timothy Chargois and BISD. 4. All communications (including without limitation email and attachments thereto) from any BISD trustee (including the BISD Board) to Wells Peyton pertaining to any proposed or actual employment contract (as superintendent) between Timothy Chargois and BISD. 5. All communications (including without limitation email and attachments thereto) from Superintendent Thomas to Wells Peyton pertaining to any proposed or actual employment contract (as superintendent) between Timothy Chargois and BISD. 6. All communications (including without limitation email and attachments thereto) from Wells Peyton to Superintendent Thomas pertaining to any proposed or actual employment contract (as superintendent) between Timothy Chargois and BISD. These documents are of very recent origin and thus you should be able to produce the same for our review within a few business days of my request. Please advise if you can produce the same by Tuesday, May 8, 2012, and if not, why not. Further, if you withhold from our review any communication pertaining to the Timothy Chargois and BISD contract of employment (including employment contract negotiations). please notify us in writing, describing the document withheld and explaining why it is being withheld (i.e., the legal justification).
Thank you for your consideration, and we look forward to hearing from you soon. If you have any questions about the request, please give either one or both of us a call. 24. On May 7, 2012, Plaintiff Neil sent by email to Ms. Janice Teel,
BISD Executive Assistant to the Superintendent for Board Affairs, a request to he provided with all contracts between Defendant BISD and Defendant Hunt and Wells, Peyton, Greenberg & Hunt, L.L.P On May 7, 2012, Ms. Teel informed she would forward the request to Thomas. On May 10,2012, Plaintiff Neil requested Ms. Teel to ask Thomas when he could expect compliance with his May 7, 2012, request. As of the date and time of filing this Verified Petition, BISD, through Thomas, has not supplied Plaintiff Neil with the requested contracts.
On Tuesday, May 8, 2012, Defendant Hunt had delivered to
Plaintiffs Neild and Neil some, but not all of the requested documents. To date, no explanation has been offered by Defendant Hunt for the incomplete production in response to the May 8, 2012, request. Moreover, Defendant Hunt did not inform either Plaintiff that their requests, made directly to him as BISD's attorney, was in any way improper or contrary to any Board policy. 26. Due to the incomplete production, Plaintiff Neil e-mailed Defendant
Hunt on the morning of May 9,2011, informing and requesting as follows: Thank you for the documents you sent that Tom Neild and I requested last week. In reviewing them I noticed some documents may have been overlooked.
You did not provide a copy of the original "draft" contract that you sent to each trustee at the beginning of the process. Please provide us with a copy of that "draft" contract. On page 2 of the email thread between you and Mr. Hartsfield dated Apri126, 2012, you wrote "I should point out that certain of the salary adjustment language above was specifically dictated to me by board members for reasons I believe I've made clear in prior correspondence." Please provide us with a copy of all , correspondence between you and Mr. Hartsfield concerning the salary adjustment language you were referring to, i.e., the "prior correspondence. " Referring to the same email dated April 26, 2012, Mr. Hartsfield asked you to send a copy of the revised agreement (redlined). I do not see any correspondence that contains the revised agreement he asked for, or the resulting draft contract. Again, please provide me with a copy of all correspondence between the two of you after the April 26, 2012 2:02 PM email. Thank you for your considerations and quick attention to this matter. Sincerely, Mike Neil Trustee, BISD 27. Later on May 9, 2012, Plaintiff Neil, in his trustee capacity. e-mailed
Defendant Hunt requesting as follows: In addition to the documents listed below, please provide us with the documents with the bullet-points that we went over at the meeting on August 26. Additionally, when we changed from 2.5 to 3.5 years in the contract, I noticed you making notes on a copy of the contract. Please provide me with a copy of those notes.
In answer to Plaintiff Neil's May 9th requests, Defendant Hunt on
May 9, 2012, responded by letter, informing Plaintiffs of the following BISD Board policy: "In accordance with the written contract, individual Trustees shall channel legal inquiries through the Superintendent or Board designee, as appropriate, when advice or information from the District's legal counsel is sought." Unlike the response to Plaintiffs' May 8th request, Defendant Hunt cited Board policy, producing none of the documents Plaintiff Neil requested on May 9, 2012.
Although disagreeing with the applicability of the said Board policy
to a request by a Trustee for the mere production of existing district-related documentation in the possession ofBISD's attorney, on Friday, May 11,2012, at about 8:43 a.m., Plaintiff Neil forwarded his May 9,2012, requests to Thomas, requesting immediate attention to the requests by Defendant Hunt, citing verbatim to Thomas the said Board policy quoted by Defendant Hunt.
As of the date and time of filing this Verified Petition, Defendant
Hunt and BISD have failed and refused to produce to Plaintiffs Nield and Neil all of the documentation requested by them on May 8, and further have failed and refused to produce all of the documentation requested by Plaintiff Neil directly on
May 9, 2012, and then again through Thomas on May 11,2012.
CLAIM FOR RELIEF 31. 32. The above averments are hereby incorporated fully by reference. Trustees Neil and Neild, in their capacity as BISD trustees, have an
inherent and unconditional right as elected trustees of the BISD to access BISD documents and information, including access to confidential and non-confidential information, whether legal or non-legal, in the possession, custody or control of BISD, including by or through BISD's attorneys, including Defendant Hunt. See
TEX. ATT'y GEN. OP.
No. JM·119 (1983); see also GABRILSON V. FLYNN, 554
N.W.2d 267,274 (Iowa 1996) (school board members should be allowed access to both public and private records necessary for the proper discharge of their duties). 33. That right is not conditioned upon the assent or agreement by the
collective BISD Board or any trustee of the Board. Further, it is not conditioned upon the assent, agreement or willingness ofBISD administration, including Thomas or his subordinates. Last, it is not conditioned upon the assent, agreement or willingness ofBISD's 34. attorneys, including Defendant Hunt.
To prevent abrogation, or improper or undue interference with the
said right, the right of Plaintiffs Neild and Neil, as BISD trustees, necessarily embraces a right to timely production of the information and/or documents by those in possession, custody or control of the same. See See TEX. ATT'y GEN. OP. No. JM~119 (a member ofa governmental body cannot discharge his official
duties unless he has complete access to the records maintained by the governmental body). 35. Moreover, the existence of this right, including timely compliance,
implies the imposition of a corresponding duty on those BISD employees, agents and attorneys in possession, custody or control over the said information and/or documents sought by said trustees. 36. Here, Defendants BISD and Hunt, unquestionably in possession
and/or having custody or control over the information and documents sought by Plaintiffs Neild and Neil, as BISD trustees, have and are continuing to violate Plaintiffs' respective rights. 37. Defendants BISD and Hunt's ongoing wrongful interference with,
and denial of Plaintiffs' informational rights are unlawfully and improperly interfering with Plaintiffs' ability to discharge fully their statutory and common law duties owed to BISD and the Beaumont public, including without limitation the investigation of potential civil claims, resolution of the present controversy about the new Superintendent's employment agreement and the conduct of the trustees and BISD's counsel, and the monitoring, review and evaluation of the conduct ofBISD's legal services. attorneys who are paid many thousands of dollars a month for
The harm caused to Plaintiffs by the said wrongful denial and/or
interference is irreparable and ongoing, and the violations are not subject to remedy by monetary award or judgment. Plaintiffs only remedy is swift, mandatory injunctive relief through the equitable power and authority of this Court. 39. The significant public interests at stake weight overwhelmingly, if
not exclusively, in favor of Plaintiffs. Neither Defendants BISD nor Hunt have any lawful or justified interest in withholding any of the requested material from the two trustee-Plaintiffs. Moreover, public policy would be significantly
advanced and vindicated by grant of the equitable relief sought herein. Public policy does not and should not countenance the conduct of Defendants alleged herein.
PRA.YER WHEREFORE PREMISES CONSIDERED, Plaintiffs Tom Nield and Mike Neil pray that the Court: A. B. Set this case for early hearing and trial; Enter its preliminary order restraining BISD and Defendant-Hunt,
and their respective employees, administrators, partners and agents from destroying any information subject to Plaintiffs' May 4,2012, and or May 9, 2012, requests;
Issue its mandatory injunction commanding, subject to the penalty of
contempt, Defendants BISD and Hunt forthwith, without delay, to produce all information and documents requested by Plaintiffs on May 4,2012, and May 9, 2012; C. D Award Plaintiffs their reasonable attorneys' and costs of court; and Grant Plaintiffs such other equitable and/or legal relief to which they
may be justly entitled.
RESPECTFULL Y SUBMITTED,
fYl~~\DL D:GErz V
P.O. Box 1083 Beaumont, Texas 77704 (409)832·3381 (409)832. 3384(FAX) SBOT No. 07835280
1683 Lindbergh Drive Beaumont, Texas 77707 (409) 454-0240 (409) 842-0920 SBOT No. 05712550 ATTORNEYS FOR PLAINTIFFS TOM NIELD AND MIKE NEIL
STATE OF TEXAS COUNTY OF JEFFERSON
§ BEFORE ME, the undersigned Notary" on this day of May 2012, personally appeared TOM NEILD, known to me to be a credible person and of lawful age, who being by me first duly sworn, on his oath, deposes and says:
I am over the age of 18 and am fully competent to give this
Affidavit. The facts stated in this Affidavit are true and correct. I have personal knowledge of the same. I have read the Verified Petition for Injunctive Relief to which this Affidavit is attached. The facts stated therein are true and correct.
• TOM NEILD
/ K;B, g;_:;?
before me on the
Sworn to and subscribed
day of May 2012.
(J U64 0 .IJ_O-_cz~ _
Notary's Signature SEAL OF OFFICE:
~ NOTARY PUBLIC, STATE OF TEXAS
MY COMMISSION EXPIRES
DEBBIE O. RAGGIO
December 4; 2015
STATE OF TEXAS COUNTY OF JEFFERSON
§ § §
BEFORE ME, the undersigned Notary, ,on this day of May 2012, personally appeared MIKE NEIL, known to me to be a credible person and of lawful age, who being by me first duly sworn, on his oath, deposes and says: I am over the age of 18 and am fully competent to give this Affidavit. The facts stated in this Affidavit are true and correct. I have personal knowledge of the same. I have read the Verified Petition for Injunctive Relief to which this Affidavit is attached. The facts stated therein are true and correct.
Sworn to and subscribed before me on the
j£_ day of May 2012.
SEAL OF OFFICE:
DE88IE D. RAGGIO.
MY COMMISSION EXPIRES
NOTARY PUBLIC, STATE OF TEXAS
The Attorney General of Texas
JIM MATIOX Attorney General
December 30, 1983
Supreme Court Building P. O. Box 12548 Austin, IX. 78711· 2548 5121475·2501 Telex 9101874·1367 Telecopler 5121475·0266
Mr. Kenneth H. Ashworth Commissioner Coordinating Board Texas College and University System P. O. Box 12788, Capitol Station Austin, Texas 78711 Dear Hr. Ashworth:
Whether the tape of an interview is excepted from disclosure under the Open Records Act
714 Jackson, Suite 700 Da1l1l8, TX. 75202-4506 2141742-8944
4624 Alberta Ave., Suite 160 EI Paso, TX. 79905-2.793 915/533·3484
A member of the board of trustees of the Alamo Community College District has asked the chancellor of the district to furnish him with the following information: 1. Annual letter from the college I s general counsel to the college's auditing firm concerning possible liability in pending actions against the college. 2. Transcripts from the business management I restaurant management audit investigation regarding alleged wrong doing by the program director. The trustee requested this information in his official capacities as trustee and as chairman of the board's audit committee. We understand that the chancellor granted the first request but denied the second. relying upon sections 3(a)(2), 3(a)(3), and 3(a)(11) of the Open Records Act. article 6252-17a. V.T.e.S. The question in this instance is whether the chancellor must grant the trustee's request. We answer in the affirmative. Essentially. the chancellor argues that, as custodian of public recorda for the Alamo Community College District. see V.T.C.S. art. 6252-178, 15(a). he may decline to furnish to any requestor, including a district trustee, records maintained by the community college district when he concludes that those records are within an exception in the Open Records Act. We disagree. This argument erroneously assumes that a trustee's right of access to information maintained by the district is limited to that of a member of the general public.
lO1 Texas, Suite 700 l'1ouston, IX. 77002·3111
BOO Broadway, Suite 312 Lubbock, TX. 79401·3479
Suite B McAllen, TX. 78501·1685 5121682·4547
4309 N. Tenlh,
200 Main Plaza, Suite 400 Sail Antonio, TX. 78205·2197 5121225·4191
An Equal Opportunltyl AflirmaUve Action Employer
- Pa.ge 2
Se c tiOD 3· (a) of t he Open Reco rds Act provide.s t ha t n [a] 11 information. • • maintained by governmental bodies • • • is public information • II (Emphasis added). Section 2 (1) (A) of the Act defines "governmental body" as. inter alia, "any board • . • within the executive or legislative branch of the state government ••• under the direction of one or more elected or appointed members." (Emphasis added). Section 5(a) provides that "[t]he chief administraUve of f Lcar of the governmental body shall be the custodian of public records, [who) shall be responsible for the pre.servation and ~ of the public records of. the governmental. body." (Emphasis added). "Custodian" 18 defined In Webster's New Collegiate Dictionary as "one that guards and protects or maintains" and "ODe entrusted with guarding and keeping property or records. • • ." Webster's New Collegiate Dictionary (198L). at 278. The foregoing provisions establish that, although the custodian public records for the Alamo Community College District is responsible for guarding .preserv ing. and caring for the di strict Is records. these records are not within his exclusive possession and control. On the contrary., since the Act talks, in section 3 (a). in terms of "informatio·n collected, assembled, or maintained ~ governmental bodie.s" (emphasis .added), these records must be deemed to beat least constructively in the posseSSion and control of the board of trustees of the district. When he discharges his duty to preserve and guard these records, the custodian merely act e as an agent of the board who is. in effect, charged with the duty of preservIng and guarding "Lnf orma t Ion • • • ma intained by [the board]." Sec. 3 (a) • Furthermore, the determination of confidentiality is made by the "governmental body." Sec. 7(a).
The purpose of the Open Records Act is to prescribe the conditions under which members of the general public can obtain information from a governmental body. See V.T.C.S. arc, 6252-L7a. 53(a) (information maintained by governmental bodies is "public" informat ion and ~ with certain exceptions. 1.8 available to the "pub lie" during normal business hours). For the reasons discussed. we conclude that when a trustee ofa community college district. acting in his official capacity. requests information maintained by the district. he is not a member of the "public" for purposes of the Open Re.cords Act. On the contrary, he is a member of the board which at least constructively maintains all records in the district's posseSSion and is charged with the duty of implementing the Act. Because such a trustee is not merely a member of request for records in the district's possession opinion, be treated as a request for information Records Act. In this context, we note that in this trustee did not request these records under the Act. the custodian of district records may not invoke the the public. his cannot • in our under the Open instance.f the Concomitantly, Act to prevent
Mr. Kenneth H. Ashworth - Page 3
the trustee from obtaining the requested records. As noted. the Act controls tbe availability of 1nformat:f.onto members of the general public as such. It cannot, in our view, control the right of access of a member of a governmental body to information in that governmental body's possession. Since the governmental body -- in this instance, the board of trustees of the district -- at least constructively maintains records in the district's possession, we believe it logically follows that a member of that board has an inherent right of access to such records. at least when he requests them in his official capacity. The opposite conclusion would produce absurd results. First. as we have noted. the Open Records Act entitles members of the public to information maintained by governmental bodies. unless it is within a section 3 (a) exception. It would be ludicrous to conclude that B member of a board which "maintains" information cannot obtain that information. Second, the board of trustees of the Alamo COlllDunity College District is responsible for the governance and control of the district. Educ. Code §lJO.082. See Educ. Code §130.005 (laws pertaining to junior colleges applicable to community COllege districts). Were we to conclude that the custodian of the district's records may invoke the Act's exceptions to prevent a district trustee from obtaining those records, we would create an anomalous situation in which a district employee could prevent such trustee from discharging his official duties. Without complete access to district record8~ such trustee could not effectively perform his duties. We do not believe that those who drafted the Open Records Act intended to allow an employee of a governmental body to invoke the Act to keep a member of that body from obtaining information in the governmental body's possession. You also ask whether the foregoing information and other information must be made available to a reporter from a local television station. SpeCifically. the reporter has asked for "the complete financial transactions of the restaurant management program's agency account(s) for the school years 19BO-1981~ 1981-1982. and 1982-1983." You contend that the requested information is within section 3(a)(3) of the Open Records Act. which excepts the following from required disclosure: information relating to litigation of a criminal or civil nature and settlement negotiations, to which the state or poli tical subdivision is. or may be, a party, or to which an officer or employee of the stete or political subdiviSion. as a consequence of his office or employment. is or may be a party, that the attorney general or the respective attorneys of the various political
Mr. Kenneth.H. Ashworth - Page 4
subdivisions haa determined from. pubHc inspection.
eubpeenaed by the an investigation.
that all of the requested information has been 8exar County Dist ric t Attorney ! s 0 ff ice for use in You have provided us with a copy cfa subpoena duces tecum which cOIlD'D8.nded district's the internal auditor to appear before the grand jury snd bring with him. the foregoing records. This office has consistently held that section 3(8) (3) may be invoked where litigation. is either pending or reasonably anticipated. See. e.g., Open Records Decision No. 331 (1982). We believe that when a matter is under investigation by the district attorney's office. we may reasonably conclude that that matter may result in litigation. The evidence that you have provided convinces us that in this instance, litigation is "more than mere conjecture. n Open Records Decision No. 328 (1982). We therefore conclude that section 3(8)(3) authorizes you to deny this reporter's reques
First Assistant Attorney General
J 1H MAT T 0 X Attorney General of Texas
DAVID R. RICHARDS
Prepared by Jon Bible Assistant Attorney General
APPROVED: OPINION COMMITTEE
Rick Gilpin. Chairman Jon Bible Colin Carl Susan Garrison Jim Moellinger Nancy Sutton