Candy Recipe

NO.
03-13-00820-CV

In the
Third Court of Appeals
of Texas
__________________________________________________________________

City of El Paso, Texas
Appellant

v.

Greg Abbott, Attorney General of Texas and
Intervenor, Stephanie Townsend Allala
Appellee
__________________________________________________________________

On Appeal from the 261
st
Judicial District Court of Travis County, Texas
Trial Court Cause Number D-1-GN-12-001731
__________________________________________________________________

BRIEF OF INTERVENOR APPELLEE
Stephanie Townsend Allala

Bill Aleshire
State Bar No. 24031810
RIGGS ALESHIRE & RAY, P.C.
700 Lavaca St., Suite 920
Austin, Texas 78701
512 457-9806
512 457-9066 Facsimile
Aleshire@R-Alaw.com

ATTORNEY FOR INTERVENOR
APPELLEE, STEPHANIE ALLALA

February 25, 2014
ORAL ARGUMENT REQUESTED
ACCEPTED
03-13-00820-CV
566259
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/25/2014 4:56:57 PM
J EFFREY D. KYLE
CLERK

Intervenor Allalas Appellee Brief

Page | ii
TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES ..................................................................................... iv

STATEMENT OF THE CASE ................................................................................. iv

STATEMENT ON ORAL ARGUMENT ............................................................. viii

ISSUE PRESENTED .............................................................................................. vii

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 4

ARGUMENT ............................................................................................................. 4

STANDARD OF REVIEW ............................................................................. 5

REPLY POINT 1(a) Intervenor is first entitled to targeted discovery
on the mootness issue before the court considers the plea to the
jurisdiction...5

REPLY POINT 1(b) The trial court correctly denied the Citys
plea because the City was required, but failed, to prove as a matter
of law that all of the public information Allala requested had
been disclosed. 10

REPLY POINT 2 Intervenors mandamus action under TPIA
section 552.321 is separate and not mooted by any resolution,
if any, of the Citys claims against the Attorney General under
TPIA section 552.32513

REPLY POINT 3 Intervenor did not bring an action under the
Local Government Records Act (LGRA), but that act is relevant
to the scope of the TPIA...14


Page | iii
CROSS POINT - The existence of a claim by Intervenor Allala
concerning unlawful redaction of personal email addresses of city
officials used in their official communication with each other
precludes dismissal on the city's plea to the jurisdiction. ...21

OBJ ECTION TO APPELLANT'S CLAIM FOR ATTORNEY FEES. .22

PRAYER.23

CERTIFICATE OF COMPLIANCE ....................................................................... 24

CERTIFICATE OF SERVICE ................................................................................ 24

OBJ ECTION TO ATTORNEY FEES ...22

APPENDIX.....26


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INDEX OF AUTHORITIES

TEXAS CASES

Bland Indep. Sch. Distr. v. Blue,
34 S.W.3d 547 (Tex. 2000). ....10

City of Laredo v. Rio Grnade H2O Gardian, No. 04-10-00872-CV,
2011 WL 312205 (Tex. App.-San Antonio J uly 27, 2011). .8

Heckman v. Williamson County,
369 S.W.3d 137 (Tex. 2012). ..10

In re Allied Chemical Corp.,
227 S.W.3d 652 (Tex. 2007). ....7

Mission Consol. Indep. School Dist. V. Garcia,
372 S.W.3d 629 (Tex. 2012). ..11

State v. Lowry,
802 S.W.2d 669 (Tex. 1991). 6

State Dept. of Highways & Pub. Transp. v. Gonzales,
82 S.W.3d 322 (Tex. 2002). ..5

Tex. Dept. of Parks & Wildlife v. Miranda,
S.W.3d 217 (Tex. 2004). .......x, 7, 10, 11

Texas United for Reform and Freedom v. Saenz,
319 S.W.3d 914 (Tex. App. Austin 2010, pet. denied). .....9

The Austin Bulldog v. Lee Leffingwell, et al.,
Cause No. 03-13-00604-CV. ..22

Thomas v. Cornyn,
71 S.W.3d 473 (Tex. 2002). ......x, 13

Walker v. Packer,
827 S.W.2d 833 (Tex. 1992). ...8


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STATUTES

Tex. Loc. Govt Code 201. .xi

Tex. Loc. Govt Code 202. .....xi

Tex. Loc. Govt Code 203. .....xi

Tex. Loc. Govt Code 201.003(2). ..15

Tex. Loc. Govt Code 201.003(8). ..16

Tex. Loc. Govt Code 201.005. .17

Tex. Loc. Govt Code 201.006(a). ..19

Tex. Loc. Govt Code 201.009(a). ...xi, 16

Tex. Loc. Govt Code 202.002. ..17

Tex. Loc. Govt Code 202.005. ...20



Tex. Loc. Govt Code 209.009. ..19

Tex. Govt Code 552.002(a)(2). ....12

Tex. Govt Code 552.137. ...xi, 4, 21

Tex. Govt Code 552.321. ......x, 4, 13, 21, 22

Tex. Govt Code 552.323. ..22

Tex. Govt Code 552.323(a). ..23

Tex. Govt Code 552.323(b) ..22


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Tex. Govt Code 552.325. ....4, 13, 22


Page | vii
STATEMENT OF THE CASE
Because of errors in Appellants Statement of the Case, Appellee provides
this clarification of the record.
1. Contrary to Appellants statement at Page 2 of its brief, the City has
not complied with the decision of the Attorney General.... When it requested the
ruling by the Attorney General, the City resisted disclosure of two sets of records,
(a) some specific records for which they claimed trade secret protection and (b)
records of official business maintained on personal email accounts of City officials
not in the possession of the City. As it is doing in this appeal, in seeking a ruling
from the Attorney General, the City argued that the Texas Public Information Act
(TPIA)
1
does not require disclosure of correspondence about City business if it
was held privately by City Council representatives in their personal email
accounts. But the Attorney General said:
A governmental body may not circumvent the applicability of the Act
by conducting official business in a private medium. [citations
omitted] Thus, to the extent the e-mails originally located in personal
e-mail accounts related to the official business of the city, they were
subject to the Act at the time of the first request. CR 342 (Tex. Atty
Gen. OR2012-19216 at 3 (2012)).

1
Tex. Govt Code Ch. 552.


Page | viii
Not only did the City not comply with this part of the Attorney General ruling, the
City resisted discovery sought by Appellee directly from the witnesses who created
or received the official correspondence so a determination can be made of what, if
any, public information still has not been disclosed. The City sought its Plea to the
J urisdiction, claiming mootness, precisely for the purpose of preventing Intervenor
from conducting discovery on this core issue.
2. It is not true that the City ... submitted indisputable evidence after
two hearings proving the Citys compliance with the AGs decision. Appellants
Brief at 2. The evidence the City submitted was not indisputable and it was, in
fact, disputed, as is shown below.
3. The wording in the Citys Brief about the Attorney Generals position
regarding the Citys Plea may be misleading: The AG did not oppose the
dismissal of the entire suit in both hearings. Appellants Brief at 2. The Attorney
General did not take a position one way or the other on the Citys Plea or
Intervenors Motion to Compel. III R.R at 37 (Statement by Assistant Attorney
General Matthew Entsminger: The Attorney General is not taking a position on
any motions before the Court today.).


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STATEMENT ON ORAL ARGUMENT
Appellee requests oral argument and agrees with Appellant that oral
argument may be of assistance to the Court.
ISSUE PRESENTED - REPLY POINTS
1. Reply to Appellants Mootness Claim:
a. Under these circumstances, the trial court would have erred in
deciding the jurisdictional issue of mootness without affording the
Intervenor/Appellee (records requestor Allala) an opportunity to conduct targeted
discovery on whether the records had been disclosed by the City subsequent to
their refusal to do so. Where, as here, the central issue in a lawsuit is whether a
governmental body has fully complied with disclosure of records required by the
TPIA, the requestor is entitled to conduct at least targeted discovery on that central
issue of mootness, prior to the court deciding to dismiss the case on a plea to the
jurisdiction.
b. Even if it were decided that the requestor was not entitled to conduct
targeted discovery before the issue of mootness was decided, the record shows
issues of a disputed material factabout whether the requested public information
in possession of City officials had been disclosedthat would preclude dismissal
via a plea to the jurisdiction. If the facts are disputed, the court cannot grant the


Page | x
plea to the jurisdiction. See Tex. Dept. of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 227-28 (Tex. 2004). To obtain dismissal via a Plea to the J urisdiction
based on fact issues, the burden is on the City, similar to the traditional summary
judgment proof standard, to show as a matter of law that the requested public
information had been disclosed. Id. at 228.
2. Reply to Appellants argument on Intervenors Mandamus action:
The trial court did not lose jurisdiction over Intervenor Allalas TPIA section
552.321 mandamus claims regardless of the status of the Citys section 552.325
claims against the Attorney General. This issue was decided by the Texas
Supreme Court in Thomas v. Cornyn in 2002 (If a requestor intervenes [pursuant
to section 552.325], as here, then the claims at trial may include the requestors
mandamus action [pursuant to section 552.321] seeking the release of the
information.). Thomas, 71 S.W.3d 473, 482 (Tex. 2002). Thus, a
requestor/intervenor may litigate (and seek discovery on) the issue pursuant to
section 552.321 of whether the governmental body ... refuses to supply public
information or information that the attorney general has determined is public
information that is not excepted from disclosure...
3. Reply to Appellants Argument on the Local Government Records Act
(LGRA):
Contrary to the implication of Appellants Brief at page 20, Appellee did not


Page | xi
bring suit under the LGRA, but instead argues that a local government record as
defined by the LGRA constitutes public information subject to disclosure under
the TPIA. Local government records are subject to disclosure under the TPIA.
See Tex. Loc. Govt Code section 201.009(a). The Local Government Records
Act (LGRA)
2
is also relevant to a lawsuit under the TPIA because the TPIA
defines public information to in such a way that it includes local government
records, i.e., records in connection with the transaction of official business that
the governmental body owns or has a right of access to it. Even records of official
business, created by a government official using a personal email account, are
owned by the government and are subject to disclosure under the TPIA.
4. CROSS-POINT - Additional Grounds on Which the Trial Court Retained
J urisdiction:
Appellants Brief ignores the existence of another live undecided issue in the
case that would preclude dismissal via a plea to the jurisdictionthe issue of
whether the email addresses of City officials could be redacted as being email
addresses of members of the public pursuant to TPIA section 552.137. The trial
court clearly had jurisdiction to interpret section 552.137 as it would apply to the
undisputed fact that the emails the City disclosed redacted the email addresses of
the City officials communicating with each other.

2
Tex. Loc. Govt Code chs 201, 202, and 203.

Page | 1
STATEMENT OF FACTS
Appellee provides this Statement of Facts to supplement and correct errors
in Appellants Statement of Facts.
At page 5 of its brief, the City omitted reference to the Courts ruling
(September 30, 2013) sustaining Allalas objections to the Citys evidence (the
J oyce Wilson affidavit at CR 236-37) regarding mootness. And the Citys brief
omits the Courts first decision regarding the Citys plea to the jurisdiction.
Contrary to the Citys brief, Allala did file written objections and evidence to the
plea evidence the City included in its plea to the jurisdiction, demonstrating that
the City had not met its burden of proof (as a matter of law). CR 247-48.
In this September hearing on the Citys first plea to the jurisdiction, the trial
court said:
THE COURT: All right. For our purposes here, what I would like to
do is, let me just go ahead and rule on what I am going to do with the
plea to the jurisdiction. First of all, I'll grant -- I'll sustain the
objection to that portion of the affidavit of J oyce Wilson and that it's
conclusory. The Court finds that it is conclusory. And that is the last
sentence on paragraph 1, 2, 3, 4. It says, the City of El Paso has
conducted a diligent search for information but does not have any


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additional responsive documents which have not been published or
disclosed without stating the basis, the factual basis for that statement.
The Court is going to not rule on the plea to the jurisdiction. I am not
going to grant it or deny it. I'm holding the ruling on the plea to the
jurisdiction to allow some limited discovery, and then provide,
perhaps, proposed discovery presentation of the jurisdictional issue.
II RR at 50-51.
Before the depositions of the City officials could be obtained, however, the
City filed a Supplemental Plea to the J urisdiction to try again to meet the Citys
burden of proof regarding mootness. CR 334-357. In response to the Citys
supplemental plea and evidence, Allala objected in writing to affidavits alleging
merely that the City had produced records for which the City had custody or
control because that standard is more narrow than the TPIA definition of public
information subject to disclosure, which includes information that the City owns
or has a right of access to. CR 361-62. At the hearing on November 25, 2013,
counsel for Allala also argued to the Court that affidavits by City officials (who are
not the actual authors or custodians (the City Manager and Council members) who
maintained the official correspondence in personal email accounts) did not prove,
as a matter of law, that all such requested correspondenceeven if it was still
retained privately by the City officialshad been disclosed as required by the


Page | 3
TPIA. III RR at 34:22-25 35:1-14; 36:4-19. The Court could have reasonably
concluded that the affidavits attached to the Citys Supplement Plea were not based
on personal knowledgetherefore, did not prove as a matter of lawwhat records
were retained in the personal email accounts of the City officials.
At the November 2013 hearing, former Council representative Steve Ortega,
who had publicly refused to turn over his official-City-business emails he held in
his personal email account, provided the Court, for in camera review, emails he
claimed were responsive to the Allala records request. III RR 59. Upon receiving
the Ortega records, after the hearing, Allala filed a Reply noting, ironically, that
one of the emails Ortega revealed was an email from City Manager J oyce Wilson
which had never before been disclosed. CR 414-15; CR 421. This was evidence
that the City Manager had relevant emails from her personal email address about
city business (within the scope of the Allala request) that she had not been turned
over to the City, let alone disclosed in response to Allalas records requests. In
other words, as argued in Allalas Reply, the Ortega evidence filed at that hearing
brought doubt to the correctness of the Citys plea-to-the-jurisdiction evidence and
raised a fact question of whether the City had disclosed all of the requested public
information, or only the information they had obtained, even from their own City
Manager. CR 416-17 (Allalas argument on a genuine issue of material fact).


Page | 4
Although Allala asked the Court to postpone a decision on the Citys
supplemental plea to the jurisdiction until Allala could conduct targeted discovery
regarding the mootness issue, the Court denied the Citys plea (as it pertains to
Allala) instead. CR 418; CR 412.
SUMMARY OF THE ARGUMENT
The trial court correctly denied the Citys plea to the jurisdiction. It would
have been error had the trial court granted the Citys plea based on the fact
questions related to mootness without first permitting Intervenor Allala and
opportunity to conduct discovery on that issue. Likewise, in the face of disputed
facts as to whether the City officials had disclosed all of the requested emails, it
would have been error had the trial court granted the Citys plea.
The trial court retained jurisdiction over Allalas TPIA section 552.321
mandamus claim for disclosure of public information, separate and apart from
Allala having intervened in the Citys lawsuit against the Attorney General under
section 552.325. Although it was ignored in Appellants brief, the trial court also
retained jurisdiction over Allalas claim that some of the information the City
withheld was the redacted personal email addresses of City officials
communicating with each other about City business. Allala contended that those
email addresses are not confidential under TPIA section 552.137 as email
addresses of members of the public communicating with a governmental body.


Page | 5
The trial court did not hear or decide that issue.
INTERVENOR APPELLEES ARGUMENT
STANDARD OF REVIEW
Because this appeal is based on a challenge to the trial courts subject-matter
jurisdiction, which is a question of law, this Court reviews the trial courts ruling
de novo. State Dept. of Highways & Pub. Transp. v. Gonzales, 82 S.W.3d 322,
327 (Tex. 2002).
REPLY POINTS
REPLY POINT 1(a) Intervenor is first entitled to targeted discovery
on the mootness issue before the court considers the plea to the
jurisdiction.

Since it was necessary for the trial court to consider evidence of whether the
City had disclosed all of the requested public information to resolve the
jurisdictional question of mootness, the court would have committed error if it did
not first accord the Intervenor/Requestor an opportunity to conduct discovery on
that fact question going to the heart of Intervenors case. Failure to permit such
discovery would have been reversible error subject to mandamus.
A party should be afforded an opportunity to conduct discovery in a lawsuit
such as this:
Affording parties fully discovery promotes fair resolution of disputes
by the judiciary. This court has vigorously sought to ensure that


Page | 6
lawsuits are decided by what the facts reveal, not by what facts are
concealed. Discovery is thus the linchpin of the search for the truth,
as it makes a trial less of a game of blind mans bluff and more a fair
contest with the issues and facts disclosed to the fullest practicable
extent.
State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (citations omitted). The City
asked the trial court to dismiss Allalas claims without permitting Allala the
search for the truth that our discovery rules anticipate. As the Texas Supreme
Court said in Lowry:
Only in certain narrow circumstances is it appropriate to obstruct the
search for truth by delaying discovery. Very limited exceptions to the
strongly preferred policy of openness are recognized in our state
procedural rules and statues. The burden is on the party seeking to
avoid discovery to plead the basis for exemption of immunity and to
produce evidence supporting that claim. Id.
The City gave no valid reason to prohibit Allala from conducting this
targeted discovery before deciding the question of mootness based on evidence. If
the trial court had granted the Citys plea and Allala had sought mandamus over
the courts discovery decision, the court of appeals would have determined
whether the trial court abused its discretion and whether the appellant has an


Page | 7
adequate remedy by appeal. The Texas Supreme Court has explained:
...[W]e have granted mandamus when a denial of discovery goes to
the heart of a partys case....
...[W]e have granted mandamus when a discovery order severely
compromises a partys ability to present any case at all at trial.
In re Allied Chemical Corp., 227 S.W.3d 652, 658 (Tex. 2007).
That is exactly the error that the City of El Paso asked the trial court to
make: (1) deny Allala discovery that seeks to determine if all of requested public
information has been disclosed, and (2) deny Allala discovery that severely
compromises Allalas ability to present any case at the hearing on the Citys plea,
potentially dismissing the lawsuit.
In circumstances such as this, the determination of the plea may also
require consideration of extrinsic facts after reasonable opportunity for targeted
discovery. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d at 233. It
should also be noted that in Miranda, the Plaintiff had conducted depositions
before the state Department filed is plea to the jurisdiction. As the Supreme Court
has noted:
When the consideration of a trial courts subject matter jurisdiction
requires the examination of evidence, the trial court exercises its
discretion in deciding whether the jurisdictional determination should


Page | 8
be made at a preliminary hearing or await a fuller development of the
case, mindful that this determination must be made as soon as
practicable. Id. at 227.
As the Court said in Walker v. Packer, Remedy by appeal in a discovery
mandamus is not adequate where a part is required to try his lawsuit, debilitated
by the denial of proper discovery, only to have that lawsuit rendered a certain
nullity on appeal..... Walker v. Packer, 827 S.W.2d 833, 841 (Tex. 1992).
Without being permitted the requested depositions before disposition of the Citys
plea, Allala could not have been expected to prove the heart of her casethat the
City has not disclosed the requested information. Considering that the depositions
of these key witnesses would have sought evidence that goes to the merits of
Allalas claim that the City failed to provide the requested records, it would be an
abuse of discretion and reversible error to deny Allala that discovery on the very
issue that the Citys plea is based on: whether the public information has been
disclosed.
Allala correctly asked the trial court that she be allowed to conduct
discovery while the Plea was pending. This request is similar to the following
case. In City of Laredo v. Rio Grande H2O Guardian,
3
the plaintiff requested

3
No. 04-10-00872-CV, 2011 WL 312205 at *1 (Tex. App.San Antonio J uly 27,
2011).


Page | 9
public information from the City of Laredo, and the City staff consulted with the
appropriate departments and council chambers regarding the requests, and then
responded to each one with either responsive information or with a declaration that
no such records existed. Id. The City claimed it had produced all of the
information in its possession. Rio Grande [the plaintiff] disagreed and filed a
petition for writ of mandamus in the trial court to compel the City to produce the
public records Rio Grande claimed were not released in response to its previous
requests for information. Id. at *10. The City complained on appeal that the trial
court should not have granted the plaintiffs petition for mandamus. The Court of
Appeals noted with approval that the trial court neither granted nor denied Rio
Grandes petition:
Rather, the trial court noted the issues raised by Rio Grande with
regard to the Public Information Act were not moot, and Rio Grande
would be given an opportunity to depose members of the Laredo City
Council and to conduct further discovery.... [T]he trial court
seemingly passed on the matter, deciding to allow the information to
be gathered through traditional discovery devices, advising Rio
Grande that it would be permitted to file motions to compel in the
event information was not forthcoming.
Id. at *10. (emphasis added); see also, Texas United for Reform and Freedom v.


Page | 10
Saenz, 319 S.W.3d 914, 918 (Tex. App.Austin 2010, pet. denied) (approving
trial courts action of continuing a hearing on TxDOTs plea to the jurisdiction for
90 days during which the parties conducted discovery including depositions.).
The trial court was correct in denying the Citys plea to the jurisdiction if for
no other reason than that Allaya had not been afforded an opportunity to conduct
discovery over the core mootness issue of whether the City had complied with the
TPIA.
REPLY POINT 1(b) The trial court correctly denied the Citys plea
because the City was required, but failed, to prove as a matter of law
that all of the public information Allala requested had been disclosed.

The Texas Supreme Court has made it clear that when, as here, the court
must consider evidence to determine a plea to the jurisdiction, the burden in on the
movant of the plea, similar to the burden in summary judgment.
There is no dispute regarding whether Allalas pleadings, based on the
TPIA, demonstrate the trial courts jurisdiction. Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (noting that in assessing a plea to the
jurisdiction the court begins with the live pleadings). The Texas Supreme Court
has made it clear that the Court must consider evidence when it necessary to
resolve the jurisdictional question, e.g. in this case, the question of whether all of
the requested public information had been disclosed. Heckman v. Williamson
County, 369 S.W.3d 137, 150 (Tex. 2012) (citing Bland Indep. Sch. Distr. V. Blue,


Page | 11
34 S.W.3d 547, 555 (Tex. 2000).
... [A] trial courts review of a plea to the jurisdiction mirrors that of a
traditional summary judgment motion. Initially, the [movant of the
plea] carries the burden to meet the summary judgment proof standard
for its assertion that the trial court lacks jurisdiction. If it does, the
[non-movant of the plea] is then required to show that a disputed
material fact exists regarding the jurisdictional issue. If a fact issue
exists, the trial court should deny the plea.
Mission Consol. Indep. School Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
On review by the appellate court, this Court reviews the matter under a de novo
standard and take as true all evidence favorable to the nonmovant (Allala).
Miranda, 133 S.W.3d at 228. And the Court must also indulge every reasonable
inference and resolve any doubts in favor of the nonmovant. Id.
As Allala showed the trial courtand the court agreedthe City did not
meet its initial burden to show, as a matter of law, that the City had fully complied
with the TPIA. The emails at issue were created and retained on the personal
email accounts of the City Manager, Mayor, and City Council Representatives who
were the custodians of these public records. Only these individuals had the
requisite personal knowledge to provide admissible affidavits about whether the
city correspondence on their personal email accounts had been disclosed. The City


Page | 12
Manager was the only one of these officials who gave an affidavit, and the trial
court granted Allalas objection that that affidavit was conclusory. CR 247-48; II
RR at 50-51.
The rest of the Citys plea evidence consisted of affidavits from city
employees who claimed only that the City had disclosed the information,
eventually, within the custody and control of the City, dodging the issue of
whether all of the public information (as that term is defined in section
552.002(a)(2)), which includes information owned by the City or that the City has
a right of access to had been disclosed.
This deficiency in the City meeting its burden of proof under these
circumstances was pointed out by Allala to the court, in writing and in argument.
CR 361-62; III RR at 34:22-25 35:1-14; 36:4-19. Allala also pointed out
evidence submitted by former Representative Ortega demonstrated that the City
Manager had not disclosed all of the relevant emails from her personal email
account. CR 414-15; CR 421.
The trial court had plenty of reason to hold that the City had failed to meet is
burden of proof for a plea to the jurisdiction and to deny the Citys plea.


Page | 13
REPLY POINT 2 Intervenors mandamus action under TPIA
section 552.321 is separate and not mooted by any resolution, if any,
of the Citys claims against the Attorney General under TPIA section
552.325.

In its brief at page 18, the City argues that court lacked jurisdiction to hear
Intervenor Allalas mandamus action under TPIA section 552.321 because the City
supplied public information to the satisfaction of the Attorney General.... The
Citys brief does not contain any record evidence that the Attorney General was
satisfied with what information the City disclosed in response to Allalas public
information request. But nevertheless, whether the Attorney General was satisfied
is not relevant to whether Allala had a right to pursue her section 552.321
mandamus action regardless of the status of the Citys suit against the Attorney
General under TPIA section 552.325.
This issue was decided by the Texas Supreme Court in Thomas v. Cornyn in
2002:
If the requestor does not intervene, the governing body will bring a
declaratory judgment or mandamus action seeking to withhold
information. If a requestor intervenes, as here, then the claims at trial
may include the requestor's mandamus action seeking the release of
the information. [citations omitted]. While the remedy differs, the
issue is the same in both causes of action: whether the information has


Page | 14
been shown to be excepted from disclosure.
Thomas, 71 S.W.3d 473, 482 (Tex. 2002). Thus, the court retained jurisdiction
over Allalas mandamus action pursuant to section 552.321 of whether the
governmental body ... refuses to supply public information or information that the
attorney general has determined is public information that is not excepted from
disclosure...

REPLY POINT 3 Intervenor did not bring an action under the Local
Government Records Act (LGRA), but that act is relevant to the scope
of the TPIA.

In response to the Citys argument that records in the hands of the City
officials are not subject to the TPIA, Allala argued that, because those records are
local government records, they belong to the City and are included as public
information subject to disclosure under the TPIA. If the City refused to obtain
these local government records, the court could order the City to do soas a
mandamus under the TPIA for the City to disclose information that the City owns
or has a right of access to.
Allalas argument concerning the Local Government Records Act was not
that she had a right to bring a claim for mandamus under the LGRA but that the
LGRA was relevant to her claim for mandamus under the TPIA because the
records she soughteven if created or received by these City officials on their


Page | 15
personal email accounts in the transaction of official City businessare public
information as defined by the TPIA.
Chapter 201 of the Local Government Code, the Local Government
Records Act pertains directly to the records at issue in this lawsuit.
a. The witnesses are custodians of the records of their individual
offices.
Custodian means the appointed or elected public officer who by the state
constitution, state law, ordinance, or administrative policy is in charge of an office
that creates or receives local government records. Tex. Loc. Govt Code
201.003(2) (Vernons 2008).
b. The correspondence sought in the open records requests [emails
between Council Members or City Manager about official business or with the
Baseball stadium promoters] is a local government record.
(8) Local government record means any document, paper, letter, book, map,
photograph, sound or video recording, microfilm, magnetic tape, electronic
medium, or other information recording medium, regardless of physical form or
characteristic and regardless of whether public access to it is open or restricted
under the laws of the state, created or received by a local government or any of its
officers or employees pursuant to law, including an ordinance, or in the transaction


Page | 16
of public business....
4

Tex. Loc. Govt Code 201.003(8) (emphasis added).
c. Local Government Records are public information and the
custodian of the record must protect the record.
Sec. 201.009 (a) Local government records are subject to Chapter 552,
Government Code [the TPIA].
Tex. Loc. Govt Code 201.009(a) (Vernons 2012).
Sec. 202.002. LITIGATION AND OPEN RECORDS REQUESTS. (a)
Regardless of any other provision of this subtitle or rules adopted under it, a local
government record the subject matter of which is known by the custodian to be in
litigation may not be destroyed until the litigation is settled.
(b) Regardless of any other provision of this subtitle or rules adopted under it, a

4
That section goes on to say: The term does not include:
(A) extra identical copies of documents created only for convenience of reference or research by
officers or employees of the local government;
(B) notes, journals, diaries, and similar documents created by an officer or employee of the local
government for the officer's or employee's personal convenience;
(C) blank forms;
(D) stocks of publications;
(E) library and museum materials acquired solely for the purposes of reference or display;
(F) copies of documents in any media furnished to members of the public to which they are
entitled under Chapter 552, Government Code, or other state law; or
(G) any records, correspondence, notes, memoranda, or documents, other than a final written
agreement described by Section 2009.054(c), Government Code, associated with a matter
conducted under an alternative dispute resolution procedure in which personnel of a state
department or institution, local government, special district, or other political subdivision of the
state participated as a party, facilitated as an impartial third party, or facilitated as the
administrator of a dispute resolution system or organization.


Page | 17
local government record subject to a request under Chapter 552, Government
Code, may not be destroyed until the request is resolved.
Tex. Loc. Govt Code 202.002 (Vernons 2008).
d. The requested local government records do not belong to the
witnesses; these records belong to the City of El Paso.
Sec. 201.005. DECLARATION OF RECORDS AS PUBLIC PROPERTY;
ACCESS. (a) Local government records created or received in the transaction of
official business or the creation or maintenance of which were paid for by public
funds are declared to be public property and are subject to the provisions of this
subtitle and Subchapter J , Chapter 441, Government Code. (emphasis added)
(b) A local government officer or employee does not have, by virtue of the
officer's or employee's position, any personal or property right to a local
government record even though the officer or employee developed or compiled it.
Tex. Loc. Govt Code 201.005 (Vernons 2008) (emphasis added).
e. These witnesses/custodians of these emails they created or
received about official City business have statutory duties to protect the
records and turn the records over to their successors in office.
Sec. 203.022. DUTIES AND RESPONSIBILITIES OF CUSTODIANS. (a)
Custodians of records in each local government shall:


Page | 18
(1) cooperate with the records management officer in carrying out the
policies and procedures established by the local government for the efficient and
economical management of records and in carrying out the requirements of this
subtitle;
(2) adequately document the transaction of government business and the
services, programs, and duties for which the custodian and the custodian's staff
are responsible; and
(3) maintain the records in the custodian's care and carry out their
preservation, microfilming, destruction, or other disposition only in accordance
with the policies and procedures of the local government's records management
program and the requirements of this subtitle and rules adopted under it.
(b) State law relating to the duties, other responsibilities, or recordkeeping
requirements of a custodian of local government records do not exempt the
custodian or the records in the custodian's care from the application of this subtitle
and rules adopted under it and may not be used by the custodian as a basis for
refusal to participate in the records management program of the local government
whose establishment is required by this chapter.
5

Tex. Loc. Govt Code 203.022 (Vernons 2008) (emphasis added).

5
It should be noted that correspondence about operations of government must be
retained for 2 years and correspondence about new programs or policies must be retained for 4


Page | 19
Sec. 201.006. RECORDS TO BE DELIVERED TO SUCCESSOR IN OFFICE.
(a) A custodian of local government records shall, at the expiration of the
custodian's term of office, appointment, or employment, deliver to the custodian's
successor, if there is one, all local government records in custody. If there is no
successor, the governing body shall determine which officer of the local
government shall have custody.
Tex. Loc. Govt Code 201.006(a) (Vernons 2008) (emphasis added).
f. A city official risks conviction of a Class A misdemeanor if they
destroy or alienate these official city records or fail to deliver them to their
successor in office.
Sec. 202.008. PENALTY: DESTRUCTION OR ALIENATION OF RECORD.
An officer or employee of a local government commits an offense if the officer or
employee knowingly or intentionally violates this subtitle or rules adopted under it
by destroying or alienating a local government record in contravention of this
subtitle or by intentionally failing to deliver records to a successor in office as
provided by Section 201.006(a). An offense under this section is a Class A
misdemeanor.
Tex. Loc. Govt Code 202.008 (Vernons 2008); see also 209.009 making it a

years under mandatory State Library & Archives Commission rules applicable to the City of El
Paso.


Page | 20
criminal offense for an individual who knowingly or intentionally acquires or
possesses a local government record.
g. The City Council of El Paso has a responsibility to make sure the
requested local government records are provided to the City for disclosure
under the TPIA.
Sec. 202.005. RIGHT OF RECOVERY. (a) The governing body may demand and
receive from any person any local government record in private possession created
or received by the local government the removal of which was not authorized by
law.
(b) If the person in possession of a local government record refuses to deliver the
record on demand, the governing body may petition the district court of the county
in which the person resides for the return of the record. If the court finds that the
record is a local government record, the court shall order the return of the record.
(c) As part of the petition to the district court or at any time after its filing, the
governing body may petition to have the record seized pending the determination
of the court if the governing body finds the record is in danger of being destroyed,
mutilated, altered, secreted, or removed from the state.
Tex. Loc. Govt Code 202.005 (Vernons 2008).
By reading the LGRA together with the TPIA, the trial court has jurisdiction
pursuant to TPIA section 552.321 to require the City to obtain its local


Page | 21
government recordsif necessary by court action brought by the City against the
custodian of the records who is withholding the recordswhich are subject to
disclosure under the TPIA as public information. Contrary to the Citys appeal
and argument, the TPIA does not have a gaping loophole for governmental bodies
to stand aside and permit its government records be concealed in the private hands
of public officials. Together, the LGRA and TPIA work to make sure public
information is available to the public.

CROSS POINT The existence of a claim by Intervenor Allala
concerning unlawful redaction of personal email addresses of city
officials used in their official communication with each other
precludes dismissal on the Citys plea to the jurisdiction.

When Allala received disclosure of emails from the City in response to her
open records requests, the personal email addresses of the City officials used to
email each other were redacted. Ostensibly, the City claims that these email
addresses are confidential pursuant to TPIA section 552.137, which makes
confidential email addresses of members of the public used to communicate with
a governmental body. Allala contends that within the correct meaning of section
552.137, these City officials, communicating with each other about City business,
are not members of the public who email addresses are confidential under


Page | 22
section 552.137.
6

The Citys plea to the jurisdiction, like its appeal brief, ignored this part of
the case below. The trial court did not address this issue, nor did the court need to,
since the court denied the Citys plea. Clearly, the court has continuing
jurisdiction over Allalas claim for mandamus under section 552.321 to compel
disclosure of the email addresses of the City officials used in the transaction of
City business. This was sufficient grounds for the court to deny the Citys blanket
plea to the jurisdiction.
OBJ ECTION TO APPELLANTS CLAIM FOR ATTORNEY FEES
In its brief at page 21, Appellant asks the court to remand the case to the trial
court to award attorney fees but does not cite the statutory basis for that claim.
Allala objects to Appellants claim for attorney fees to the extent the award of
Appellants attorney fees would be against Allala. The only applicable statute for
award of attorney fees to a governmental body who files suit under the TPIA is
TPIA section 552.323(b) which permits attorney fees to be awarded against the
Attorney General if the governmental body prevails in the lawsuit under TPIA
section 552.325 (which permits suit against the Attorney General, not the
requestor). TPIA section 552.321 permits award of attorney fees only to a

6
The merits of this issue is pending before the Third Court of Appeals in The
Austin Bulldog v. Lee Leffingwell, et al., Cause No. 03-13-00604-CV.


Page | 23
requestor/plaintiff who prevails and does not permit attorney fees to be awarded to
the governmental body against the requestor.
PRAYER
For these reasons, Intervenor/Appellee Stephanie Allala asks this Court to
uphold the trial courts denial of the City of El Pasos plea to the jurisdiction,
award Intervenor/Appellee its appellate costs, and remand the case to the trial court
for a determination of an award of attorney fees pursuant to Tex. Govt Code
section 552.323(a) for Appellees costs associated with this TPIA lawsuit in
district court and for such other relief to which Appellee is justly entitled.
Respectfully submitted,

/s/ Bill Aleshire
Bill Aleshire
RIGGS ALESHIRE & RAY, P.C.
700 Lavaca St., Suite 920
Austin, Texas 78701
512 457-9806
512 457-9066 facsimile
Aleshire@R-Alaw.com
ATTORNEY FOR APPELLEE
STEPHANIE ALLALA


Page | 24
CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with TRAP Rule 9.4 and contains 5,064
words in Times New Roman typeface of 14-point.

/s/ Bill Aleshire
Bill Aleshire

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document was served on the parties,
through counsel of record, via e-file on Feb 25, 2014.

Appellants Counsel
George E. Hyde
Lowell F. Denton
Scott M. Tschirhart
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745-5292
(512) 279-6431
(512) 279-6438 Facsimile
george.hyde@rampage-aus.com
lowell.denton@rampage-sa.com
scott.tschirhart@rampage-aus.com


Page | 25
Appellee Greg Abbot, Attorney General of Texas Counsel
Kimberly L. Fuchs
Office of the Attorney General, Open Records Litigation
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711-2548
(512) 475-4195
(512) 320-0167 Facsimile
kimberly.fuchs@texasattorneygeneral.gov

/s/ Bill Aleshire
Bill Aleshire
Appendix to Intervenor Allalas Appellee Brief

APPENDIX TO INTERVENOR APPELLEES BRIEF

RECORD EXCERPTS:

TAB 1 [II RR 50-51] Trial Courts Ruling on Objection to Wilson Affidavit
and Plea to the J urisdiction.

TAB 2 [CR 361 362 part] Allalas objection to citys custody and control
evidence.

TAB 3 [III RR 34-36] Allala objection to citys custody and control
affidavits.

TAB 4 [ CR 413-23] Allalas evidence of missing records.

STATUTES CENTRAL TO ARGUMENT

TAB 5 Tex. Loc. Govt Code section 201.003; Definitions of Custodian
and Local government record.

TAB 6 Tex. Loc. Govt Code section 201.005; Records as Public Property.

TAB 7 Tex. Loc. Govt Code section 201.009; Records Are Subject to TPIA.

TAB 8 Tex. Loc. Govt Code section 202.005; Right of Recovery of Records.
TAB 1
[II RR 50-51]
Trial Court's Ruling On Objections to
Wilson Affidavit and Plea to the Jurisdiction
Plea to the Jurisdiction
September 30, 2013
o3 - 13 -- a0 82 a-cv
1
1 REPORTER'S RECORD
VOLUME 2 OF 3 VOLUMES
2 TRIAL COURT CAUSE NO. D-I-GV-12-001 73:fILED IN
3rd COURT OF APPEA S
3 CITY OF EL PASO IN THE DISTRICT TEXAS
12/26/201312:21 :03 PM
4 vs. TRAVIS COUNTY, 'IJERFREYD.KYLE
Clerk
5 GREG ABBOTT 261ST JUDICIAL DISTRICT
6
7
8
9
10
11
12
13
14
PLEA TO THE JURISDICTION
SEPTEMBER 30, 2013
15 On the 30th day of September, 2013, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable Orlinda Naranjo,
18 Judge Presiding, held in Austin, Travis County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
September 30, 2013
50
1 He is attempting to import into a totally
2 different comprehensive local government management
3 responsibility that has no waiver of sovereign immunity,
4 the right to go in there through the back door of the
5 TPIA and enforce all of those standards for records
6 retention and records management.
7 There is no cause of action for that. And
8 I want the Court to understand that we think that that
9 does not create jurisdiction at all.
10 THE COURT: All right. For our purposes
11 here, what I would like to do is, let me just go ahead
12 and rule on what I am going to do with the plea to the
13 jurisdiction.
14 First of all, I'll grant -- I'll sustain
15 the objection to that portion of the affidavit of Joyce
16 Wilson and that it's conclusory.
17 The Court finds that it is conclusory.
18 And that is the last sentence on paragraph 1, 2, 3, 4.
19 It says, the City of El Paso has conducted a diligent
20 search for information but does not have any additional
21 responsive documents which have not been published or
22 disclosed without stating the basis, the factual basis
23 for that statement.
24 The Court is going to not rule on the plea
25 to the jurisdiction. I am not going to grant it or deny
1 it.
September 30, 2013
I'm holding the ruling on the plea to the
51
2 jurisdiction to allow some limited discovery, and then
3 provide, perhaps, proposed discovery presentation of the
4 jurisdictional issue.
5 So let's -- so then, now let's go to the
6 motion to quash.
7
8
9 Counsel?
10
MR. DENTON:
THE COURT:
MR. DENTON:
If I may?
And is that in here as well,
It is in my notebook, and I'm
11 assuming it's in his notebook.
12 MR. ALESHIRE: It is.
13
14
THE COURT: Okay.
MR. DENTON: And I will be very brief
15 about this, Judge.
16 THE COURT: Counsel, let's just take a
17 two-minute break, five-minute break, and then we'll come
18 back.
19 (Break taken.)
20
21 Counsel.
THE COURT: All right. You may be seated,
22 All right. Let's go right to the motion
23 to quash. Have you been able to reach any type of
24 agreement on this?
25 MR. DENTON: Counsel has agreed that we
TAB 2
[CR 361-362 part]
Allala's Objection to City's
"Custody and Control" Evidence
CAUSE NO. D-I-GV-12-001731
Flied
13 November 25 P1 :20
Amalia Rodriguez-Mendoza
District Clerk
Travis District
D-1-GV-12-o01731
CITY OF EL PASO, TEXAS
Plaintiff
v.
GREG ABBOTT, ATTORNEY
GENERAL OF TEXAS,
Defendant
v.
STEPHANIE TOWNSEND ALLALA,
Intervenor,
IN THE DISTRICT COURT OF

261 ST JUDICIAL DISTRICT
TRAVIS COUNTY TEXAS
INTERVERNORIPLAINTIFF ALLALA'S RESPONSE AND OBJECTIONS TO
PLAINTIFF EL PASO'S SUPPLEMENTAL PLEA TO THE JURISDICTION
&
STEVE ORTEGA'S MOTION TO QUASH & OBJECTIONS TO SUBPOENA
IntervenorlPlaintiff Allala (Allala) asks the court to postpone acting on El Paso's Plea to
the Jurisdiction until Allala is afforded an opportunity to conduct discover on the core issue of
whether all records requested under the Texas Public Information Act have been disclosed, and
to deny Steve Ortega's motions to stop his deposition on that issue.
PROCEDURAL FACTS
1. The law of this case was established by the Court on the record and in its Order on
September 30, 2013. The Court specifically decided to not rule on El Paso's Plea to the
Jurisdiction and to deny El Paso' Motion to Quash, permitting the depositions of City Manager
Joyce Wilson, City Rep. Niland, and former City Rep. Byrd to go forward. Exhibit 1-1,1-2.
2. El Paso, has filed a "supplemental" plea alleging that they have produced the records the
City raised in its lawsuit for which the City has "custody or control." Allala asserts that "custody
or control" is not the appropriate standard. The TPIA (section 552.002(a)(2)) defines (and the
INTERVENOR ALLALA'S RESPONSE 11-25-13
Page 10f14
361
Attorney General ruled) that records the "governmental body owns or has a right of access to"
and that is correct standard for defining the documents that must be produced. Allala asserts that
because the records at issue (emails about City business held in personal email accounts of City
officials) are "local government records" (Loc. Gov't Code Chs. 201, 202, 203), they are subject
to the TPIA. (Tex. Loc. Gov't Code, Sec. 201.009, "(a) Local government records are subject to
Chapter 552, Government Code [the TPIA].")
3. Prior to the September 30
th
hearing, on September 19, 2013 at 2:45 p.m., Steve Ortega
was served with Notice of Intent by Allala to take Ortega's deposition (like the other City
officials and former officials). Exhibit 1-3. Neither EI Paso or Ortega responded to or objected
to the Notice. So, on October 8, 2013, more than 10 days after the Notice ofIntent was issued,
Ortega was served with the subpoena for his deposition.
4. Ortega has publicly refused to turn over records about City business in retained in
personal possession. Exhibit 1-4. In his Motion to Quash, Ortega has now objected that the
records sought are not subject to the TPIA, but that he will present the court with records he has
previously withheld from disclosure. Allala objects to Ortega's affidavit as being incomplete as
to whether he has, or will, tum over all records responsive to Allala's open records requests of
September 5,2012 and October 5, 2012.
5. Ms. Allala's requests are attached. EXHIBIT 1-5; 1-6. Two primary parts of those
requests were:
1. E-mails (including emails written using personal email accounts), letters,
memoranda, notes, or other forms of written communication regarding any matter
of public business of the City of El Paso from You to (or copied to, or blind
copied to) any council representative(s) or the Mayor or the City Manager from
January 1,2012 to the date of this request. This request includes all such written
communication regardless of whether other persons also were sent the
communication.
INTERVENOR ALLALA'S RESPONSE 11-25-13
Page 2 of14
362
TAB 3
[III RR 34-36]
Allala Objection to City's
"Custody and Control" Affidavits
November 25, 2013
03-13-00820-CV
1
1 REPORTER'S RECORD
2 TRIAL COURT CAUSE NO. D-1-GV-12-00173fILEDIN
3rd COURT OF APPEA S
3 CITY OF EL PASO IN THE DISTRICT ~ ~ R ~ TEXAS
12/26/201312:21 :03 PM
4 vs. TRAVIS COUNTY, 'DERmEYD.KYLE
Clerk
5 GREG ABBOTT 261ST JUDICIAL DISTRICT
6
7
8
9
10
11
12
13
14
PLEA TO THE JURISDICTION
NOVEMBER 25, 2013
15 On the 25th day of November, 2013, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable Orlinda Naranjo,
18 Judge Presiding, held in Austin, Travis County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
1 your--
Arguments by Mr. Alenshire
November 25, 2013
34
2 MR. ALESHIRE: It's the plea -- his plea
3 to the jurisdiction. It was attached. And the copy I
4 got--
5 THE COURT: Yes. So it's Exhibit B. It's
6
7
behind Tab 5. Okay.
MR. ALESHIRE: By the way, Your Honor, it
8 was -- November 14th is when it was served.
9 THE COURT: November 14th. Okay.
10 MR. ALESHIRE: This was served on me on
11 November the 14th.
12
13 Okay.
14
15 today?
16
1 7 other.
THE COURT:
MR. DENTON:
THE COURT:
And that's what it says.
Isn't that ten days before
Let's not argue with each
18 MR. ALESHIRE: In paragraph 11 on the
19 this is the Kristin Lynn Hamilton affidavit. It's
20 Exhibi t B.
21 THE COURT: I'm there.
22 MR. ALESHIRE: On page 2, paragraph 11,
23 third sentence, "I believe that all materials within the
24 City's custody or control were located and assimilated
25 by my office."
November 25, 2013
35
1
2 the plea.
That is the same language that is used in
On page 2 of their plea, paragraph 3, they
3 say, "These affidavits show the complete factual context
4 of compliance with the determination by the Attorney
5 General. "
6
7 Honor.
First of all, that's not enough, Your
We are entitled to get all the information we
8 asked for, not just what was determined by the AG.
9 But it says, "To the extent of materials
10 within the custody or control of the City of EI Paso."
11 That is a more narrow standard for which
12 records they are required to produce, than the Public
13 Information Act definition that includes all information
14 they own or have a right of access to.
15 Now, as far as Mr. Ortega's, we haven't
16 gotten there yet, but I did include an objection in our
17 response we filed today to paragraph 4 of our
18 response today, on page 2, we said, "Ayala objects to
19 Ortega's affidavit as being incomplete as to whether he
20 has or will turn over all records responsive to Ayala's
21 open records request of September 5th and October the
22 5th."
23 THE COURT: Okay. Since I haven't --
24
25
so -- but Mr. Ortega's is
MR. ALESHIRE:
okay.
That's on the motion to
November 25, 2013
36
1 quash. But they also included the same affidavits, the
2 three affidavits from the City, in addition to one by
3 Mr. Ortega.
4 And my point to you here, Your Honor, is,
5 we have had disagreement from day one as to what
6 constitutes public information that should have been
7 turned over in the first place. That persists here
8 today.
9 And what you have is affidavits using the
10 wrong legal standard for what constitutes public
11 information. It does not say in the Public Information
12 Act that public information is only information in the
13 custody or control of the City. It's broader than that.
14 As the AG. ruled, it includes any
15 information that the City owns or has a right of access
16 to. That includes public government records under the
17 Local Government Code that could be in the possession of
18 private individuals. And they have a responsibility to
19 go get it.
20 I just need to find out through
21 gentlemanly depositions of Mr. Ortega, just like the
22 other three, to determine for sure that they have given
23 all the records that we asked for, not just the issues
24 that they chose to raise with the Attorney General.
25 THE COURT: Okay. For the Attorney
TAB 4
[CR 413-23]
Allala's Evidence of Missing Records
CAUSE NO. D-I-GV-12-001731
CITY OF EL PASO, TEXAS
Plaintiff
v.
Gl{E:G ABBOTT, ATTORNEY
GENERALOF TEXAS,
Defendant
v.
STEPHANIE TOWNSEND ALLALA,
Intervenor,
12/4/20139:26:02 AM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
D-1-GV-12-001731
IN THE DISTRICT COURT OF
261
s1
JUDIClAL DISTRICT
TRAVIS COUNTY TEXAS
INTERVERNORfPLAINTIFF ALLALA'8 REPLY TO
CITY OF ELPASO'S PLEATOTHE JURISDICTIONAND
STEVE ORTEGA'S MOTIONto QUASII
1'0: ThelIono:rableOrlindaNarl:llljQ, Judge,419
th
District Court:
After heing afforded apopportunity to review documel'lts submitted to the parties by
witness Steve Ortega aft.er the last hearing on November 25
th
, Intervenor Allala asks the Court to
cortsider the following additional evidence and argllmentsllPporting Allala's request that the
Court postpone acting on the City's Plea to the Jurisdiction andpennit depositions of key
witnesses to proceed on the issue of whether all documents (local government records) requested
hyMs. Allala pursuant to the Texas Public Information Act (TPIA) (particularly that are "owned
by or that [the City] has a right ofaccess to") have beendisc1osed.
FACTS
1. Ms.. Allala's open records requests of September 5
th
and OctoberSth, 2012 were for:
1. E-mails (including emails written using personal email accounts), letters,
memoranda, notes, or other forms of written communication re.garding any matter
of public business of the City of HI Paso from you to (or copied to, or blind
copied to) any council representative(s) or the Mayor or the City Manager frOm
AHala's Supplemental Reply to El Paso's Plea to the Judsdiction and Ortega's Motion to Quash
Page lof7
413
___ __ '--o_ _ _ . ~ __, __~ __~ _ ~ . ___ ~ _ _ . ~ _ _._._._._ __. ~ _ . _ __. ~ . .:..... _ __, . -. __ _ _ ; . _~ _', _ _. _..-_., ,. , _ . __ ....
January 1,2012 to the date of this request. This request includes all such written
communication regardless of whether other persons also were sent the
commtmication.
2. From January 1, 2012 to the date of this request, E-mails; letters> memoranda,
notes, or other forms of written commtmication regarding pUblic bUSiness of the
City of El Paso from You to (or copied to, or blind-copied to), or from the
following persons to You (or copied to, or blind-copiedto You):
a. Paul L.Foster;
b. Scott D. Weaver;
c. Joshua W. m:mt;
d. H. L.Htmt;
e. Mountain Star Sports Group LLCor anY representative or
attorney thereof; .
f. FranklinMountain Sports Otoup LLC Or any representative
Or attorneY thereof;
g. Hunt Holdings Spotts Group LLCof any representative or
attorney thereof;
This request includes all suchvvrittencommunication regardless of whether other
persons also Were seht the communication.
2. An email (bates ORTOOOQ34,attached) sJlPplied by Mr. Ortega reveals that El Paso City
Manager has either not disclosed to the City, or the City hasnotdisc1osed toMs. Allala, all of
'theemails she created or received within the scope of Ms. AllaJa'$ open l'ecords request.
Attached ORT000034. Counsel for Ms. Allala l'tm a computer search 011 every document the
City of El Paso has provided in response to Ms. Allala'sopen records request, and this email,
between Ms. Joyce Wilson (using her personal email address beginning with "Joya917") and
Josh Hunt, was not provideciby the City. 1 This email was within in the scope ofthe October 5.,
2012 request (second part) as correspondence between the City Manager and Mr. Hunt. i
Counsel's search ternTS were "Joya917";"Septemher 11"; "McGinnis"; emd J o ~ h
2 The newspaper article referred to was an opinion piece by Mr. McGinnis etitical of the
City's decision to demolish the City HaH and publicly finance a basehall stadium for Mr. Hunt
and his associates. The City Manager's reply was that one of her employees, "Alan" was
pteparing a response to the McGinnisa1'ticle.
AlIala's Supplemental Reply to EI Paso's Plea to the JurisdictiOtl,emd Oliega'sMotion to Quash
Page 20f7
414
3. Out an abundance ofcautioJi, before addressing this issue to the Court, Counsel for Ms.
Allala consulted about this omission with the City's attorneys in this case, and they bonfirmed
thatelllail had not been provided to Al1ala previously because it "was not 011 the City server at
the time of the search." Exhibit 1-10 (emails with opposing counsel). 3
4. In addition, there is a conspicuous gap in emails disclosed by Mr. Ortega, With noemails
between January 5, 2012 and June 20; 2012 (other than an April email attachment Mr. Ortega
gave the Court separately). Note the dates between ORTOOOOI and ORT00002 (duplicated at
ORT000020andORT000021).
5. In disclosingemails from his Yahooeniailaccount,M:r. Ortega took it upon himself to
reciact information without seeking authorization for such l'eclactions from the Attorney General
pursuant to the TPIA.. For example, in addition to reclactingemail addresses of City of El Paso
officials, Mr. Ortega apparently redacted mailing address, phone number etc.
ofMr. Daniel S. Barrett, a consultant t6 the baseball stadium promoters. See ORT000036. The
unlawful redactions constitute a failureto disclose public information.
6. The TPIA, section 552;002(a)(2} includes within the scope of the TPIA, "public
'Information" wasthat collected, assembled, or maintained in connection with the transaction of
official business that the governmentaJ body "owns" or "has a right of access to." Instead of
daiming that all responsiw documents that El Paso .owns Or has a right of access to (such as
recordsdefiried as "local governrnent records" pursuant to the Local Government the
Plea (and attached supporting affidavit) clairnsonly that the City has disclosed all of the
responsive docnments that are within the City's "custody or .controL" (See City Supplemental
3 This Reply supplements <"Intervenorls Respon;;e and Objectiotis to El Pasds
Supplemental Plea to the Jurisdiction and Steve Ortega's Motion to Quash" and exhibits are
numbered accordingly.
Allala.'s Supplemental Reply to E1 Paso's Plea to the Jurisdiction Motion to Quash
Page 3 of7
415
.--_ __ --._._._-.-..-..- _-_._....,.__.._--_.._._.---"_ --_._ -.._._ -._.._._ _.. ..-._.__._..-.-.._----_ _._._-_._._._._--_._.......:..---_._ -_ .
Plea at 2, paragraph 3 Cc1aim,scompliance "...to the extent of materials within the custody or
control of the City of El Affidavit of Kristen Lynn Hamilton at paragraph 3
("documents ,.. that Were located on City servers or within the physical control oIchy employees
or officials;'); at paragraph 11 C. all materials within the City's custody or control were located
and assimilated by my office.").
7. There is a pending issue of whether the City had authority under TP1A section 552.137
(permitting redaction of certain email addresses of ''members of the public") to redact the email
addresses of the City Council Representatives, and. City Manager they used for correspondence
with each other or in the transaction of official business. This pending issue, alone,prec1udes
granting the City'S plea to the jlldsdiction.
ARGUMENT & AlJTlIORlTIES
R. To be entitled toa plea to the jurisdiction based on mootness, without affording Ms.
Allala an opportunity for her targeted discovery, the City's burden is toprovea$ a matter Oftaw
that all of the requested "public information" hasb,een diSClosed. A genuine issue of material
fact as to whether all of the requested public information has been disclosed is raised by:
Ca) the fact that the September 11, 2012 Joyce Wilson email to Josh Hunt ,Was not
disclosed by Ms., Wilson or the City;,
(b) the fact that the City has never offered any .sWOITl testimony or affidavit that the City
has disclosed all of the tecordsMs. Allala requested within the TPM's definition of <public
informatiOn" (including information the City owns or has a right of access to) as opposed to
claiming it had disclosed only infoITllation inits physical possession;
(c) the fact that the City has neverofferecl any sworn testimony or affidavit attesting
to complete disclosure ofthe' requested records from the City officials (Council Representatives
Allala's Supplemental Reply toEI Paso's Plea to the Jurisdiction and. Ortega's Motion to Quash
Page 4 of7
416
and City Manager} who, as Custodians of their records, personally created or received and
collected, assembled or maintained the local government goVetnments that are included in the
requested pUblic information;
Cd) the fac,t that Mr. Ortega's affidavit fails to swear that he has disclosed all of the
requested public information that he created or received, as opposed to claiming that he does
"not have any other relevant e--mails and no other responsive documentsorinforrnation... ,"
(emphasis addetl).Mr. Ortega's affidavit does not claim that he could not obtain, from Yahoo
for example, ernails even if he deleted them. MY. Ortega does not define what he means by
qualifying terms such as re1evanf'emailsor"responsive" documents. Furthermore, the Yahoo
emails he disclosed showthat he had placed 99+emails in his Yahoo "$pam" folder and 9 in
"Trash" that his affidavit indicates he did not search before his of records he
had previously withheld.
(e) the fact that the Gity'sP}ea ignores the peildingissue of whether, under TPIAsection
552.137, the City can redact email addresses of mE\mbers of the City Councilor of the City
Manager.
9. For the reasonBo previOUSly briefed to the Court, Ms. Allala asks the Court to postpone a
decision on the City's Plea to the Jurisdiction until Ms. AHala is afforded an opporttlility to
depose key witnesses about the 'central issue: whether public information within the scope of
Allala's open records requests have been disclosed. Ms. Allala asks the Court to deny Mr.
Ortega's motion to quash. If the depositions reveal that such public infonnation does sti1lexist,
Ms. AHala intends to ask the Court to issue a writ of mandamus for the City to 'Use its authority
obtain and disclose the local government records (the "public information") the City owns or has
a right of access to.
Allala's Reply to El Paso's Plea to the Jurisdiction and Ortega's Motion to Quash
Page 5 of7
417
PRAYER
For these reasons,. IntervenorlPlaintiff Allala asks the COUlt to postpone acting on the
City's Plea to the Jurisdiction until Intervenor is afforded an opportunity to conguct its
depositions On the question of whether all requested public information has been disclosed and,
if not, where suchadditionall'ecords may be obtained. In addition, Ms. Allala asks the Court to
deny Steve Ortega's Motion to Quash, and grant any other relief in equity or lawto which she is
entitled.
'LJ" __
Bill Aleshire
Texas BarNo. 24031810
RIGGS & ALESHIRE, P.C
700 Lavaca, Suite 920
Austin, Texas 78701
Telephone: (512)
Facsimile: (512) 457'-9066

Allala's Supplemental Replyto ElPaso's Plea to the Jurisdiction and Ortega's Motion to Quash
Page 607
, .. "_._--- _.._._-- _,.-..,--.."'. __.- - -_ _-,_._---.. .._.,_._-_.._ .
418
CERTIFICATE OF SERVICE
I hereby certify that a: true and correct copy of the foregoing docUtnel1t has been
on December 3; 2013, on the following:
BY
GEORGE E.. HYDE
ERIN HIGGINBOTHAM
State BarNo. 24065418
Denton, Navart'o, Rocha & Bernal
2500 W.Williatn Cannon Dr., Suite 609
Austin, Texas 78745
Telephone: (512)
Facsimile: (512)
wrge.hyde@tarnpage-aus.com

ATTOlli'jEYS FORPLAINTIFF
BY KSE:RVICE
MS. KIMBERLY L. FUCHS
Chief: Open Records Litigation
Administrative Law Division
300 West 15
th
Street, 10
th
floor
Austin, Texas 78701
Telephone: (512) 475-4195
Fax: (512) 320-0167

&'

ATTORNEY FORINTERYENOR
ATTORNEYSFORWITNESS
BYE-SERVICE
Carlos Evaristo Flores
Attorney at Law
Person,Whitworth, Botchers & Morales, LLP
602 East CaltonRd. 2nd Floor (78041)
P o Box 6668
Laredo, Texas 78042-6668
Telephone (956) 727-4441
Facsimile (95'6) 727-2696
Email: cf:1ores@personwhitwotth.com
ATTOR.NEYFORSTEVEORTEGA
Allala's Supplemental Reply to El Paso' sPlea to the Jurisdiction and Ortega's Motion to Quash
Page10f7
419

Atlal:bmel1t5:
FW:McGlnnls 91.1est today's EP Times
Sales andlistiilgsoffice Downtown.xls
From: Stf::le Ortega
Setlt:Tbursdi=lY, NoVE:mhe.. i4,
To: Carlos
Subject:FW: MCGinnis guest In tQday's EP Tlmes
On TuesdlilY. 2012 8:56AM, Josh Hunt ..
".-Original Messag$----
From: Josh Hunt
Sent: Tuesday, 2012 8:55 AM
To:'Joya917';. .
Sli,bject: 'ColUmnIst in todayiS EP Times
Tl1anks'Joyce. fthink the cIty needs to come out strongfyaQainstdistortions (lies) made byfhe likes
ofMcGinnis!Sa,fazarwitnc'aims like CityHall is valued at$38M. If I hl:lye my sq. footagetight for
city hall that puts is at $160/sq.ft which is laughable. three mostsignificantdowhtoWnofflce
bLJildIngs aU traded in the l.ast5 ye.ars and these are better designeq and ml:lintained buildings than
City Hall. Chase (strtlcturedparking), Wells Fargo parking) and traded
for'lessthan
c
$4Q/sq. ft. At$40/sq.ft., City Han would beVal.ued isbasically worth
the land it sits on.
... Original Message---
From: JQya9fT.

Oc:Josh'HlJllt
t
... ." ..
Subject:Re: Mc(3innisguest Colulllnistin today's EP Times
- ,
------
Alan is working en response t(){jay.
---Original Messag&---
From: Goodman, Leonard ..

Sent:$un, SepS. ZOt28:Z6am .
Subject: McGinnis gLiesfColumnist in today's I:P Times
1
Ol{'f:Ol)0034
420

To:
t,:
S",bJed:
BW"
Sc;ott TSchirhart '"Seott.TscAirhart@r:ampage-ilUS-,cOfll>
Mpnday, December 02, 20135:11 PM
Bi,1I Aleshire
Lowell Denton {!oweH.d'enton@rampage'-'sctcom);George Hyde; Christy
tflpfes@p,ersonwhitworth,corn; Hope Avila;: kit Weatherwax
RE: DOcument Production
iorepeat. Was not on the City servers when the search was made. We do riot h;;lV,ear.ly eVidence to indicate
that rtWtilS ever onthe City servers.
However, if it had been on the (fty servers at the titTle of the search, it would have been .picked up by the search criteria
use4 to fioathe docurnetlts responsive to cYU( Octoher 5, 2012 request.

DentiLlll
t
NaVafTO, Rocba &. Bernat
. A Professional Corporation
2500 'V'l. William Catlli.on Drivt", Suite 609
.l\:llstin. Texas 78745
Phone: (5J2) 2.79-:6431
Fax: (512)
"EliJaH:
Rllmpagelaw.com
CQNFIDENTIAl-ITY NOTICE
Tbis transmission is intended for the'irldividualQrentityto Which it isaddtessed,and may beinformaijonthat is FiRIVll.eGtD &
CONFIDtNT1Al. lfyQu.are not the Ifltel'lded recipient, or tile employee or agent responsible for delive,rintHhe messClQe to theintendetf
and'l)ave received this information inerrof,yoIJare bereby nQtified that any dissemination, copying Qf this
is ffyou hli!lV19received this .comlllLlnicati.on in error, pleasE/notify us immediately by teplyingtothe message and
deletingIHroluypur computer. Thankyou. .
from: Bill Aleshire
'Sent:' Monday, December' 02,20134:46 PM
To: Scott Tschirhart
Cc: Lowell Denton(Iowell.denton@)rampage-sa.com); GeorgeHyde; Christy Blirke; dlores@personwhi1;v'lorth,com; Hope'
AvIla; Kit Weatherwax
SUbjetl Re: Document Pro(juctiPn
Soyo'tl agree.thateitherMs. Wilsondid notdisdoseittP missed in the-search-the'City
Bill Aleshire
'R'iggsAleshire '&RayPC
700. ll;l-vaca, Su.i-te 920
AUstin, Texas 78701
S12 457-9838 direct
EXfUSIT'
IZ.-'/I)
421
51Z 750-5854 cell
512457.,.9066 fax
Aleshire@E:ALaw.coru
"On Dec Z, 2013; at 4:42' PM,ScottTschirl1art wrote:
Bm,
! was out of town lest weekforthe holiday; but we and the City follovveQupon the aUegatiol1s made in
yourecmaU of November26, and weare glad that you had us check on it before YOU made any
representati611S to the COLIft.
it apPf:ars that NllaH you attached (and which is attached here as is a September 11, 2012
cOnlrnIJf\k<.1,tionbetweenJosh Hunt and "Joya917" and bates labelled ORT000034. What appears to be
hand drawn arrcJ\Ns on the document se,ern to point to tbis liJoya917" identifier. These arrows are not
present in the documents producedby lVIr'.Ortega.
However, you are mistaken. "Joya917" is riot aii ideflHfierfor a City ofEI Paso address. We
con.firrnedlatethisafternoan that this isMs. Wilson's personal e-mail adqress.
Additionafly, We confirmed that theemail inquestidrl was not on the CitY servers at thetime of the
search. We have no evidence that the e-mail wi:lsever onthe City's servers, If iihad been on the Citv
servers at the t.!me of the search, it would have beenpkked up by the search criteria !Jsed in locating the
e-miili!$ reSpOh$ive to your October 5, 201? request:.
B"e'st r-egards,
Scott I\iI.
Denton, R()du& Uern:d
A Professional Corporation
2500 W. WiLliam CannonDrivc, Suitft 609
.Austin,. Texas 78745
Phone: (512)
" ( ... P)?79:-4".8..
1 ax.. ,)_ . h .
Email;

CON::fOENTIALITYNOTICf:
This transmission isintended forttle itldividual or entity towhichitis3ddresseci, and may that is
PRIVILEGED & CONFIDENTIAL. If you are l10tthe intended recipient, ol'lfi'eernpioYee 'oragant rtlsPQl1sible for
thel'l1e:;;sagetothe intelldedrecipieht have received this. il"lfotmatiotl in error, you ,are hereby Iwtlfied that any
dls;seminatipo,l:il$tFibution orcoPlIing of this comrnunicatiollis prohibita.t IfyoU have receivedthis cOmmunication In
errar, please notify us' immediately by replying tothe messageandde!ating if from your computer. Thank you.
From: Bill Aleshire
Sent: Tuesday, Novemper 2013 3:26.PM
To: iCarlos Flore.s'; Lowen Denton
Sui)ject: REi Document Production
Lowell,
2
422
Attached is one of the emaUs Mr, Orwga disdosedafterthe hearing yesterday. his emaHs
behveen Joyce Wilson, apparently using her CityofBl Pasoenmiladdress,andJosh Hunt, pins others
whose identity has been completely redacted.
This email shpuid have hef:l1 produced by the City because it fit Within the scope of Ms. AIlal;;i's
October 5,2012 req:(lest Bvt 1have conducted a search or 7,209 pages ofrecords provided by the City in
response requestsaJld 1do not find this 'Nilson also c1aiuled, in her
unsworn statementto the City Council on A.ugust 29; 2013 that she had fJ.miedover to the City aHcrrHiils
'Yvithil1 the scope of Ms. AHala's(andothers').requesUol' records.
1intend to inform the Judge ofthe findings ofmy search, but out an abundanCf'; of cantlon, lmn
providing you this information and asking that yon provide Inc with the Bates Page Numbcl' of the
S.eptember 11. 2.012 enlails between Josh HWlt and Ms. \,Vilsonifthey have previously been provided to
ttS. T\-voutd ask you to do so by dose of business Decernber2Hct.

Riggs Aleshire & Ray PC
700 lavaca, Suite 920
AUstin, Texas 78701
512. 457-9838 direct
512750-5854 cell
512 457-9066 fax

<OrtegflmailsRec(:'Jiv13 iI1Courttoomon 1}-25-13 at2.,.45pm -:eVA -JWUson;pdf>
423
TAB 5
Tex. Loc. Gov't Code 201.003
Definitions of "Custodian" and "Local Government Record"
RECORDS
Title 6
:ords in the lives of all
records is necessary to
government;
of permanent value is
lUrces concerning their
. property;
,ed on well-established
and practices
I records management
provide the assistance
::edures for the mainte-
III of local government
lrposes.
89.
) (revised as Chapter
or microfilm
enacting legislation
j ,?onflict. In 1975
181), autho-
. of records
repealed
.. '>repeals was
der Article
f [he change
RECORDS PROVISIONS-GENERALLY 201.003
ch. 201
201.003. Definitions
In this subtitle:
(0 "Commission" means the Texas State Library and Archives Commis-
sion.
(2) "Custodian" means the appointed or elected public officer who by the
state constitution, state law, ordinance, or administrative policy is in charge
of an office that creates or receives local government records.
(3) "Designee" means an employee of the commission designated by the
director and librarian as provided by Section 441.167, Government Code.
(4) "Director and librarian" means the executive and administrative officer
of the Texas State Library and Archives Commission.
(5) "Essential record" means any local government record necessary to the
resumption or continuation of government operations in an emergency or
disaster, to the re-creation of the legal and financial status of the government,
or to the protection and fulfillment of obligations to the people of the state.
(6) "Governing body" means the court, council, board, commission, or
other body established or authorized by law to govern the operations of a
local government. In those instances in which authority over an office or
department of a local government is shared by two or more governing bodies
or by a governing body and the state, the governing body, for the purposes of
this subtitle only, is the governing body that provides most of the operational
funding for the.pffice or department.
(7) "Local government" means a county, including all district and precinct
offices of a county, muniCipality, public school district, appraisal district, or
any other special-purpose district or authority.
(8) "Local government record" means any document, paper, letter, book,
map, photograph, sound or video recording, microfilm, magnetic tape, elec-
tronic medium, or other information recording medium, regardless of physi-
cal form or characteristic and regardless of whether public access to it is
open or restricted under the laws of the state, created or received by a local
government or any of its officers or employees pursuant to law, including an
ordinance, or in the transaction of public business. The term does not
include:
(A) extra identical copies of documents created only for convenience of
reference or research by officers or employees of the local government;
(B) notes, journals, diaries, and similar documents created by an officer
or employee of the local government for the officer's or employee's person-
al convenience;
(C) blank forms;
(D) stocks of publications;
(E) library and museum materials acquired solely for the purposes of
reference or display;
173
201.003 RECORDS
Title 6
(F) copies of documents in any media furnished to members of the
public to which they are entitled under Chapter 552, Government Code, or
other state law; or
(G) any records, correspondence, notes, memoranda, or documents,
other than a final written agreement described by Section 2009.054(c),
Government Code, associated with a matter conducted under an alterna-
tive dispute resolution procedure in which personnel of a state department
or institution, local government, special district, or other political subdivi-
sion of the state participated as a party, facilitated as an impartial third
party, or facilitated as the administrator of a dispute resolution system or
organization.
(9) "Office" means any office, department, division, program, commission,
bureau, board, committee, or similar entity of a local government.
(10) "Permanent record" or "record of permanent value" means any local
government record for which the retention period on a records retention
schedule issued by the commission is given as permanent.
(11) "Record" means a local government record.
(12) "Records control schedule" means a document prepared by or under
the authority of a records management officer listing the records maintained
by a local government or an elective county office, their retention periods,
and other records disposition information that the records management
program in each local government or elective county office may require.
(13) "Records management" means the application of management tech-
niques to the creation, use, maintenance, retention, preservation, and dispos-
al of records for the purposes of reducing the costs and improving the
efficiency of recordkeeping. The term includes the development of records
control schedules, the management of filing and information retrieval sys-
tems, the protection of essential and permanent records, the economical and
space-effective storage of inactive records, control over the creation and
distribution of forms, reports, and correspondence, and the management of
micrographics and electronic and other records storage systems.
(14) "Records management officer" means the person identified under
Section 203.001 or designated under Section 203.025 as the records manage-
ment officer.
(15) "Records retention schedule" means a document issued by the Texas
State Library and Archives Commission under authority of Subchapter J,
Chapter 441, Government Code,l establishing mandatory retention periods
for local government records.
(16) "Retention period" means the minimum time that must pass after the
creation, recording, or receipt of a record, or the fulfillment of certain actions
associated with a record, before it is eligible for destruction.
Amended by Acts 1989, 71st Leg., ch. 1248, 1, eff. Sept. 1, 1989; Acts 1995, 74th Leg.,
ch. 76, 5.95(90), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 31, 3, eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 1352, 3, eff. Sept. 1, 1999.
174
TAB 6
Tex. Lac. Gov't Code 201.005
Records as Public Property
Research References
Library References
Treatises and Practice Aids
Brooks, 22 Tex. Prac. Series 7.07, Micro-
film.
Library References
C.l.S. Criminal Law 449.
C.l.S. Records 60, 62 to 65, 67 to 93, 95.
Historical and Statutory Notes
Acts 1947, 50th Leg., p. 84, ch. 58, 1.
Vernon's Ann.Civ.St. art. 6574b, 3.
Acts 1987, 70th Leg., ch. 149, 1.
Historical and Statutory Notes
Acts 1947, 50th Leg."p. 84, ch. 58, 1.
Vernon's Ann.Civ.St. art. 6574b, 2.
Acts 1987, 70th Leg., ch. 149, 1.
Records e:->30 to 35.
Westlaw Topic No. 326.
Encyclopedias
TX lur. 3d Records & Recording Laws 3,
Books or Other. Media in Which Records
Kept. .
Former Sections:
A former section, relating to duplication stan-
dards and deleted by Acts 1989, 71st Leg., ch.
1248, I, was derived from:
Former Sections:
A former section, relating to duplication ap-
proval. and deleted by Acts 1989, 70th Leg., ch.
1248, 1, was derived from:
Research References
Encyclopedias Treatises and Practice Aids
TX lur. 3d Records & Recording Laws 4, Brooks, 22 Tex. Prac. Series 7.06, Local
Public Access; Copies. Government Records Act.
176
Records e:->3.
C.l.S. Records 4.
Amended by Acts 1989, 71st Leg., ch. 1248, 1, eff. Sept. 1, 1989.
'V.T.C.A., Government Code 441.151 et seq.
201.004 RECORDS
Title 6
provision may be maintained on microfilm or stored electronically in accor-
dance with the requirements of Chapters 204 and 205 and rules adopted under
those chapters unless the law specifically prohibits those methods.
Amended by Acts 1989, 71st Leg., ch. 1248, 1, eff. Sept. 1, 1989.
201.005. Declaration of Records as Public Property; Access
(a) Local government records created or received in the transaction of
official business or the creation or maintenance of which were paid for by
public funds are declared to be public property and are subject to the provi-
sions of this subtitle and Subchapter J, Chapter 441, Government Code.'
(b) A local government officer or employee does not have, by virtue of the
officer's or employee's position, any personal or property right to a local
government record even though the officer or employee developed or compiled
it.
TAB 7
Records Are Subject to TPIA
78
. Cross References
Brooks, 22 Tex. Prac.' Series 1.20,D1
lution.
Brooks, 22 Tex. Prac. Series 7.06, Lo
Government Records Act.
Brooks, 35 Tex. Prac: Series 10.45, L'
Government Records Ace
Brooks, 22 Tex. Prac. Series 7.06, Local
Government Records Act.' .
Brooks, 35JI'ex. Fiac;. Senks -
tention and Disposition of Records.
" Brodks,'35 Tex. Prac. Series 10..23, Right
of Public Inspection.
Brooks, 35 Tex. prac. Series-
ordable 'Insttumehts--Vital Statistics
Records. '.' , . ::
Encyclopedias
TX Jur. 3d Records and Recording Laws
2, Preparation, Custody, and Care of
Records; Reproduction.
Lange and Te:ic.Prac. Series
. 28.22,Effect onJnnQce:rltPurchasers
,of Ite-Recording of Deeds. .
Brooks, 22 Tex. Prac. Series 7.06, Local
.Government Records Act.
Lange and Leopold, 3 Tex. Prac. Series'
8.19, Filing of Instruments for Record
With County Clerk.
CHAPTER 202. DESTRUCTION AND'ALIENATION OF RECORDS
202.001. Destruction of Records
Time for assessment and collection of fee,
see V.T.e.A., Local Government :Code
395.016.
201.007. Records of Abolished Local Governments
Research References
Research
201.006. Records to be Delivered to Successor in Office
Research References
201.009. Access to Records
(a) Local government records are subject to Chapter 552,tGoverirrrient Code.
(b) Any local government record to which public access is deniedunderChapter
552, Government Code, including a birth record maintained'by a: iocalregistrar, is, If
still in existence, open to public inspection 75.years after it was originally created or
received. However, a death record maintained by a local registrar is, if still in'
existence, open to public inspection 55 years after it was .originally. created. ,or
received. This subsection does not limit the,authority of a governinghody. or
elected county officer to establish retention periods for records under Section
203.042.
(c) Subsection (b) does not apply' to a 'local government' record whose public
disclosure is proh,ibitedby an order of a court or by another state law. .' ',j
Amended by 1989, 71st Leg., ch.1248, 1, eff.Sept. 1, 1.98,9; Acts,1995;74thLeg., lih.
76;- 5.95(90),eff.Sept. 1, 1995; Acts 2011, 82nd Leg., ch. 462 (8;B. 1907)', 2,eff.'Sept. 1,
2011. .. '. . '.' .. ... ,
1 V.T.CA, Government Code 552.001 et seq.
TAB 8
Right of Recovery of Records
184
Library References
RECORDS
Title 6
Records e-:>21.
C.J.S. Records 57 to 59.
202.005. Right of Recovery
(a) The governing body may demand and receive from any person any local
government record in private possession created or received by the local
government the removal of which was not authorized by law.
(b) If the person in possession of a local government record refuses to deliver
the record on demand, the governing body may petition the district court of the
county in which the person resides for the return of the record. If the court
finds that the record is a local government record, the court shall order the
return of the record.
(c) As part of the petition to the district court or at any time after its filing,
the governing body may petition to have the record seized pending the determi-
nation of the court if the governing body finds the record is in danger of being
destroyed, mutilated, altered, secreted, or removed from the state.
(d) The director and librarian may demand and receive from any person any
local government record of permanent value in private possession.
(e) If the person in possession of the local government record of permanent
value refuses to deliver the record on demand, the director and librarian may
ask the attorney general to petition for the recovery of the record as provided
by this section. As part of the petition or at any time after its filing, the
attorney general may petition to have the record seized pending the determina-
tion of the court if the governing body finds the record is in danger of being
destroyed, mutilated, altered, secreted, or removed from the state.
(f) A local government record recovered as the result of a petition by the
attorney general shall be transferred to the custody of the commission or, at the
discretion of the director and librarian, be returned to the local government
that originally had custody of the record.
(g) If a local government refuses to deliver custody of a record to the
commission as provided by Section 201.007, 201.008, or 203.050, the director
and librarian may ask the attorney general to petition for recovery of the
record. If the court determines that the director and librarian has acted in
accordance with Section 201.007, 201.008, or 203.050, as applicable, and with
regard to Section 203.050, the court finds that the survival of the record is
imperiled, the court shall order the record to be transferred to the custody of
the commission.
(h) If a governing body petitions a court for the recovery of a record under
Subsection (b) and prevails or if the attorney general petitions a court for the
recovery of a record under Subsection (e) or (g) and prevails, the court shall
award attorney's fees and court costs to the prevailing party.
Added by Acts 1989, 71st Leg., ch. 1248, 1, eff. Sept. 1, 1989.
202.005

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IN THE DISTRICT COURT OF

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