adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
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Without The Education "District" Code, would not have an election code to fight over.
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NUMBER 13-02-00020-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NATIVIDAD VALENCIA A/K/A TIVIE VALENCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
DISSENTING OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Dissenting Opinion by Justice Hinojosa
The majority concludes that the evidence in this case is legally sufficient to support appellant’s conviction for bribery. Specifically, the majority holds that the evidence of appellant’s offer to vote for or recommend the appointment of two applicants for vacant constable positions is commensurate with an offer of a “benefit” under the bribery statute. Because I conclude the evidence is legally insufficient, I respectfully dissent.
A. Sufficiency of the Evidence
When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.–Corpus Christi 1997, pet. ref’d). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
1. The Bribery Statute
A person commits the offense of bribery if he intentionally or knowingly offers, confers, or agrees to confer on another any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant. Tex. Pen. Code Ann. § 36.02(a)(1) (Vernon 2003). “Benefit” means anything reasonably regarded as a pecuniary gain or pecuniary advantage. Id. § 36.01(3). It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office or he lacked jurisdiction or for any other reason. Id. § 36.02(b).
2. Analysis
In this case, in order to prove appellant guilty of bribery as indicted, the State was required to show that Valencia (1) intentionally or knowingly (2) offered, conferred, or agreed to confer (3) a benefit (4) as consideration for Josaphat Lozano and Juan Rodriguez’s decision or exercise of discretion as public servants to hire or employ Rolando Mancilla and Ofelio Muniz, respectively.
a. Lack of a Benefit
In its opinion, the majority reasons that a single vote or recommendation equates to a benefit under the penal code. I disagree. As defined in the penal code, “benefit” means “anything reasonably regarded as pecuniary gain or pecuniary advantage . . . .” Id. § 36.01(3) (Vernon 2003). While I acquiesce in the fact that the legislature, by including the descriptive phrase “reasonably regarded as” in the definition of a benefit, intended the definition to be broader than mere “pecuniary gain or advantage,” the majority fails to explain just how a single vote or recommendation can be reasonably regarded as pecuniary in nature.
The majority emphasizes the fact that appellant was a member of the Cameron County Commissioners Court when he offered to support Lozano and Rodriguez for the vacant constable positions. Footnote Yet, a county commissioner cannot unilaterally appoint an individual to fill a vacancy in the constable’s office; rather it requires a majority of the commissioners court to accomplish the same. Footnote Thus, at most, appellant offered one of three votes necessary for the appointments of Lozano and Rodriguez to the positions of county constable. This begs the question of how a single vote or recommendation can be reasonably regarded as pecuniary in nature. The majority falls short in answering this question. In fact, the only evidence the majority finds to substantiate its conclusion that appellant’s vote or recommendation was a benefit as contemplated by the bribery statute is the testimony of Lozano that the county constable position was paid an annual salary of approximately $34,800. This evidence contemplates that appellant was offering a job to Lozano and Rodriguez as part of the bribe. See Kaisner v. State, 772 S.W.2d 528, 529 (Tex. App.–Beaumont 1989, pet. ref’d) (offering job of chief deputy sheriff to candidate for sheriff if he agreed to withdraw from runoff election). However, there is no evidence in the record that appellant was offering or ensuring Lozano and Rodriguez the county constable positions. It is undisputed that the only offer made was an offer to support Lozano and Rodriguez for the vacant constable positions. While under certain circumstances a vote or recommendation may be construed as a gain or advantage, the majority’s holding effectively eradicates the pecuniary requirement from the bribery statute.
To the contrary, offenses traditionally prosecuted under the bribery statute involve the exchange of a benefit which can be readily valued in terms of money. See United States v. Tunnell, 667 F.2d 1182, 1185-86 (5th Cir. 1982) (providing the services of a prostitute at no cost to the recipient); Bates v. State, 587 S.W.2d 121, 126 (Tex. Crim. App. 1979) (paying a district judge $59,000 to receive a probated sentence); Roseman v. State, 382 S.W.2d 261, 263 (Tex. Crim. App. 1964) (paying police officer $20 to persuade him not to arrest defendant in the future for violating the gaming and liquor laws); Smith v. State, 959 S.W.2d 1, 21 (Tex. App.–Waco 1997, pet. ref’d) (providing round-trip plane tickets, hotel accommodations, meals, ground transportation, and theater tickets at no cost to defendant’s wife); Lima v. State, 788 S.W.2d 629, 630 (Tex. App.–Texarkana 1990, pet. ref’d) (conferring a benefit of nine yards of concrete on city inspector in violation of inspector’s duty imposed by law); Tweedy v. State, 722 S.W.2d 30, 31 (Tex. App.–Dallas 1986, pet. ref’d) (offering $200 to city construction inspector to allow defendant and his work crew to dig trenches, lay pipe, and backfill the trenches without the inspector examining the work); see also Black’s Law Dictionary 1131 (6th ed. 1990) (defining “pecuniary” in part as something which can be valued in money). Even the lone case cited by the majority in its analysis conforms with this line of cases. See Kaisner, 772 S.W.2d at 529 (offering job of chief deputy sheriff to candidate for sheriff if he agreed to withdraw from runoff election).
In light of the established case law, I conclude that appellant’s vote or recommendation is not reasonably regarded as a pecuniary gain or pecuniary advantage as contemplated by the bribery statute. See Tex. Pen. Code Ann. § 36.01(3) (Vernon 2003). Thus, I would hold there is no evidence that appellant had a “benefit” to offer as consideration for the alleged bribe. Accordingly, I would hold that a rational trier of facts could not have found the essential elements of the offense of bribery beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
b. Lack of Discretion to Hire or Employ
The State was also required to show that appellant made the offer of a benefit to Lozano and Rodriguez as consideration for their decision or exercise of discretion as public servants to hire or employ Rolando Mancilla and Ofelio Muniz, respectively.
The “exercise of discretion” contemplated by the statute involves the discretion one exercises in performing his duties as a public servant. In the instant case, however, the public servant in question, the county constable, did not have an unfettered right to hire or employ deputy constables. An elected constable who desires to appoint a deputy must apply in writing to the commissioners court of the county and show that the appointment is necessary to properly handle the business of the constable’s office originating in the precinct. Tex. Loc. Gov’t Code Ann. § 86.011(a) (Vernon 1999). The county commissioners court has the authority to approve and confirm the appointment, if it finds the appointment of the deputy necessary. Id. In fact, it is an offense for an elected constable to deputize someone without first obtaining approval from the commissioners court. Tex. Loc. Gov’t Code Ann. § 86.011(d) (Vernon 1999). Thus, at most, a constable has the discretion to nominate or appoint a candidate for a deputy constable position and the candidate is hired only if the commissioners court gives its consent. As a county commissioner, appellant knew this procedure.
Accordingly, I conclude there is no evidence that hiring or employing Rolando Mancilla or Ofelio Muniz was a “decision . . . or other exercise of discretion” of Lozano and Rodriguez under the bribery statute. See Tex. Pen. Code Ann. § 36.02(a)(1) (Vernon 2003).
c. Bilateral Agreement
Appellant also relies on the case of McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985). In that case, the defendant was convicted of bribery pursuant to an indictment that alleged he conferred a benefit as consideration for the recipient’s vote as a juror in a judicial proceeding. Id. at 136. After construing the language of the bribery statute, the court of criminal appeals stated “we construe the offense, particularly where it alleges the accused intentionally or knowingly conferred ‘a benefit as consideration for’ . . . as requiring a bilateral arrangement – in effect an illegal contract to exchange a benefit as consideration for the performance of an official function.” Id. Concluding there was no evidence of a bilateral agreement between the defendant and the recipient of the benefit, the court reversed the conviction and ordered a judgment of acquittal. Id. at 139. Likewise, in the instant case, there could be no agreement to hire or employ Rolando Mancilla or Ofelio Muniz because Lozano and Rodriguez did not have the absolute discretion to do so. Footnote
B. Conclusion
Viewing the evidence presented at trial in the proper light, I conclude that a rational trier of fact could not have found the essential elements of the offense of bribery beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, I would hold that the evidence is legally insufficient to sustain appellant’s conviction for two counts of bribery.
I would sustain appellant’s first issue, reverse the trial court’s judgment, and render a judgment of acquittal on the two counts alleged in the indictment. Therefore, I respectfully dissent.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Dissenting Opinion delivered and filed this the
24th day of June, 2004.
Tuesday, January 29, 2008
Saturday, January 19, 2008
Better put 'em in quotations........
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
Take all of your wasted honor.
Every little past frustration.
Take all of your so called problems,
Better put 'em in quotations.
Say what you need to say (x8)
Walkin' like a one man army,
Fightin' with the shadows in your head.
Livin' up the same old moment
Knowin' you'd be better off instead
If you could only...Say what you need to say (x8)
Have no fear for givin' in.
[Say What You Need To Say lyrics on http://www.metrolyrics.com]
Have no fear for giving over.
You better know that in the end
It's better to say too much, than never to say what you need to say again.
Even if your hands are shaking,
And your faith is broken.
Even as the eyes are closin',
Do it with a heart wide open.
Say what you need to say (x7)
Say what you need to, Say what you need to...
Say what you need to say.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
Take all of your wasted honor.
Every little past frustration.
Take all of your so called problems,
Better put 'em in quotations.
Say what you need to say (x8)
Walkin' like a one man army,
Fightin' with the shadows in your head.
Livin' up the same old moment
Knowin' you'd be better off instead
If you could only...Say what you need to say (x8)
Have no fear for givin' in.
[Say What You Need To Say lyrics on http://www.metrolyrics.com]
Have no fear for giving over.
You better know that in the end
It's better to say too much, than never to say what you need to say again.
Even if your hands are shaking,
And your faith is broken.
Even as the eyes are closin',
Do it with a heart wide open.
Say what you need to say (x7)
Say what you need to, Say what you need to...
Say what you need to say.
Tuesday, January 1, 2008
A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy atlaw
adjective
GRANT JONES v. HONORABLE MIKE WESTERGREN (05/18/89)
[1] COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI
[2] No. 13-88-306-CV
[3] 1989.TX.40789; 771 S.W.2d 669
[4] May 18, 1989
[5] GRANT JONES, RELATOR,
v.
THE HONORABLE MIKE WESTERGREN, JUDGE OF THE 214TH JUDICIAL COURT OF NUECES COUNTY, TEXAS, RESPONDENT
[6] On Petition for Writ of Mandamus.
[7] Jackson B. Smith, Jr.;*fn* Tom F. Coleman, Sr.; and * Robert R. Murray, J. J.
[8] Author: Smith
[9] In this original proceeding, the relator, Grant Jones, the District Attorney for Nueces County, seeks a writ of mandamus to compel the Honorable Mike Westergren, a District Judge in Nueces County, to vacate his order convening a Court of Inquiry pursuant to Tex. Code Crim. Proc. 52.01.
[10] Relator asserts nine bases for relief that may be grouped as follows: (1) Art. 52.01 is unconstitutional on its face; (2) the court made procedural errors resulting in noncompliance with the provisions of Art. 52.01; (3) the trial judge is constitutionally disqualified to preside at the proceeding; and (4) that application of Art. 52.01 violates the relator's "due process" rights. Respondent asserts that this court lacks jurisdiction to determine this cause.
[11] The facts of the case are relatively simple. On May 24, 1988, Judge Westergren signed an order convening a Court of Inquiry to commence a hearing on June 1, 1988, to investigate alleged illegal conduct of relator. On May 25th, subpoenas were served on relator and other named people in the District Attorney's Office. On May 27, 1988, Judge Westergren stayed his June 1st hearing, apparently based on an order of Judge Manuel Banales, Judge of the 105th District Court of Nueces County. The record before us contains nothing concerning the hearing before Judge Banales, but Judge Westergren's order of May 17th refers to the hearing as "partially addressed by motion to recuse." The record before this court does not reveal what disposition was made of the motion to recuse before Judge Banales.
[12] By letter dated July 19, 1988, Judge Westergren notified relator that he had "Lifted" his stay order of May 17th and ordered that the Court of Inquiry commence on August 29, 1988. On July 26, 1988, pursuant to relator's motion for leave to file a writ of mandamus and request for a temporary stay, this court granted leave to file the writ, and ordered a temporary stay of the Court of Inquiry proceedings.
[13] We first address the respondent's assertion that this court does not have jurisdiction to consider relator's petition because it is based on speculative, hypothetical, or contingent situations. He alleges that the suit is "premature" and "not yet ripe" for purposes of adjudication by the courts.
[14] Our review of the record shows that at the present time, a Court of Inquiry has been ordered by the respondent, subpoenas have been issued, and no evidence has been presented.
[15] The abstract and hypothetical factual and procedural situations that the relator has suggested may arise do not raise "due process" or other constitutional issues at this time. A court has no jurisdiction to render an opinion on a controversy that is not yet ripe. City of Garland v. Louton,691 S.W.2d 603, 605 (Tex.1985).
[16] To the extent that relator's petition seeks mandamus relief based upon facts that have not yet occurred and are merely hypothetical, we agree with respondent that this court does not have jurisdiction to render advisory opinions on factual situations that may or may not arise in the future. If the hypothetical facts suggested by relator in his brief should come to fruition, he has an adequate remedy at law by writ of habeas corpus.
[17] Relator asserts that respondent made procedural errors in the calling of the Court of Inquiry that void the order convening the Court of Inquiry, entitling relator to a writ of mandamus. He contends that respondent failed to comply with the provisions of Article 52, Tex.Code Crim.P. in the following respects: (1) respondent's affidavit failed to state good cause to invoke respondent's authority to hold a Court of Inquiry; (2) respondent is interested in the outcome of the proceeding and is disqualified; (3) respondent is disqualified because he is relator's accuser, has been of counsel in the case, and may not be cross-examined because he is the judge in the case; and (4) the court's order is invalid because it fails to give adequate notice of the scope of the inquiry.
[18] A Court of Inquiry by a district judge is authorized by chapter 52 of the Texas Code of Criminal Procedure. The relevant parts of chapter 52 to this case are:
[19] Art. 52.01
[20] (a) When a judge of any district court of this state, acting in his capacity as magistrate has good cause to believe that an offense has been committed against the laws of this state, he may summon and examine any witness in relation thereto in accordance with the rules hereinafter provided, which procedure is defined as a "Court of Inquiry."
[21] (b) Before calling a Court of Inquiry, a judge must:
[22] (1) enter into the minutes of his court a sworn affidavit stating the good cause establishing his belief that an offense has been committed against the laws of this state; and
[23] (2) no later than 10 days prior to the commencement of the Court of Inquiry, file with the district clerk a copy of the sworn affidavit and a written order calling the Court of Inquiry and stating its scope.
[24] (c) The district or county attorney of the district or county in which the Court of Inquiry is held shall assist the district judge in conducting the Court of Inquiry. The attorney shall examine witnesses and evidence admitted before the court to determine if an offense has been committed and shall render other assistance to the judge as is necessary in the proceeding.
[25] (d) If the Court of Inquiry pertains to the activities of the district or county attorney or to the attorney's office, deputies, or employees, or if the attorney is otherwise disqualified in the proceeding, the judge shall appoint one attorney pro tem to assist in the proceeding. In any other circumstance, the judge may appoint an attorney pro tem to assist in the proceeding.
[26] Art. 52.02
[27] At the hearing at a Court of Inquiry, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted, any witness against whom they may bear has the right to propound written interrogatories to the affiants or to file answering affidavits. The judge in hearing such evidence, at his discretion, may conclude not to sustain objections to all or to any portion of the evidence taken nor exclude same; but any of the witnesses or attorneys engaged in taking the testimony may have any objections they make recorded with the testimony and reserved for the action of any court in which such evidence is thereafter sought to be admitted, but such court is not confined to objections made at the taking of the testimony of the Court of Inquiry. Without restricting the foregoing, the judge may allow the introduction of any documentary or real evidence which he deems reliable, and the testimony adduced before any grand jury.
[28] Art. 52.03
[29] The judge or his clerk has power to issue subpoenas which may be served within the same territorial limits as subpoenas issued in felony prosecutions or to summon witnesses before grand juries in this state.
[30] Art. 52.04
[31] All witnesses testifying in any Court of Inquiry have the same rights as to testifying as do defendants in felony prosecutions in this state. Before any witness is sworn to testify in any Court of Inquiry, he shall be instructed by the judge that he is entitled to counsel; that he cannot be forced to testify against himself; and that such testimony may be taken down and used against him in a later trial or trials ensuing from the instant Court of Inquiry. Any witness or his counsel has the right to fully cross-examine any of the witnesses whose testimony bears in any manner against him.
[32] Art. 52.05
[33] A person may be compelled to give testimony or produce evidence when legally called upon to do so at any Court of Inquiry; however, if any person refuses or declines to testify or produce evidence on the ground that it may incriminate him under laws of this state, then the judge may, in his discretion, compel such person to testify or produce evidence but the person shall not be prosecuted or subjected to any penalty or forfeiture for, on or account of, any transaction, matter or thing concerning which he may be compelled to testify or produce evidence at such Court of Inquiry.
[34] Art. 52.06
[35] Contempt of court in a Court of Inquiry may be punished by a fine not exceeding One Hundred Dollars ($100.00) and any witness refusing to testify may be attached and imprisoned until he does testify.
[36] Art. 52.07
[37] All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall be open to the public.
[38] Art. 52.08
[39] If it appear from a Court of Inquiry or any testimony adduced therein, that an offense has been committed, the Judge shall issue a warrant for the arrest of the offender as if complaint had been made and filed.
[40] The respondent's affidavit states as follows:
[41] STATE OF TEXAS
[42] COUNTY OF NUECES
[43] AFFIDAVIT
[44] I, Mike Westergren, Judge, 214th District Court of Nueces County, Texas, have good cause to believe that District Attorney Grant Jones and other members of his staff acting under color of law and his office have intentionally denied and impeded one Bill Jensen and others in the exercise and enjoyment of the right of free speech to criticize in any manner however founded or unfounded, the operation of the office of the District Attorney including, but not limited to the dissemination of information some of which is undeniably public record concerning the wisdom or lack of wisdom in the hiring and continued employment of certain employees, and all other matters arising out of said transaction concerning the use of the District Attorney's official powers for his own self-protection and private purposes not contemplated or authorized by law. Specifically it is my belief that Grant Jones, District Attorney, has engaged in conduct constituting the offense of Official Oppression defined by Sec. 39.02, Texas Penal Code.
[45] My belief is based upon information which I have received as well as my own review of the pleadings filed in Cause No. 88-CR-420-D, the State of Texas v. Bill Jensen.
[46] Relator asserts that respondent initially erred procedurally by failing to state a good cause to convene the Court of Inquiry as required by article 52.02(b)(1). Specifically he contends that by failing to comply with this section of article 52, respondent failed to invoke the authority of his court, and his order convening the Court of Inquiry is void.
[47] The full context of respondent's affidavit is set out above and in essence states that the respondent has good cause to believe that the relator and other members of his staff acting under color of law have intentionally denied . . . the right of free speech to criticize in any manner the operation of the office of the District Attorney including, but not limited to, the dissemination of information . . . of public record concerning . . . employment of certain employees and all other matters arising out of . . . the use of the District Attorney's official powers for his own self protection and private purposes . . . constituting the offense of Official Oppression defined by section 39.02 of the Texas Penal Code.
[48] The cases cited by relator and respondent generally discuss the requisites for good cause in affidavits made the basis for warrants. However, neither party has cited us to any case that supports the contention that the requisites of an affidavit setting forth good cause under article 52 are as stringent as the requirements to show good cause on a complaint or on an affidavit to obtain a search warrant.
[49] The purpose of a Court of Inquiry, as its title indicates, is to inquire and to ascertain if illegal activity has occurred or is occurring. It is merely an investigative procedure to inquire into alleged illegal activity. Article 52 does not require that the affiant state with certainty that good cause exists but requires an affidavit "stating a good cause establishing his belief. " (Emphasis added.) It appears that the legislative intent, in using the phrase "establishing his belief" as a modifier to the phrase "good cause," was to require a less stringent requirement to establish good cause in an affidavit used as a basis to convene a Court of Inquiry. The rationale appears to be that the court has sufficient facts before it to have good cause to convene a hearing to inquire whether there is or is not illegal activity that has occurred or is occurring. We conclude that respondent's order is not void for failure of the affidavit to state a good cause as required by article 52.02(b)(1).
[50] We also note that relator has not cited any cases that hold such an error would be jurisdictional.
[51] The relator next contends, in several points of error, that the respondent is disqualified because he (1) is interested in the outcome of the Court of Inquiry; (2) has been of counsel in the case; and (3) is the accuser in this case, and relator cannot cross-examine him.
[52] Article 5, section 11 of the Texas Constitution states that no judge shall sit in any case where he may be interested, and Rule 18a, Tex.R.Civ.P. states as follows:
[53] At least 10 days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals, or the Court of Appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts that would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.
[54] As heretofore noted, apparently some hearing was held before Judge Banales of the 105th District Court of Nueces County, pertaining to a motion to recuse. Because we do not have the record of that hearing, we do not know what allegations were made in the motion, and we do not know what disposition, if any, was made of the motion.
[55] Each of the relator's contentions made in the instant suit that the respondent is disqualified or should be recused may have been heard in the hearing before Judge Banales. Rule 18a(f) provides a method of appeal where a motion to recuse is denied.
[56] In the instant case, if the relator made all the allegations in the hearing before Judge Banales that he made in this case, and if his motion was denied, he had the right of appeal. In the event Judge Banales made no disposition of the relator's motion or in the event the allegations made by relator in the instant case were not made in the motion before Judge Banales, Rule 18a provides an adequate remedy at law for the relator.
[57] A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy at law. Strake v. Court of Appeals,704 S.W.2d 746, 747 (Tex.1986); State ex rel. Jerry Cobb v. Godfrey, 739 S.W.2d 47, 47 (Tex.Crim.App.1987). Because relator has an adequate remedy at law determining the issues of disqualification and recusal, a writ of mandamus is not the proper procedure to determine these issues.
[58] The relator also contends that the respondent's order is invalid because it fails to give adequate notice of the scope of the inquiry to be made.
[59] Relator does not contend that he has not received the 10-day statutory notice required by article 52.01(b)(2), but contends that the content of the respondent's affidavit is insufficient to give him adequate notice to defend himself as required by article I, section 10 of the Texas Constitution. Section 10 provides that an accused shall have the "right to demand the nature and cause of the accusation against him, and to have a copy thereof."
[60] Respondent's affidavit names one individual whose rights have been affected, it states what rights have been affected; it states in what case the alleged events have occurred; and it states what criminal statute has been violated. It does not state what the specific facts are, and, other than the relator, it does not specify the names of the parties referred to in the affidavit.
[61] Neither article I, section 10 of the Texas Constitution, nor article 52.01(b)(2), Tex. Code Crim. P. set forth the extent to which an affidavit must state specific facts to give adequate notice to persons subpoenaed to testify at a Court of Inquiry. We can find no cases on point, so we look to other case law for guidance.
[62] It is well established in Texas that in felony prosecutions, an indictment must specifically state the facts upon which the State relies so as to give the defendant adequate notice of the crime he allegedly committed. However, it appears to be equally well established that the requisites of a complaint or affidavit to support a prosecution under an information are not as stringent as the requirements for a complaint for a search or arrest warrant. Wells v. State, 516 S.W.2d 663 (Tex.Crim.App. 975); Gholson v. State, 667 S.W.2d 168, 177 (Tex.App. -- Houston [14th Dist.] 1983, pet. ref'd).
[63] If the requirements or the affidavits were less stringent, as in Wells and Gholson, where charged had been made and the defendants had been placed under arrest, it would seem less likely in an investigative procedure as here, where no charges have been filed and no arrest has been made, that the more stringent requirements of an affidavit for an arrest or search warrant would be required.
[64] Under federal law, where subpoenas have been issued by an administrative agency and notice requirements have been attacked, the United States Supreme Court has held that the due process clause of the Fifth Amendment is not implicated because an administrative investigation adjudicates no legal rights. Likewise, the Court held that the confrontation clause of the Sixth Amendment is not offended because criminal proceedings have not been initiated. S.E.C. v. Jerry T. O'Brien, Inc., 467 U. S. 735, 81 L. Ed. 2d 615, 104 S. Ct. 2720 (1984).
[65] As in O'Brien, the present case is an investigative matter, and no criminal proceedings have been initiated. Similarly, as in Wells and Gholson, it would seem that less stringent requirements for an affidavit would be necessary. This is especially so where the procedure is only investigative in nature, and criminal charges may or may not result. We conclude that the respondent's affidavit provides the relator with sufficient notice to apprise him of the scope of the inquiry to be made in the Court of Inquiry ordered by the respondent.
[66] Finally, we disagree with relator that article 52 is unconstitutional on its face and deprives him of his due process rights. A statute may be consistent with due process but by its application, or use, or by construction, be applied in a manner that would deny due process. Smith v. State, 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164 (1940).
[67] Although the Supreme Court of the United States in its memorandum opinion in McClelland v. State, 382 U.S. 928, 15 L. Ed. 2d 340, 86 S. Ct. 307 (1965), noted that the present Texas Court of Inquiry statute has "grave constitutional questions by conducting such proceedings," we are of the opinion that the constitutional questions alluded to by that court will only arise if in the statute's usage and construction, constitutional rights during the proceedings are not afforded to the parties involved. At the present time, the Court of Inquiry has not yet convened and the proceedings have not commenced. Although it may prove difficult under article 52 to provide constitutional safeguards, we will not presume that the respondent will deny the relator his due process constitutional rights when the Court of Inquiry is held. Because the relator has not shown that the respondent has clearly abused his discretion or violated a duty imposed upon him by the law, and because the relator has an adequate remedy at law, we hold that the relator is not entitled to the relief he has prayed for.
[68] This Court's order staying the Court of Inquiry hearing is hereby set aside, and the relator's petition for mandamus is overruled.
Judges Footnotes
[69] *fn* Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code An.. § 74.003 (Vernon 1988).
19890518
© 1998 VersusLaw Inc.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
GRANT JONES v. HONORABLE MIKE WESTERGREN (05/18/89)
[1] COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI
[2] No. 13-88-306-CV
[3] 1989.TX.40789
[4] May 18, 1989
[5] GRANT JONES, RELATOR,
v.
THE HONORABLE MIKE WESTERGREN, JUDGE OF THE 214TH JUDICIAL COURT OF NUECES COUNTY, TEXAS, RESPONDENT
[6] On Petition for Writ of Mandamus.
[7] Jackson B. Smith, Jr.;*fn* Tom F. Coleman, Sr.; and * Robert R. Murray, J. J.
[8] Author: Smith
[9] In this original proceeding, the relator, Grant Jones, the District Attorney for Nueces County, seeks a writ of mandamus to compel the Honorable Mike Westergren, a District Judge in Nueces County, to vacate his order convening a Court of Inquiry pursuant to Tex. Code Crim. Proc. 52.01.
[10] Relator asserts nine bases for relief that may be grouped as follows: (1) Art. 52.01 is unconstitutional on its face; (2) the court made procedural errors resulting in noncompliance with the provisions of Art. 52.01; (3) the trial judge is constitutionally disqualified to preside at the proceeding; and (4) that application of Art. 52.01 violates the relator's "due process" rights. Respondent asserts that this court lacks jurisdiction to determine this cause.
[11] The facts of the case are relatively simple. On May 24, 1988, Judge Westergren signed an order convening a Court of Inquiry to commence a hearing on June 1, 1988, to investigate alleged illegal conduct of relator. On May 25th, subpoenas were served on relator and other named people in the District Attorney's Office. On May 27, 1988, Judge Westergren stayed his June 1st hearing, apparently based on an order of Judge Manuel Banales, Judge of the 105th District Court of Nueces County. The record before us contains nothing concerning the hearing before Judge Banales, but Judge Westergren's order of May 17th refers to the hearing as "partially addressed by motion to recuse." The record before this court does not reveal what disposition was made of the motion to recuse before Judge Banales.
[12] By letter dated July 19, 1988, Judge Westergren notified relator that he had "Lifted" his stay order of May 17th and ordered that the Court of Inquiry commence on August 29, 1988. On July 26, 1988, pursuant to relator's motion for leave to file a writ of mandamus and request for a temporary stay, this court granted leave to file the writ, and ordered a temporary stay of the Court of Inquiry proceedings.
[13] We first address the respondent's assertion that this court does not have jurisdiction to consider relator's petition because it is based on speculative, hypothetical, or contingent situations. He alleges that the suit is "premature" and "not yet ripe" for purposes of adjudication by the courts.
[14] Our review of the record shows that at the present time, a Court of Inquiry has been ordered by the respondent, subpoenas have been issued, and no evidence has been presented.
[15] The abstract and hypothetical factual and procedural situations that the relator has suggested may arise do not raise "due process" or other constitutional issues at this time. A court has no jurisdiction to render an opinion on a controversy that is not yet ripe. City of Garland v. Louton,691 S.W.2d 603, 605 (Tex.1985).
[16] To the extent that relator's petition seeks mandamus relief based upon facts that have not yet occurred and are merely hypothetical, we agree with respondent that this court does not have jurisdiction to render advisory opinions on factual situations that may or may not arise in the future. If the hypothetical facts suggested by relator in his brief should come to fruition, he has an adequate remedy at law by writ of habeas corpus.
[17] Relator asserts that respondent made procedural errors in the calling of the Court of Inquiry that void the order convening the Court of Inquiry, entitling relator to a writ of mandamus. He contends that respondent failed to comply with the provisions of Article 52, Tex.Code Crim.P. in the following respects: (1) respondent's affidavit failed to state good cause to invoke respondent's authority to hold a Court of Inquiry; (2) respondent is interested in the outcome of the proceeding and is disqualified; (3) respondent is disqualified because he is relator's accuser, has been of counsel in the case, and may not be cross-examined because he is the judge in the case; and (4) the court's order is invalid because it fails to give adequate notice of the scope of the inquiry.
[18] A Court of Inquiry by a district judge is authorized by chapter 52 of the Texas Code of Criminal Procedure. The relevant parts of chapter 52 to this case are:
[19] Art. 52.01
[20] (a) When a judge of any district court of this state, acting in his capacity as magistrate has good cause to believe that an offense has been committed against the laws of this state, he may summon and examine any witness in relation thereto in accordance with the rules hereinafter provided, which procedure is defined as a "Court of Inquiry."
[21] (b) Before calling a Court of Inquiry, a judge must:
[22] (1) enter into the minutes of his court a sworn affidavit stating the good cause establishing his belief that an offense has been committed against the laws of this state; and
[23] (2) no later than 10 days prior to the commencement of the Court of Inquiry, file with the district clerk a copy of the sworn affidavit and a written order calling the Court of Inquiry and stating its scope.
[24] (c) The district or county attorney of the district or county in which the Court of Inquiry is held shall assist the district judge in conducting the Court of Inquiry. The attorney shall examine witnesses and evidence admitted before the court to determine if an offense has been committed and shall render other assistance to the judge as is necessary in the proceeding.
[25] (d) If the Court of Inquiry pertains to the activities of the district or county attorney or to the attorney's office, deputies, or employees, or if the attorney is otherwise disqualified in the proceeding, the judge shall appoint one attorney pro tem to assist in the proceeding. In any other circumstance, the judge may appoint an attorney pro tem to assist in the proceeding.
[26] Art. 52.02
[27] At the hearing at a Court of Inquiry, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted, any witness against whom they may bear has the right to propound written interrogatories to the affiants or to file answering affidavits. The judge in hearing such evidence, at his discretion, may conclude not to sustain objections to all or to any portion of the evidence taken nor exclude same; but any of the witnesses or attorneys engaged in taking the testimony may have any objections they make recorded with the testimony and reserved for the action of any court in which such evidence is thereafter sought to be admitted, but such court is not confined to objections made at the taking of the testimony of the Court of Inquiry. Without restricting the foregoing, the judge may allow the introduction of any documentary or real evidence which he deems reliable, and the testimony adduced before any grand jury.
[28] Art. 52.03
[29] The judge or his clerk has power to issue subpoenas which may be served within the same territorial limits as subpoenas issued in felony prosecutions or to summon witnesses before grand juries in this state.
[30] Art. 52.04
[31] All witnesses testifying in any Court of Inquiry have the same rights as to testifying as do defendants in felony prosecutions in this state. Before any witness is sworn to testify in any Court of Inquiry, he shall be instructed by the judge that he is entitled to counsel; that he cannot be forced to testify against himself; and that such testimony may be taken down and used against him in a later trial or trials ensuing from the instant Court of Inquiry. Any witness or his counsel has the right to fully cross-examine any of the witnesses whose testimony bears in any manner against him.
[32] Art. 52.05
[33] A person may be compelled to give testimony or produce evidence when legally called upon to do so at any Court of Inquiry; however, if any person refuses or declines to testify or produce evidence on the ground that it may incriminate him under laws of this state, then the judge may, in his discretion, compel such person to testify or produce evidence but the person shall not be prosecuted or subjected to any penalty or forfeiture for, on or account of, any transaction, matter or thing concerning which he may be compelled to testify or produce evidence at such Court of Inquiry.
[34] Art. 52.06
[35] Contempt of court in a Court of Inquiry may be punished by a fine not exceeding One Hundred Dollars ($100.00) and any witness refusing to testify may be attached and imprisoned until he does testify.
[36] Art. 52.07
[37] All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall be open to the public.
[38] Art. 52.08
[39] If it appear from a Court of Inquiry or any testimony adduced therein, that an offense has been committed, the Judge shall issue a warrant for the arrest of the offender as if complaint had been made and filed.
[40] The respondent's affidavit states as follows:
[41] STATE OF TEXAS
[42] COUNTY OF NUECES
[43] AFFIDAVIT
[44] I, Mike Westergren, Judge, 214th District Court of Nueces County, Texas, have good cause to believe that District Attorney Grant Jones and other members of his staff acting under color of law and his office have intentionally denied and impeded one Bill Jensen and others in the exercise and enjoyment of the right of free speech to criticize in any manner however founded or unfounded, the operation of the office of the District Attorney including, but not limited to the dissemination of information some of which is undeniably public record concerning the wisdom or lack of wisdom in the hiring and continued employment of certain employees, and all other matters arising out of said transaction concerning the use of the District Attorney's official powers for his own self-protection and private purposes not contemplated or authorized by law. Specifically it is my belief that Grant Jones, District Attorney, has engaged in conduct constituting the offense of Official Oppression defined by Sec. 39.02, Texas Penal Code.
[45] My belief is based upon information which I have received as well as my own review of the pleadings filed in Cause No. 88-CR-420-D, the State of Texas v. Bill Jensen.
[46] Relator asserts that respondent initially erred procedurally by failing to state a good cause to convene the Court of Inquiry as required by article 52.02(b)(1). Specifically he contends that by failing to comply with this section of article 52, respondent failed to invoke the authority of his court, and his order convening the Court of Inquiry is void.
[47] The full context of respondent's affidavit is set out above and in essence states that the respondent has good cause to believe that the relator and other members of his staff acting under color of law have intentionally denied . . . the right of free speech to criticize in any manner the operation of the office of the District Attorney including, but not limited to, the dissemination of information . . . of public record concerning . . . employment of certain employees and all other matters arising out of . . . the use of the District Attorney's official powers for his own self protection and private purposes . . . constituting the offense of Official Oppression defined by section 39.02 of the Texas Penal Code.
[48] The cases cited by relator and respondent generally discuss the requisites for good cause in affidavits made the basis for warrants. However, neither party has cited us to any case that supports the contention that the requisites of an affidavit setting forth good cause under article 52 are as stringent as the requirements to show good cause on a complaint or on an affidavit to obtain a search warrant.
[49] The purpose of a Court of Inquiry, as its title indicates, is to inquire and to ascertain if illegal activity has occurred or is occurring. It is merely an investigative procedure to inquire into alleged illegal activity. Article 52 does not require that the affiant state with certainty that good cause exists but requires an affidavit "stating a good cause establishing his belief. " (Emphasis added.) It appears that the legislative intent, in using the phrase "establishing his belief" as a modifier to the phrase "good cause," was to require a less stringent requirement to establish good cause in an affidavit used as a basis to convene a Court of Inquiry. The rationale appears to be that the court has sufficient facts before it to have good cause to convene a hearing to inquire whether there is or is not illegal activity that has occurred or is occurring. We conclude that respondent's order is not void for failure of the affidavit to state a good cause as required by article 52.02(b)(1).
[50] We also note that relator has not cited any cases that hold such an error would be jurisdictional.
[51] The relator next contends, in several points of error, that the respondent is disqualified because he (1) is interested in the outcome of the Court of Inquiry; (2) has been of counsel in the case; and (3) is the accuser in this case, and relator cannot cross-examine him.
[52] Article 5, section 11 of the Texas Constitution states that no judge shall sit in any case where he may be interested, and Rule 18a, Tex.R.Civ.P. states as follows:
[53] At least 10 days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals, or the Court of Appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case. The motion shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit. The motion shall be made on personal knowledge and shall set forth such facts that would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated.
[54] As heretofore noted, apparently some hearing was held before Judge Banales of the 105th District Court of Nueces County, pertaining to a motion to recuse. Because we do not have the record of that hearing, we do not know what allegations were made in the motion, and we do not know what disposition, if any, was made of the motion.
[55] Each of the relator's contentions made in the instant suit that the respondent is disqualified or should be recused may have been heard in the hearing before Judge Banales. Rule 18a(f) provides a method of appeal where a motion to recuse is denied.
[56] In the instant case, if the relator made all the allegations in the hearing before Judge Banales that he made in this case, and if his motion was denied, he had the right of appeal. In the event Judge Banales made no disposition of the relator's motion or in the event the allegations made by relator in the instant case were not made in the motion before Judge Banales, Rule 18a provides an adequate remedy at law for the relator.
[57] A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy at law. Strake v. Court of Appeals,704 S.W.2d 746, 747 (Tex.1986); State ex rel. Jerry Cobb v. Godfrey, 739 S.W.2d 47, 47 (Tex.Crim.App.1987). Because relator has an adequate remedy at law determining the issues of disqualification and recusal, a writ of mandamus is not the proper procedure to determine these issues.
[58] The relator also contends that the respondent's order is invalid because it fails to give adequate notice of the scope of the inquiry to be made.
[59] Relator does not contend that he has not received the 10-day statutory notice required by article 52.01(b)(2), but contends that the content of the respondent's affidavit is insufficient to give him adequate notice to defend himself as required by article I, section 10 of the Texas Constitution. Section 10 provides that an accused shall have the "right to demand the nature and cause of the accusation against him, and to have a copy thereof."
[60] Respondent's affidavit names one individual whose rights have been affected, it states what rights have been affected; it states in what case the alleged events have occurred; and it states what criminal statute has been violated. It does not state what the specific facts are, and, other than the relator, it does not specify the names of the parties referred to in the affidavit.
[61] Neither article I, section 10 of the Texas Constitution, nor article 52.01(b)(2), Tex. Code Crim. P. set forth the extent to which an affidavit must state specific facts to give adequate notice to persons subpoenaed to testify at a Court of Inquiry. We can find no cases on point, so we look to other case law for guidance.
[62] It is well established in Texas that in felony prosecutions, an indictment must specifically state the facts upon which the State relies so as to give the defendant adequate notice of the crime he allegedly committed. However, it appears to be equally well established that the requisites of a complaint or affidavit to support a prosecution under an information are not as stringent as the requirements for a complaint for a search or arrest warrant. Wells v. State, 516 S.W.2d 663 (Tex.Crim.App. 975); Gholson v. State, 667 S.W.2d 168, 177 (Tex.App. -- Houston [14th Dist.] 1983, pet. ref'd).
[63] If the requirements or the affidavits were less stringent, as in Wells and Gholson, where charged had been made and the defendants had been placed under arrest, it would seem less likely in an investigative procedure as here, where no charges have been filed and no arrest has been made, that the more stringent requirements of an affidavit for an arrest or search warrant would be required.
[64] Under federal law, where subpoenas have been issued by an administrative agency and notice requirements have been attacked, the United States Supreme Court has held that the due process clause of the Fifth Amendment is not implicated because an administrative investigation adjudicates no legal rights. Likewise, the Court held that the confrontation clause of the Sixth Amendment is not offended because criminal proceedings have not been initiated. S.E.C. v. Jerry T. O'Brien, Inc., 467 U. S. 735, 81 L. Ed. 2d 615, 104 S. Ct. 2720 (1984).
[65] As in O'Brien, the present case is an investigative matter, and no criminal proceedings have been initiated. Similarly, as in Wells and Gholson, it would seem that less stringent requirements for an affidavit would be necessary. This is especially so where the procedure is only investigative in nature, and criminal charges may or may not result. We conclude that the respondent's affidavit provides the relator with sufficient notice to apprise him of the scope of the inquiry to be made in the Court of Inquiry ordered by the respondent.
[66] Finally, we disagree with relator that article 52 is unconstitutional on its face and deprives him of his due process rights. A statute may be consistent with due process but by its application, or use, or by construction, be applied in a manner that would deny due process. Smith v. State, 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164 (1940).
[67] Although the Supreme Court of the United States in its memorandum opinion in McClelland v. State, 382 U.S. 928, 15 L. Ed. 2d 340, 86 S. Ct. 307 (1965), noted that the present Texas Court of Inquiry statute has "grave constitutional questions by conducting such proceedings," we are of the opinion that the constitutional questions alluded to by that court will only arise if in the statute's usage and construction, constitutional rights during the proceedings are not afforded to the parties involved. At the present time, the Court of Inquiry has not yet convened and the proceedings have not commenced. Although it may prove difficult under article 52 to provide constitutional safeguards, we will not presume that the respondent will deny the relator his due process constitutional rights when the Court of Inquiry is held. Because the relator has not shown that the respondent has clearly abused his discretion or violated a duty imposed upon him by the law, and because the relator has an adequate remedy at law, we hold that the relator is not entitled to the relief he has prayed for.
[68] This Court's order staying the Court of Inquiry hearing is hereby set aside, and the relator's petition for mandamus is overruled.
Judges Footnotes
[69] *fn* Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code An.. § 74.003 (Vernon 1988).
19890518
© 1998 VersusLaw Inc.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
Tuesday, October 16, 2007
Securing convictions malum in se when the "issue" is regulatory "white collar" in nature......if ur white that is.....
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~`~~~~~~~~~~~~~
n Nueces County and throughout South Texas, Mary Leyendecker and Allen Fiszman organized so well. Thanks to county chairs who helped. And, as with good Democrats throughout the country, even folks with differences set them aside to help. The names of people who don't ordinarily come together came together for this campaign, and I thank each and every one of you.
Special thanks to Ami Sanchez and Garreth Broesche for undertaking event and finance efforts on an increasingly large scale. And, to Belinda Castro and Linda George Smith for extraordinary volunteer work.
In Nacogdoches County, thanks to Brenda Willett whose wise counsel and hard work got out the flyers we needed.
In North Texas, we've had so many people to thank, and wanted to make sure we include Paul and Carolyn Hood in Plano, Donna Turman, Trudy Hess, Tom Marking, Liz Wally, Grace Morrison, Jackie Fleschman, Terry Taylor, and Larry Shulman.
Thank you to Deborah Landis for the hundreds of calls, making a huge difference into East Texas, and the same for wonderful folks too numerous to name, but including Louise Chandler, and Sharon McMahon and Resa Harrison and Diane Podorsky and Janie Beltran and Alison Dieter and Anne Sigler of Huntsville and Barbara and Calvin Simper. And of course to Shirley Walston for her Smith County calls.
I will be mentioning my friends in Harris County, but the huge percentage improvements in Harris didn't just happen and the thousands of people who found their yet-changed-again polling places across the state thanks to hard work are to be congratulated.
Thanks to BAND and John Cobarruvias for poll dressing and GOTV, once again. The NASA funding cuts have hit the community and our scientific future. The hurricane damage along the Texas Coast and in East Texas doesn't receive the attention or the dollars that other states have received, yet those Texas communities which have been devastated know the struggles caused by federal inattention and incompetence. The voters in East Texas who got to the polls are very much appreciated. Recent visits to East Texas still show the story of devasation and loss, not limited to the disasters other states suffered. The difference: other states' leaders fought hard and successfully for their federal dollars, while Texas received a pittance. It's a pattern which has left Texas ranked 47th in bacon brought home by our state-wide elected officials who wrongly claim success and popularity.
BAR
Permalink
April 13, Note from the BlackDems
Congratulations! We are proud to have supported you Barbara and we plan to continue to do so in the general election as well. You earned your victory as well as the respect of our membership with your sincerity and competency.
James E. Robertson, Jr.
Permalink
April 11 Election Day Blog
I won the runoff with 60 percent of the vote, and the papers now voice a recognition of the potential strength of the grass roots. Thousands of indivduals were responsible for this decisive statewide win. It's early on April 12. I'm getting ready to head out to Austin after my morning run for meetings and a news conference for the statewide Democratic candidates. We are enjoying so many well-wishers' e mails and status reports. Mary Leyendecker organized Nueces County and worked tirelessly, and reports from Corpus Christi, where grass roots efforts turned around the primary results.
"Nueces Co. Courthouse was filled with supporters for the local races. Many people shook my hand - pals from the campaign trail - they voted for you and are so happy for your success statewide and in Nueces Co. Mike Creacy, his wife, their son William and numerous others are due a world of thanks for their support, expertise, excellent ideas, and hands-on efforts... never mind that today was election day, and another might have said enough's enough, Mike and his team copied and distributed stacks of campaign flyers to make that extra effort to get out the vote. We got signs up at all the sites. Ms. Josie Suarez said she and her family campaigned so effectively they believe they can attribute 800 votes in Robstown to their efforts."
One person can make a huge difference. Johnny Shelton came to the Victory Party sunburned from tremendous blockwalking for us, yet again. Lloyd Criss, Galveston County Chair, organized Galveston beautifully, bought ads, sent out cards. Lloyd was one of the first county chairs to endorse me and his in-kind help was immeasurable, as were so many of the county chairs, who personally donated and created a network of grass roots support. Galveston County's efforts in the runoff increased my vote from 42% in the first primary to 65.95% in the runoff. Their mailings, newspaper ads, calls, door-to-door, and polling place work was brilliant. Lubbock field was extraordinarily well organized, and county chair Johnnie Jones, Sue Wexler and our next Congressman Robert Ricketts have been with me from the beginning.
And from Burnet County, the extraordinarily hard working Democratic Chair Shirley Schmidt sent a great e mail as a status report. Guy Stuart and his family have done more than we can list, as well. Shirley wrote:
"....Burnet County, 157 votes for Radnofsky to 14 for Kelly. We hope that is the story throughout Texas. I was on the phone all day today. When I saw the last Democratic voters in all 4 Precincts, there were voters I'd called today. The last voters in two precincts were individuals who hadn't voted in the primary but promised to vote today, and they showed up. As many of 1/3 of the voters in at least one Precinct were individuals I'd called today."
I hope this small selection of the reports gives an idea across the state, every region, every area, of the grass roots efforts in small towns, rural Texas, which must not be forgotten, as well as our cities, which face such tremendous burdens. We've updated the issues chart on the issues section, and will be adding a sobering figure which answers my opponent's boast that she has brought home the bacon: Texas ranks 47th out of our 50 states in such funding brought home.
As the issues we've been highlighting hit Texans hard, we will continue to thank the grass roots folks who have educated me, helped me with financial and moral support and who made this win possible, but it would take thousands and thousands of blog entries to do so. The numbers paint an extraordinary picture of help across the state, as does a nearly twenty point improvement in five weeks.
My family and I voted together today, after I took my mother to the polls. We enjoyed the day thoroughly and really liked the news at the end of the day as AP was the first to call the race at an early hour. Maria Selma's was packed, and it was exciting to go from staffer phone to staffer phone as calls of support and congratulations came in.
We also hit the one million dollars raised mark on April 11. A Republican friend donated 4200 dollars to get us to the edge. The online donation from Carol Lewis (the olympic track star and broadcaster), sister to Radnofsky supporter and Olympian Carl Lewis appears to have hit the one millionth mark, and several others hit about the same time, including ones from my law firm partners to whom who I bid farewell this past Monday as I announced my departure from Vinson and Elkins.
The office is running smoothly with volunteer personnel and staff staying busy and our donated furniture and electronics beautifully cobbled together.
We were able to thank some but not all our well wishers and hard workers on the webcast last night, and to see the great band's performance and hear about others who helped, please view and listen to the webcast on-line. Jet Set, the phenomenal band, also recorded the campaign song: http://radnofsky.com/press/Barbara%20Ann.mp3
We know Senator Hutchison and her staff study my blog, so we want them to know I'll be in Austin, San Antonio, Houston, and DFW in the next week, then on to DC where the Democratic Senate Leadership co-hosts a fundraiser for me on April 25. We await Sen. Hutchison's dates for a series of debates, as she has finally responded in the press to my call for debates that she's looking forward to discussing the issues in public. Let's hope she makes good on what her spokesmen say, as this race has been correctly characterized by commentators as a referendum on the direction in which this state and country are headed. The downfall of DeLay emphasizes this race, and that's good, as is life. Thanks. BAR
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~`~~~~~~~~~~~~~
n Nueces County and throughout South Texas, Mary Leyendecker and Allen Fiszman organized so well. Thanks to county chairs who helped. And, as with good Democrats throughout the country, even folks with differences set them aside to help. The names of people who don't ordinarily come together came together for this campaign, and I thank each and every one of you.
Special thanks to Ami Sanchez and Garreth Broesche for undertaking event and finance efforts on an increasingly large scale. And, to Belinda Castro and Linda George Smith for extraordinary volunteer work.
In Nacogdoches County, thanks to Brenda Willett whose wise counsel and hard work got out the flyers we needed.
In North Texas, we've had so many people to thank, and wanted to make sure we include Paul and Carolyn Hood in Plano, Donna Turman, Trudy Hess, Tom Marking, Liz Wally, Grace Morrison, Jackie Fleschman, Terry Taylor, and Larry Shulman.
Thank you to Deborah Landis for the hundreds of calls, making a huge difference into East Texas, and the same for wonderful folks too numerous to name, but including Louise Chandler, and Sharon McMahon and Resa Harrison and Diane Podorsky and Janie Beltran and Alison Dieter and Anne Sigler of Huntsville and Barbara and Calvin Simper. And of course to Shirley Walston for her Smith County calls.
I will be mentioning my friends in Harris County, but the huge percentage improvements in Harris didn't just happen and the thousands of people who found their yet-changed-again polling places across the state thanks to hard work are to be congratulated.
Thanks to BAND and John Cobarruvias for poll dressing and GOTV, once again. The NASA funding cuts have hit the community and our scientific future. The hurricane damage along the Texas Coast and in East Texas doesn't receive the attention or the dollars that other states have received, yet those Texas communities which have been devastated know the struggles caused by federal inattention and incompetence. The voters in East Texas who got to the polls are very much appreciated. Recent visits to East Texas still show the story of devasation and loss, not limited to the disasters other states suffered. The difference: other states' leaders fought hard and successfully for their federal dollars, while Texas received a pittance. It's a pattern which has left Texas ranked 47th in bacon brought home by our state-wide elected officials who wrongly claim success and popularity.
BAR
Permalink
April 13, Note from the BlackDems
Congratulations! We are proud to have supported you Barbara and we plan to continue to do so in the general election as well. You earned your victory as well as the respect of our membership with your sincerity and competency.
James E. Robertson, Jr.
Permalink
April 11 Election Day Blog
I won the runoff with 60 percent of the vote, and the papers now voice a recognition of the potential strength of the grass roots. Thousands of indivduals were responsible for this decisive statewide win. It's early on April 12. I'm getting ready to head out to Austin after my morning run for meetings and a news conference for the statewide Democratic candidates. We are enjoying so many well-wishers' e mails and status reports. Mary Leyendecker organized Nueces County and worked tirelessly, and reports from Corpus Christi, where grass roots efforts turned around the primary results.
"Nueces Co. Courthouse was filled with supporters for the local races. Many people shook my hand - pals from the campaign trail - they voted for you and are so happy for your success statewide and in Nueces Co. Mike Creacy, his wife, their son William and numerous others are due a world of thanks for their support, expertise, excellent ideas, and hands-on efforts... never mind that today was election day, and another might have said enough's enough, Mike and his team copied and distributed stacks of campaign flyers to make that extra effort to get out the vote. We got signs up at all the sites. Ms. Josie Suarez said she and her family campaigned so effectively they believe they can attribute 800 votes in Robstown to their efforts."
One person can make a huge difference. Johnny Shelton came to the Victory Party sunburned from tremendous blockwalking for us, yet again. Lloyd Criss, Galveston County Chair, organized Galveston beautifully, bought ads, sent out cards. Lloyd was one of the first county chairs to endorse me and his in-kind help was immeasurable, as were so many of the county chairs, who personally donated and created a network of grass roots support. Galveston County's efforts in the runoff increased my vote from 42% in the first primary to 65.95% in the runoff. Their mailings, newspaper ads, calls, door-to-door, and polling place work was brilliant. Lubbock field was extraordinarily well organized, and county chair Johnnie Jones, Sue Wexler and our next Congressman Robert Ricketts have been with me from the beginning.
And from Burnet County, the extraordinarily hard working Democratic Chair Shirley Schmidt sent a great e mail as a status report. Guy Stuart and his family have done more than we can list, as well. Shirley wrote:
"....Burnet County, 157 votes for Radnofsky to 14 for Kelly. We hope that is the story throughout Texas. I was on the phone all day today. When I saw the last Democratic voters in all 4 Precincts, there were voters I'd called today. The last voters in two precincts were individuals who hadn't voted in the primary but promised to vote today, and they showed up. As many of 1/3 of the voters in at least one Precinct were individuals I'd called today."
I hope this small selection of the reports gives an idea across the state, every region, every area, of the grass roots efforts in small towns, rural Texas, which must not be forgotten, as well as our cities, which face such tremendous burdens. We've updated the issues chart on the issues section, and will be adding a sobering figure which answers my opponent's boast that she has brought home the bacon: Texas ranks 47th out of our 50 states in such funding brought home.
As the issues we've been highlighting hit Texans hard, we will continue to thank the grass roots folks who have educated me, helped me with financial and moral support and who made this win possible, but it would take thousands and thousands of blog entries to do so. The numbers paint an extraordinary picture of help across the state, as does a nearly twenty point improvement in five weeks.
My family and I voted together today, after I took my mother to the polls. We enjoyed the day thoroughly and really liked the news at the end of the day as AP was the first to call the race at an early hour. Maria Selma's was packed, and it was exciting to go from staffer phone to staffer phone as calls of support and congratulations came in.
We also hit the one million dollars raised mark on April 11. A Republican friend donated 4200 dollars to get us to the edge. The online donation from Carol Lewis (the olympic track star and broadcaster), sister to Radnofsky supporter and Olympian Carl Lewis appears to have hit the one millionth mark, and several others hit about the same time, including ones from my law firm partners to whom who I bid farewell this past Monday as I announced my departure from Vinson and Elkins.
The office is running smoothly with volunteer personnel and staff staying busy and our donated furniture and electronics beautifully cobbled together.
We were able to thank some but not all our well wishers and hard workers on the webcast last night, and to see the great band's performance and hear about others who helped, please view and listen to the webcast on-line. Jet Set, the phenomenal band, also recorded the campaign song: http://radnofsky.com/press/Barbara%20Ann.mp3
We know Senator Hutchison and her staff study my blog, so we want them to know I'll be in Austin, San Antonio, Houston, and DFW in the next week, then on to DC where the Democratic Senate Leadership co-hosts a fundraiser for me on April 25. We await Sen. Hutchison's dates for a series of debates, as she has finally responded in the press to my call for debates that she's looking forward to discussing the issues in public. Let's hope she makes good on what her spokesmen say, as this race has been correctly characterized by commentators as a referendum on the direction in which this state and country are headed. The downfall of DeLay emphasizes this race, and that's good, as is life. Thanks. BAR
WAKE~UP~CALL ...caught you in the ACT~Cornyn and Keller two rotten peons in a pod............
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
COMMENTARY: W. GARDNER SELBY
Cornyn vote on kids' health insurance might not hurt him
Do voters overlook health care as a priority issue?
Listen to this article or download audio file.Click-2-Listen
By W. Gardner Selby
AMERICAN-STATESMAN STAFF
Thursday, October 11, 2007
U.S. Sen. John Cornyn, R-Texas, assured himself of being peppered when he voted against bolstering the Children's Health Insurance Plan serving children of the working poor.
Even so, two political consultants insist that his position — rating a Democrat-steered approach too expensive and too expansive — won't hurt him.
Alicia Mireles
AMERICAN-STATESMAN
(enlarge photo)
W. Gardner Selby
MORE W. GARDNER SELBY
W. GARDNER SELBY
* Cornyn vote on kids' health insurance might not hurt him
* Two governors handled mansion renovation differently
* Unless he confesses, it's not Dewhurst's fault Texas has no early primary
* Hutchison may leave early, won't seek re-electio
What's this?
Todd Smith of Austin and Craig Murphy of Arlington should know. They coached then-state Rep. Arlene Wohlgemuth in her unsuccessful 2004 challenge to U.S. Rep. Chet Edwards, D-Texas.
Wohlgemuth snagged the GOP nomination after stressing her role whittling the Texas CHIP to help the state plug a shortfall without higher taxes. Edwards then launched a TV ad painting her as slashing health care for children.
"Very well crafted," Smith said. "Extremely effective."
But no Republican will make cutting CHIP a campaign centerpiece next year, he said, unless they tumble into a trap.
Wohlgemuth scrambled, Murphy suggested, because she wasn't widely known before Edwards popped her. Cornyn shouldn't have an identity problem, nor will he lack resources to deliver his message.
The other Texas senator, Kay Bailey Hutchison, voted for the CHIP proposal, though she conceded that she had valid concerns about the measure and said President Bush should sit down with Congress to ensure CHIP's continuation.
After vetoing the proposal opposed by Cornyn, Bush said he's open to negotiations. And Cornyn has said he supports a lesser expenditure.
Political fallout will ultimately turn on whether voters choose candidates based on health care. Other topics — perhaps war, immigration, education or taxes — are likely to rule.
In last year's Senate race, for instance, the Iraq war proved to be the major issue. Meanwhile, Hutchison said in a debate that a Republican-ushered ban on the government negotiating lower prescription drug prices for senior citizens should be looked at. Her comment drew scant attention. She and Cornyn later voted against bringing up a House-approved measure permitting negotiations, saying the current system works well.
Health care debates certainly fuel suspicions. Cornyn has said the sought CHIP changes amount to a taxpayer-funded benefit for the middle class that is likely to hurt private insurance providers. Scott McCown of the Austin-based Center for Public Policy Priorities said Cornyn may have misunderstood or misrepresented the proposal.
Opponents of the plan, McCown said, are upset at CHIP because it works: "They don't want to provide health care to the American people, and they don't want to pay for it. It's that simple."
I have doubts; simplicity out of Washington would be too much of a miracle.
wgselby@statesman.com; 445-3644 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\
Cornyn must be stupid, I am sorry, Lo siento, he is just clueless.
Why should taxpayers pay his AND for his entourage AND his family "taxpayer funded health care"?
They're SPESHHHal.....like "the church lady" says it on SNL.
What a freeloading carpetbagger! He and his Patriot group familia should move to Iraq along with their "OPM" funded JOB.
Healthcare we pay for.........but he is special?
Yeah , so slow to show his patriotism when it is not BENEFICIAL to his so called "Patriot group".
Since he does not care anymore.... and, it is obvious,"I don't feel so bad".......What a dud, maybe if the GOP was serious about backing him he would have more money than Mikal Watts.
But according to Stopcornyn.com's interview "Rick Perry Noriega" said he looks forward to "helping Cornyn enjoy"........that Noriega has informed and acted like he was one of those desperados, claiming dire straits, and in financial need..... they are no doubt stupid,since it was BS in his own words Noreiga states: "As it turns out, I have the necessary resources as well."
What was that warning Eisenhower warned us about?
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
COMMENTARY: W. GARDNER SELBY
Cornyn vote on kids' health insurance might not hurt him
Do voters overlook health care as a priority issue?
Listen to this article or download audio file.Click-2-Listen
By W. Gardner Selby
AMERICAN-STATESMAN STAFF
Thursday, October 11, 2007
U.S. Sen. John Cornyn, R-Texas, assured himself of being peppered when he voted against bolstering the Children's Health Insurance Plan serving children of the working poor.
Even so, two political consultants insist that his position — rating a Democrat-steered approach too expensive and too expansive — won't hurt him.
Alicia Mireles
AMERICAN-STATESMAN
(enlarge photo)
W. Gardner Selby
MORE W. GARDNER SELBY
W. GARDNER SELBY
* Cornyn vote on kids' health insurance might not hurt him
* Two governors handled mansion renovation differently
* Unless he confesses, it's not Dewhurst's fault Texas has no early primary
* Hutchison may leave early, won't seek re-electio
What's this?
Todd Smith of Austin and Craig Murphy of Arlington should know. They coached then-state Rep. Arlene Wohlgemuth in her unsuccessful 2004 challenge to U.S. Rep. Chet Edwards, D-Texas.
Wohlgemuth snagged the GOP nomination after stressing her role whittling the Texas CHIP to help the state plug a shortfall without higher taxes. Edwards then launched a TV ad painting her as slashing health care for children.
"Very well crafted," Smith said. "Extremely effective."
But no Republican will make cutting CHIP a campaign centerpiece next year, he said, unless they tumble into a trap.
Wohlgemuth scrambled, Murphy suggested, because she wasn't widely known before Edwards popped her. Cornyn shouldn't have an identity problem, nor will he lack resources to deliver his message.
The other Texas senator, Kay Bailey Hutchison, voted for the CHIP proposal, though she conceded that she had valid concerns about the measure and said President Bush should sit down with Congress to ensure CHIP's continuation.
After vetoing the proposal opposed by Cornyn, Bush said he's open to negotiations. And Cornyn has said he supports a lesser expenditure.
Political fallout will ultimately turn on whether voters choose candidates based on health care. Other topics — perhaps war, immigration, education or taxes — are likely to rule.
In last year's Senate race, for instance, the Iraq war proved to be the major issue. Meanwhile, Hutchison said in a debate that a Republican-ushered ban on the government negotiating lower prescription drug prices for senior citizens should be looked at. Her comment drew scant attention. She and Cornyn later voted against bringing up a House-approved measure permitting negotiations, saying the current system works well.
Health care debates certainly fuel suspicions. Cornyn has said the sought CHIP changes amount to a taxpayer-funded benefit for the middle class that is likely to hurt private insurance providers. Scott McCown of the Austin-based Center for Public Policy Priorities said Cornyn may have misunderstood or misrepresented the proposal.
Opponents of the plan, McCown said, are upset at CHIP because it works: "They don't want to provide health care to the American people, and they don't want to pay for it. It's that simple."
I have doubts; simplicity out of Washington would be too much of a miracle.
wgselby@statesman.com; 445-3644 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\
Cornyn must be stupid, I am sorry, Lo siento, he is just clueless.
Why should taxpayers pay his AND for his entourage AND his family "taxpayer funded health care"?
They're SPESHHHal.....like "the church lady" says it on SNL.
What a freeloading carpetbagger! He and his Patriot group familia should move to Iraq along with their "OPM" funded JOB.
Healthcare we pay for.........but he is special?
Yeah , so slow to show his patriotism when it is not BENEFICIAL to his so called "Patriot group".
Since he does not care anymore.... and, it is obvious,"I don't feel so bad".......What a dud, maybe if the GOP was serious about backing him he would have more money than Mikal Watts.
But according to Stopcornyn.com's interview "Rick Perry Noriega" said he looks forward to "helping Cornyn enjoy"........that Noriega has informed and acted like he was one of those desperados, claiming dire straits, and in financial need..... they are no doubt stupid,since it was BS in his own words Noreiga states: "As it turns out, I have the necessary resources as well."
What was that warning Eisenhower warned us about?
Saturday, July 21, 2007
Double Jeopardy is when you get detention then you are still sent to court for the same incident at school.....
Click for home page
March 6, 2007
The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068 Opinion No. GA-0526
Re: Whether a municipality may prohibit registered sex offenders from living in certain locations within the municipality (RQ-0526-GA)
Dear Senator Nelson:
You state that municipalities "across the state either have passed or are considering passing municipal ordinances that prohibit registered sex offenders from living within a specified distance from locations where children typically congregate, including day-care facilities, schools, public swimming pools, and parks and playgrounds." (1) You ask whether a municipality may adopt such ordinances. See Request Letter, supra note 1, at 1. You particularly ask us to address two issues:
(1) whether Chapter 508, Government Code, Article 42.12, Code of Criminal Procedure, or Chapter 62, Code of Criminal Procedure, preempts or otherwise limits a municipality's authority in this regard and (2) whether Section 3 or 19, Article I, Texas Constitution, or any other provision of the Texas Constitution limits a municipality's authority in this regard.
Id. at 2.
We note preliminarily that no particular adopted or proposed ordinance is at issue. Thus, our answer is general and does not speak to the preemption or constitutionality of a specific ordinance.
In addition, we note that you do not specify whether your question concerns general-law or home-rule municipalities. See id. at 1-2. A general-law municipality is a political subdivision "created by the State and, as such, possess[es] those powers and privileges that the State expressly confers upon [it]." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). We have found no law authorizing a general-law municipality to adopt this type of residence restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live.
On the other hand, a home-rule municipality "do[es] not depend on the legislature for specific grants of authority but, instead, ha[s] a constitutional right of self-government and look[s] to the legislature only for specific limitations on [its] power." City of Laredo v. Webb County, No. 03-05-00168-CV, 2005 WL 3234768, at *3 (Tex. App.--Austin Dec. 1, 2005, no pet.); see Tex. Const. art. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). We thus consider whether the Legislature has specifically limited a home-rule municipality's authority to adopt ordinances like those you generally describe.
I. Whether Residence Restrictions Adopted by Home-Rule Municipalities are Preempted by Government Code Chapter 508, Code of Criminal Procedure Article 42.12, or Code of Criminal Procedure Chapter 62
Despite its broad authority, a home-rule municipality may not adopt an ordinance that is "inconsistent with the Constitution of the State, or [with] the general laws enacted by the Legislature of this State." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5); see City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660, 663 (Tex. App.--Corpus Christi 2003, pet. denied). Consequently, a municipal ordinance "that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491. Nevertheless, "the mere fact that the legislature has enacted a law addressing a subject does not mean [that the] subject matter is completely preempted." Id. (quoting City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990)). A court will not hold a general law and a municipal ordinance "repugnant to each other if any other reasonable construction leaving both in effect can be reached." Id. (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). And if the Legislature chooses to preempt a subject matter usually encompassed within a home-rule municipality's broad powers, "it must do so with unmistakable clarity." Id.
You suggest that Government Code section 508.187, Code of Criminal Procedure article 42.12, or Code of Criminal Procedure chapter 62 may preempt the home-rule municipalities' ordinances. See Request Letter, supra note 1, at 2. We will discuss chapter 62 of the Code of Criminal Procedure first.
Chapter 62 establishes a sex-offender-registration program under which persons with a "reportable conviction or adjudication" or who are "required to register as a condition of parole, release to mandatory supervision, or community supervision" must register "with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." Tex. Code Crim. Proc. Ann. art. 62.051(a) (Vernon Supp. 2006); see also id. art. 62.001(1) (defining "Department"); id. art. 62.004 (requiring the Department of Public Safety to determine "which local law enforcement authority serves as [a] person's primary registration authority"). The phrase "reportable conviction or adjudication" is defined to include various sex offenses, such as indecency with a child, possessing or promoting child pornography, burglary with intent to commit a sex offense, and aggravated kidnapping with intent to sexually abuse a person younger than 17 years old. Id. art. 62.001(5). Compare Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386-87 (defining "reportable conviction or adjudication"), with Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4050-51 (same). Depending on the precise sex offense the person committed, a person's duty to register as a sex offender expires when the person dies or on the tenth anniversary of the date on which (1) the person was released from a penal institution or discharged from community supervision, or (2) the court dismissed the criminal proceedings against the person. Tex. Code Crim. Proc. Ann. art. 62.101 (Vernon Supp. 2006). Failing to register as required is a criminal offense. See id. art. 62.102.
The statutory duty to register as a sex offender does not conflict with a municipal ordinance limiting the area in which a sex offender must live. Accordingly, chapter 62 does not preempt the municipal ordinances.
Article 42.12, section 13B of the Code of Criminal Procedure and section 508.187 of the Government Code (the "child-safety-zone statutes") both provide in similar terms for the establishment of a child-safety zone that certain sex offenders may not enter. Code of Criminal Procedure article 42.12, section 13B pertains to defendants placed on community supervision, while Government Code section 508.187 pertains to convicted defendants who have served a sentence for a sex offense and are placed on parole. See id. art. 42.12, § 13B(a); Tex. Gov't Code Ann. § 508.187(a)-(b) (Vernon 2004). Under both statutes, a defendant or convicted defendant who, as a condition of community supervision or parole, must adhere to child-safety-zone provisions may not:
(A) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(B) go in, on, or within [1,000 feet, under article 42.12, section 13B or a distance specified by the panel under Government Code section 508.187(b)(1)(B)] of premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
Tex. Gov't Code Ann. § 508.187(b)(1) (Vernon 2004); cf. Tex. Code Crim. Proc. Ann. art. 42.12, § 13B(a)(1) (Vernon Supp. 2006). Subsection (B) of the child-safety-zone statutes is particularly relevant to our preemption inquiry.
The child-safety-zone statutes are not inconsistent with home-rule municipality residence restrictions as you have described them. See Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5). A sex offender may comply with both the child-safety-zone statutes and a home-rule municipality's residence restrictions by staying out of the areas described in both. In this way, the state statutes and the municipal ordinances are not repugnant; instead, they are complementary. See id. at 491 (quoting City of Beaumont, 291 S.W. at 206).
Moreover, nothing in either of the child-safety-zone statutes evidences an unmistakably clear legislative intent to preempt a home-rule municipality's authority to regulate where sex offenders may live. See id. at 491. Certainly, neither child-safety-zone statute expressly preempts municipal regulation. Cf. Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (Vernon Supp. 2006) (expressly restricting a home-rule municipality's authority to impose stricter standards on premises or businesses required to have a license or permit under the Alcoholic Beverage Code and setting out the Legislature's intent that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state"); Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491-92 (stating that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold"). In addition, nothing in the child-safety-zone statutes' legislative history suggests an intent to preempt municipal regulation. See generally Senate Comm. on Crim. Justice, Bill Analysis 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); House Comm. on Crim. Jurisprudence 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); see House Research Org., Bill Analysis 1, 3, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995).
Because the child-safety-zone statutes and municipal residence restrictions are not inconsistent and because the child-safety-zone statutes do not "with unmistakable clarity" preempt a home-rule municipality's authority to legislate in this area, we conclude that state law does not preempt municipal residence restrictions generally. (2) Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491.
II. Whether Residence Restrictions Adopted by Home-Rule Municipalities Contravene Various Provisions of the Texas Constitution
You also ask whether article I, section 3 or 19, "or any other provision of the Texas Constitution" limits a home-rule municipality's authority to adopt residence restrictions. Request Letter, supra note 1, at 2. Article I, section 3, like its federal counterpart found in the Fourteenth Amendment to the United States Constitution, guarantees "all persons similarly situated . . . equal protection under the laws of this [s]tate and of the United States." Nonn v. State, 117 S.W.3d 874, 881-82 (Tex. Crim. App. 2003); see Tex. Const. art. I, § 3; see also U.S. Const. amend. XIV, § 1. Texas cases apply federal standards "when determining whether a statute violates equal protection under either provision." Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990). Under those standards, when a law creates a classification that "does not infringe upon fundamental rights or does not burden an inherently suspect class, equal protection requires only that the statutory classification . . . rationally relate[] to a legitimate state interest." Id. "In determining whether or not a state law violates the Equal Protection Clause," a court must "consider the facts and circumstances behind the law, the interests [that] the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 (1968). Given that we have no particular municipal ordinance before us here, we cannot perform an equal-protection analysis. Courts that have considered specific state statutory residence restrictions in the context of an equal-protection analysis, however, have held that the residence restrictions do not impinge upon fundamental rights or burden an inherently suspect class and that the residence restrictions rationally relate to the state's legitimate interest in promoting children's safety. The residence restrictions that have been considered thus were found not to violate the Federal Equal Protection Clause. (3)
Article I, section 19 of the Texas Constitution, which prohibits the deprivation "of life, liberty, property, privileges, or immunities" without "due course of the law," is nearly identical to the Federal Due Process Clause, which is found in the Fourteenth Amendment to the United States Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Compare Tex. Const. art. I, § 19, with U.S. Const. amend. XIV, § 1. In matters of procedural due process, Texas courts traditionally follow "contemporary federal due process interpretations of procedural due process issues." Than, 901 S.W.2d at 929. A court's review of a due-process claim requires a two-part analysis: (1) whether the liberty or property interests allegedly involved are entitled to procedural due-process protection; and (2) if so, what process is due. Id. The Texas Supreme Court, quoting the United States Supreme Court, has indicated that the liberty interests protected by procedural due process mirror those protected by the constitutional equal-protection guarantees:
In defining the scope of protected liberty interests under the Fourteenth Amendment, the United States Supreme Court has stated that a liberty interest:
[D]enotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire usefulknowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Id. at 929-30 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)). A property interest to which procedural due process applies is one that is either vested or springs from state law. See Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App.--Austin 1992, writ denied).
Whether, in a particular instance, a sex offender subject to a municipal residence restriction can succeed in a case alleging that the residence restriction violates his or her constitutional right to procedural due process is a question that a court must decide after determining the relevant facts. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). To date no sex offender has successfully persuaded a court that a residence restriction violated the offender's procedural due process rights. See, e.g., Doe, 405 F.3d at 709 (concluding that the absence of an individualized hearing to determine a sex offender's dangerousness "does not offend principles of procedural due process"); State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005) (finding that the plaintiff "has not even explained how the [Iowa] residency restriction statute" violates "a private interest in freedom of choice in residence").
Finally, you ask if any other provision of the Texas Constitution limits a home-rule municipality's authority to impose residence restrictions. See Request Letter, supra note 1, at 2. We know of no Texas case considering challenges to residence restrictions on state constitutional grounds. We note, however, that sex offenders in other states have raised numerous federal constitutional provisions, but none have successfully argued that a residence restriction was unconstitutional. (4) Given the fact-intensive nature of any constitutional analysis of a specific home-rule municipality's ordinance, we will not consider the possible claims generally here.
S U M M A R Y
State law does not preempt a home-rule municipality's ordinance prohibiting registered sex offenders from living within a specified distance from locations where children typically congregate. Whether a particular ordinance is permitted by the Texas Constitution is a question that must be determined by a court after considering all of the relevant facts applicable to a specific ordinance; to date, however, no court has found that a statutory residence restriction violates any federal constitutional provision.
Very truly yours,
Abbott signature
GREG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
Footnotes
1. Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 29, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2. Several bills already have been filed for the Eightieth Legislative Session that prescribe state-wide residence restrictions for sex offenders. See, e.g., Tex. S.B. 94, 80th Leg., R.S. (2007); Tex. S.B. 88, 80th Leg., R.S. (2007); Tex. H.B. 203, 80th Leg., R.S. (2007); Tex. H.B. 62, 80th Leg., R.S. (2007). We do not consider in this opinion whether any of these bills, if adopted, will preempt municipal residence restrictions.
3. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013, 1016 (8th Cir. 2006) (considering the constitutionality of an Arkansas law prohibiting certain high-risk sex offenders from residing within 2,000 feet of the property on which a public or private elementary or secondary school or daycare facility is located); Doe v. Miller, 405 F.3d 700, 704, 711-14 (8th Cir.) (considering the constitutionality of an Iowa statute that prohibits a person convicted of certain sex offenses from residing within 2,000 feet of a school or registered child-care facility), cert. denied, 126 S. Ct. 757 (2005); Graham v. Henry, No. 06 CV 381 TCK FHM, 2006 WL 2645130, at *1, *8 (N.D. Okla. 2006) (considering the constitutionality of an Oklahoma statute prohibiting certain sex offenders from residing within 2,000 feet of a public or private school, educational institution, playground, park, or licensed child-care facility); People v. Leroy, 828 N.E.2d 769, 775, 778 (Ill. App. Ct. 2005) (considering the constitutionality of an Illinois statute prohibiting certain sex offenders from knowingly residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age).
4. See, e.g., Weems, 453 F.3d at 1015, 1017 (holding that Arkansas statutory residence restriction does not violate constitutional substantive due-process principles, does not violate a constitutional right to travel, and is not an unconstitutional ex post facto law); Doe, 405 F.3d at 708, 709-23 (holding that Iowa's statutory residence restriction is not unconstitutionally vague, does not violate substantive due process, does not violate the right against self-incrimination, and is not an ex post facto law); Graham, 2006 WL 2645130, at *4-*10 (concluding, in the context of a motion for a preliminary injunction, that Oklahoma's statutory residence restriction did not violate the constitutional prohibition against double jeopardy, substantive due-process principles, or the Privileges and Immunities Clause of the Fourteenth Amendment); Coston v. Petro, 398 F. Supp. 2d 878, 880, 887 (S.D. Ohio 2005) (noting sex offender's arguments that an Ohio statutory residence restriction that prohibits a sex offender from residing within 1,000 feet of a school premises infringes on the fundamental right of privacy in family matters and the fundamental right of intrastate travel and violates the constitutional right against impairment of contracts, the right against self-incrimination, the Ex Post Facto Clause, and the Takings Clause of the Fifth Amendment); Seering, 701 N.W.2d at 665, 666-69, 670 (holding that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment); Leroy, 828 N.E.2d at 776-77, 778-84 (holding that Illinois statutory residence restrictions do not violate substantive due-process principles, constitute an ex post facto law, violate the prohibition against self-incrimination, or constitute cruel and unusual punishment); Denson v. Georgia, 600 S.E.2d 645, 646-47 (Ga. Ct. App. 2004) (concluding that Georgia's statutory residence restriction, which prohibits a sex offender from residing within 1,000 feet of a day-care facility, is not an ex post facto law because the sex offender can be punished only if he "prospectively chooses to violate the law by continuing to reside" within the prohibited zone).
Home | Opinions
March 6, 2007
The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068 Opinion No. GA-0526
Re: Whether a municipality may prohibit registered sex offenders from living in certain locations within the municipality (RQ-0526-GA)
Dear Senator Nelson:
You state that municipalities "across the state either have passed or are considering passing municipal ordinances that prohibit registered sex offenders from living within a specified distance from locations where children typically congregate, including day-care facilities, schools, public swimming pools, and parks and playgrounds." (1) You ask whether a municipality may adopt such ordinances. See Request Letter, supra note 1, at 1. You particularly ask us to address two issues:
(1) whether Chapter 508, Government Code, Article 42.12, Code of Criminal Procedure, or Chapter 62, Code of Criminal Procedure, preempts or otherwise limits a municipality's authority in this regard and (2) whether Section 3 or 19, Article I, Texas Constitution, or any other provision of the Texas Constitution limits a municipality's authority in this regard.
Id. at 2.
We note preliminarily that no particular adopted or proposed ordinance is at issue. Thus, our answer is general and does not speak to the preemption or constitutionality of a specific ordinance.
In addition, we note that you do not specify whether your question concerns general-law or home-rule municipalities. See id. at 1-2. A general-law municipality is a political subdivision "created by the State and, as such, possess[es] those powers and privileges that the State expressly confers upon [it]." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). We have found no law authorizing a general-law municipality to adopt this type of residence restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live.
On the other hand, a home-rule municipality "do[es] not depend on the legislature for specific grants of authority but, instead, ha[s] a constitutional right of self-government and look[s] to the legislature only for specific limitations on [its] power." City of Laredo v. Webb County, No. 03-05-00168-CV, 2005 WL 3234768, at *3 (Tex. App.--Austin Dec. 1, 2005, no pet.); see Tex. Const. art. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). We thus consider whether the Legislature has specifically limited a home-rule municipality's authority to adopt ordinances like those you generally describe.
I. Whether Residence Restrictions Adopted by Home-Rule Municipalities are Preempted by Government Code Chapter 508, Code of Criminal Procedure Article 42.12, or Code of Criminal Procedure Chapter 62
Despite its broad authority, a home-rule municipality may not adopt an ordinance that is "inconsistent with the Constitution of the State, or [with] the general laws enacted by the Legislature of this State." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5); see City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660, 663 (Tex. App.--Corpus Christi 2003, pet. denied). Consequently, a municipal ordinance "that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491. Nevertheless, "the mere fact that the legislature has enacted a law addressing a subject does not mean [that the] subject matter is completely preempted." Id. (quoting City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990)). A court will not hold a general law and a municipal ordinance "repugnant to each other if any other reasonable construction leaving both in effect can be reached." Id. (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). And if the Legislature chooses to preempt a subject matter usually encompassed within a home-rule municipality's broad powers, "it must do so with unmistakable clarity." Id.
You suggest that Government Code section 508.187, Code of Criminal Procedure article 42.12, or Code of Criminal Procedure chapter 62 may preempt the home-rule municipalities' ordinances. See Request Letter, supra note 1, at 2. We will discuss chapter 62 of the Code of Criminal Procedure first.
Chapter 62 establishes a sex-offender-registration program under which persons with a "reportable conviction or adjudication" or who are "required to register as a condition of parole, release to mandatory supervision, or community supervision" must register "with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." Tex. Code Crim. Proc. Ann. art. 62.051(a) (Vernon Supp. 2006); see also id. art. 62.001(1) (defining "Department"); id. art. 62.004 (requiring the Department of Public Safety to determine "which local law enforcement authority serves as [a] person's primary registration authority"). The phrase "reportable conviction or adjudication" is defined to include various sex offenses, such as indecency with a child, possessing or promoting child pornography, burglary with intent to commit a sex offense, and aggravated kidnapping with intent to sexually abuse a person younger than 17 years old. Id. art. 62.001(5). Compare Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386-87 (defining "reportable conviction or adjudication"), with Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4050-51 (same). Depending on the precise sex offense the person committed, a person's duty to register as a sex offender expires when the person dies or on the tenth anniversary of the date on which (1) the person was released from a penal institution or discharged from community supervision, or (2) the court dismissed the criminal proceedings against the person. Tex. Code Crim. Proc. Ann. art. 62.101 (Vernon Supp. 2006). Failing to register as required is a criminal offense. See id. art. 62.102.
The statutory duty to register as a sex offender does not conflict with a municipal ordinance limiting the area in which a sex offender must live. Accordingly, chapter 62 does not preempt the municipal ordinances.
Article 42.12, section 13B of the Code of Criminal Procedure and section 508.187 of the Government Code (the "child-safety-zone statutes") both provide in similar terms for the establishment of a child-safety zone that certain sex offenders may not enter. Code of Criminal Procedure article 42.12, section 13B pertains to defendants placed on community supervision, while Government Code section 508.187 pertains to convicted defendants who have served a sentence for a sex offense and are placed on parole. See id. art. 42.12, § 13B(a); Tex. Gov't Code Ann. § 508.187(a)-(b) (Vernon 2004). Under both statutes, a defendant or convicted defendant who, as a condition of community supervision or parole, must adhere to child-safety-zone provisions may not:
(A) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(B) go in, on, or within [1,000 feet, under article 42.12, section 13B or a distance specified by the panel under Government Code section 508.187(b)(1)(B)] of premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
Tex. Gov't Code Ann. § 508.187(b)(1) (Vernon 2004); cf. Tex. Code Crim. Proc. Ann. art. 42.12, § 13B(a)(1) (Vernon Supp. 2006). Subsection (B) of the child-safety-zone statutes is particularly relevant to our preemption inquiry.
The child-safety-zone statutes are not inconsistent with home-rule municipality residence restrictions as you have described them. See Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5). A sex offender may comply with both the child-safety-zone statutes and a home-rule municipality's residence restrictions by staying out of the areas described in both. In this way, the state statutes and the municipal ordinances are not repugnant; instead, they are complementary. See id. at 491 (quoting City of Beaumont, 291 S.W. at 206).
Moreover, nothing in either of the child-safety-zone statutes evidences an unmistakably clear legislative intent to preempt a home-rule municipality's authority to regulate where sex offenders may live. See id. at 491. Certainly, neither child-safety-zone statute expressly preempts municipal regulation. Cf. Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (Vernon Supp. 2006) (expressly restricting a home-rule municipality's authority to impose stricter standards on premises or businesses required to have a license or permit under the Alcoholic Beverage Code and setting out the Legislature's intent that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state"); Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491-92 (stating that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold"). In addition, nothing in the child-safety-zone statutes' legislative history suggests an intent to preempt municipal regulation. See generally Senate Comm. on Crim. Justice, Bill Analysis 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); House Comm. on Crim. Jurisprudence 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); see House Research Org., Bill Analysis 1, 3, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995).
Because the child-safety-zone statutes and municipal residence restrictions are not inconsistent and because the child-safety-zone statutes do not "with unmistakable clarity" preempt a home-rule municipality's authority to legislate in this area, we conclude that state law does not preempt municipal residence restrictions generally. (2) Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491.
II. Whether Residence Restrictions Adopted by Home-Rule Municipalities Contravene Various Provisions of the Texas Constitution
You also ask whether article I, section 3 or 19, "or any other provision of the Texas Constitution" limits a home-rule municipality's authority to adopt residence restrictions. Request Letter, supra note 1, at 2. Article I, section 3, like its federal counterpart found in the Fourteenth Amendment to the United States Constitution, guarantees "all persons similarly situated . . . equal protection under the laws of this [s]tate and of the United States." Nonn v. State, 117 S.W.3d 874, 881-82 (Tex. Crim. App. 2003); see Tex. Const. art. I, § 3; see also U.S. Const. amend. XIV, § 1. Texas cases apply federal standards "when determining whether a statute violates equal protection under either provision." Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990). Under those standards, when a law creates a classification that "does not infringe upon fundamental rights or does not burden an inherently suspect class, equal protection requires only that the statutory classification . . . rationally relate[] to a legitimate state interest." Id. "In determining whether or not a state law violates the Equal Protection Clause," a court must "consider the facts and circumstances behind the law, the interests [that] the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 (1968). Given that we have no particular municipal ordinance before us here, we cannot perform an equal-protection analysis. Courts that have considered specific state statutory residence restrictions in the context of an equal-protection analysis, however, have held that the residence restrictions do not impinge upon fundamental rights or burden an inherently suspect class and that the residence restrictions rationally relate to the state's legitimate interest in promoting children's safety. The residence restrictions that have been considered thus were found not to violate the Federal Equal Protection Clause. (3)
Article I, section 19 of the Texas Constitution, which prohibits the deprivation "of life, liberty, property, privileges, or immunities" without "due course of the law," is nearly identical to the Federal Due Process Clause, which is found in the Fourteenth Amendment to the United States Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Compare Tex. Const. art. I, § 19, with U.S. Const. amend. XIV, § 1. In matters of procedural due process, Texas courts traditionally follow "contemporary federal due process interpretations of procedural due process issues." Than, 901 S.W.2d at 929. A court's review of a due-process claim requires a two-part analysis: (1) whether the liberty or property interests allegedly involved are entitled to procedural due-process protection; and (2) if so, what process is due. Id. The Texas Supreme Court, quoting the United States Supreme Court, has indicated that the liberty interests protected by procedural due process mirror those protected by the constitutional equal-protection guarantees:
In defining the scope of protected liberty interests under the Fourteenth Amendment, the United States Supreme Court has stated that a liberty interest:
[D]enotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire usefulknowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Id. at 929-30 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)). A property interest to which procedural due process applies is one that is either vested or springs from state law. See Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App.--Austin 1992, writ denied).
Whether, in a particular instance, a sex offender subject to a municipal residence restriction can succeed in a case alleging that the residence restriction violates his or her constitutional right to procedural due process is a question that a court must decide after determining the relevant facts. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). To date no sex offender has successfully persuaded a court that a residence restriction violated the offender's procedural due process rights. See, e.g., Doe, 405 F.3d at 709 (concluding that the absence of an individualized hearing to determine a sex offender's dangerousness "does not offend principles of procedural due process"); State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005) (finding that the plaintiff "has not even explained how the [Iowa] residency restriction statute" violates "a private interest in freedom of choice in residence").
Finally, you ask if any other provision of the Texas Constitution limits a home-rule municipality's authority to impose residence restrictions. See Request Letter, supra note 1, at 2. We know of no Texas case considering challenges to residence restrictions on state constitutional grounds. We note, however, that sex offenders in other states have raised numerous federal constitutional provisions, but none have successfully argued that a residence restriction was unconstitutional. (4) Given the fact-intensive nature of any constitutional analysis of a specific home-rule municipality's ordinance, we will not consider the possible claims generally here.
S U M M A R Y
State law does not preempt a home-rule municipality's ordinance prohibiting registered sex offenders from living within a specified distance from locations where children typically congregate. Whether a particular ordinance is permitted by the Texas Constitution is a question that must be determined by a court after considering all of the relevant facts applicable to a specific ordinance; to date, however, no court has found that a statutory residence restriction violates any federal constitutional provision.
Very truly yours,
Abbott signature
GREG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
Footnotes
1. Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 29, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2. Several bills already have been filed for the Eightieth Legislative Session that prescribe state-wide residence restrictions for sex offenders. See, e.g., Tex. S.B. 94, 80th Leg., R.S. (2007); Tex. S.B. 88, 80th Leg., R.S. (2007); Tex. H.B. 203, 80th Leg., R.S. (2007); Tex. H.B. 62, 80th Leg., R.S. (2007). We do not consider in this opinion whether any of these bills, if adopted, will preempt municipal residence restrictions.
3. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013, 1016 (8th Cir. 2006) (considering the constitutionality of an Arkansas law prohibiting certain high-risk sex offenders from residing within 2,000 feet of the property on which a public or private elementary or secondary school or daycare facility is located); Doe v. Miller, 405 F.3d 700, 704, 711-14 (8th Cir.) (considering the constitutionality of an Iowa statute that prohibits a person convicted of certain sex offenses from residing within 2,000 feet of a school or registered child-care facility), cert. denied, 126 S. Ct. 757 (2005); Graham v. Henry, No. 06 CV 381 TCK FHM, 2006 WL 2645130, at *1, *8 (N.D. Okla. 2006) (considering the constitutionality of an Oklahoma statute prohibiting certain sex offenders from residing within 2,000 feet of a public or private school, educational institution, playground, park, or licensed child-care facility); People v. Leroy, 828 N.E.2d 769, 775, 778 (Ill. App. Ct. 2005) (considering the constitutionality of an Illinois statute prohibiting certain sex offenders from knowingly residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age).
4. See, e.g., Weems, 453 F.3d at 1015, 1017 (holding that Arkansas statutory residence restriction does not violate constitutional substantive due-process principles, does not violate a constitutional right to travel, and is not an unconstitutional ex post facto law); Doe, 405 F.3d at 708, 709-23 (holding that Iowa's statutory residence restriction is not unconstitutionally vague, does not violate substantive due process, does not violate the right against self-incrimination, and is not an ex post facto law); Graham, 2006 WL 2645130, at *4-*10 (concluding, in the context of a motion for a preliminary injunction, that Oklahoma's statutory residence restriction did not violate the constitutional prohibition against double jeopardy, substantive due-process principles, or the Privileges and Immunities Clause of the Fourteenth Amendment); Coston v. Petro, 398 F. Supp. 2d 878, 880, 887 (S.D. Ohio 2005) (noting sex offender's arguments that an Ohio statutory residence restriction that prohibits a sex offender from residing within 1,000 feet of a school premises infringes on the fundamental right of privacy in family matters and the fundamental right of intrastate travel and violates the constitutional right against impairment of contracts, the right against self-incrimination, the Ex Post Facto Clause, and the Takings Clause of the Fifth Amendment); Seering, 701 N.W.2d at 665, 666-69, 670 (holding that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment); Leroy, 828 N.E.2d at 776-77, 778-84 (holding that Illinois statutory residence restrictions do not violate substantive due-process principles, constitute an ex post facto law, violate the prohibition against self-incrimination, or constitute cruel and unusual punishment); Denson v. Georgia, 600 S.E.2d 645, 646-47 (Ga. Ct. App. 2004) (concluding that Georgia's statutory residence restriction, which prohibits a sex offender from residing within 1,000 feet of a day-care facility, is not an ex post facto law because the sex offender can be punished only if he "prospectively chooses to violate the law by continuing to reside" within the prohibited zone).
Home | Opinions
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall..
Click for home page Office of the Attorney General - State of Texas
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
Home | Opinions
Click for home page Office of the Attorney General - State of Texas
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
Home | Opinions
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
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John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
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