Alvin Michael Cearley v. J. B. Smith, Smith County Sheriff--Appeal from 114th District Court of Smith County

NO. 12-07-00079-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALVIN MICHAEL CEARLEY, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

J. B. SMITH, SMITH COUNTY SHERIFF,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Alvin Michael Cearley, pro se, appeals from the trial court s denial of his request for a statutory writ of mandamus to compel the Smith County Sheriff to provide him with certain documents. We affirm.

Background

Alvin Michael Cearley filed a complaint with the Smith County Sheriff alleging that a constable had violated Texas law. A sheriff s investigator conducted an investigation and forwarded his report to the Smith County District Attorney in July 2004. Cearley filed an open records request on July 13, 2004 with the Smith County District Attorney to review documents related to the investigation. Thereafter he was permitted to review documents in the district attorney s office. In August 2004, Cearley filed a similar open records request with the Smith County Sheriff. He received no response, although he did discuss the matter with employees of the sheriff s office.

Cearley applied for a statutory writ of mandamus in April 2005 to compel disclosure of the records. A hearing was held, and the trial court denied relief, finding that the material sought no longer existed. This appeal followed.

Public Information Act

In eight issues, Cearley argues that the trial court should have issued a writ of mandamus. Specifically, Cearley contends that the requested documents were public records and should have been provided, that the sheriff was obligated to retain copies of these documents, that the sheriff had access to the documents from the district attorney, and that the sheriff had the requested documents.

Applicable Law

The Texas Public Information Act, found in Texas Government Code, chapter 552, is an expression of a fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people. . . . See Tex. Gov t Code Ann. 552.001(a) (Vernon 2004). Accordingly, because it is their own information, the people have the privilege of access to public documents. Id. That privilege is enforced by a statutory framework that requires government officials to justify any decision not to provide documents. Tex. Gov t Code Ann. 552.006, 552.301 (Vernon 2004 & Supp. 2007). The failure to provide documents may be tested in court by a statutory writ of mandamus. Tex. Gov t Code Ann. 552.321 (Vernon 2004).

The Act is to be liberally construed in favor of granting requests for information. Tex. Gov t Code Ann. 552.001(b) (Vernon 2004). Generally, a governmental body seeking to withhold requested information must submit a timely request to the attorney general, asserting which statutory exceptions to disclosure apply to the information. Id. 552.301; see also Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 157 (Tex. App. Austin 2001, no pet.). The governmental body must provide the information to the attorney general, and the attorney general then decides whether the information is to be disseminated.1 Tex. Gov t Code Ann. 552.303 (Vernon 2004).

An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal like any other civil suit. See Simmons v. Kuzmich, 166 S.W.3d 342, 345 46 (Tex. App. Fort Worth 2005, no pet.) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 791 n.1 (Tex. 1991); Harris v. Jones, 8 S.W.3d 383, 385 (Tex. App. El Paso 1999, no pet.); Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 473 (Tex. App. Dallas 1999, no pet.)). Therefore, we review the trial court s findings of fact and conclusions of law according to the standards generally applicable to a trial court s findings and conclusions. Simmons, 166 S.W.3d at 345 46. That is, we review findings of fact for legal and factual evidentiary support, and we review conclusions of law de novo. Id. (citing Dallas Area Rapid Transit, 4 S.W.3d at 473; Tex. Legal Found., 958 S.W.2d at 481). We do not apply the abuse of discretion standard applicable to mandamus actions that originate in our appellate courts. Simmons, 166 S.W.2d at 346; Harris, 8 S.W.3d at 385.

Analysis

At the root of this dispute is a factual controversy. Cearley argues that the sheriff has the documents he wishes to review. The sheriff says he does not have the documents.2 The sheriff s investigator testified that he delivered his report to the office of the district attorney and that his computer failed thereafter and he could not recover his copy of his report. The trial court found that the sheriff did not have the documents.

This case is similar to Economic Opportunities Development Corp. of San Antonio v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. San Antonio 1978, writ dism d). In that case, the plaintiff requested documents from a county office. Id. at 267. The county office could not provide the documents because it had forwarded all of the requested documents to the U. S. Government Accounting Office and to the Federal Bureau of Investigation. Id. The court held that a writ of mandamus was not appropriate because it could not achieve its intended purpose, that is the release of the documents. Id. at 267 68 ( A court will not grant a writ of mandamus unless it is convinced that the issuance of such a writ will effectively achieve the purpose sought by Appellant. ). That conclusion holds here as well. The trial court found that the documents had been lost and was not persuaded by Cearley s arguments that they could be retrieved from the computer system or that the sheriff actually still had the documents.3

That conclusion is supported by the record, and we are not persuaded that it is erroneous. Issuing a writ to require a public official to produce records he or she does not have is a futile act, and the trial court did not err in declining to do so.

Cearley acknowledges Bustamante, but argues that innovations to the law, requiring retention and preservation of records, mean that he should be granted relief. We disagree. The Texas Local Government Code imposes upon elected county officers certain duties and responsibilities relating to records management. Tex. Loc. Gov t. Code Ann. 203.001 .050 (Vernon 1999). Even if the sheriff had a statutory duty to retain the records Cearley seeks, the statutory writ of mandamus, if issued, only allows a trial court to compel a governmental body to make information available for public inspection. See Tex. Gov t Code Ann. 552.321(a). It does not enforce the rules regarding retention and preservation of records.

Finally, Cearley argues that the district attorney has the documents, and that the sheriff could simply ask for them from the district attorney and then comply with his request. Appellant s authority for this proposition is a 1990 public records opinion regarding a situation where two agencies made an agreement for one agency to maintain records and respond to public records requests for another. See Tex. Att y Gen. ORD-576 (1990). This opinion does not apply to this case because the district attorney does not maintain records for the sheriff and there is no agreement between them about how to respond to public records requests. The Act does not give the trial court the authority to compel a government agency to request a document from another government agency. Even if it did, there is no evidence that the district attorney has the documents Cearley sought.4 The district attorney testified that he had never seen the file, and the then assistant district attorney who handled the matter testified that the specific documents Cearley sought could not be located.

Cearley did not show that the sheriff had the requested documents and refused to make them available to him. The only remedy available under the lawsuit brought by Cearley was for the trial court to order the sheriff to provide the documents. The trial court found that the sheriff did not have the requested documents. The factual finding is supported by the record, and we hold that the trial court s legal conclusion not to order the production of documents that do not exist is correct. We overrule Appellant s eight issues.

Disposition

Having overruled Cearley s eight issues, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered October 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The procedures are slightly different for confidential information. See Tex. Gov t Code Ann. 552.101, 552.303 (Vernon 2006).

2 The sheriff never formally responded to Cearley s request and did not seek an opinion of the Texas Attorney General so the information sought is presumed to be public information. See Tex. Gov t Code Ann. 552.302 (Vernon 2006).

3 Cearley states that an image of the lost information is available on the investigator s computer. The evidence in this case included testimony from a computer specialist who tried to recover the lost information. He could not do so, and the trial court found that there was no evidence that the records were recoverable.

4 Cearley amended his initial complaint to include the district attorney, but later nonsuited those claims.