Autry Lee Jones v. City of Austin Police Department ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-00-00272-CV

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Autry Lee Jones, Appellant

v.

City of Austin Police Department, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. 99-09170, HONORABLE MARGARET COOPER, JUDGE PRESIDING

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Appellant Autry Lee Jones, acting pro se, appeals from the district court's ruling denying his request for an injunction and his "Motion to Hold Hearing on Writ of Injunction by Teleconference." The City of Austin Police Department (hereinafter "APD") is the appellee. Jones is seeking material in the possession of APD pertaining to a criminal investigation. Although not entirely clear from his pleadings, Jones apparently sought a declaratory judgment ordering APD to turn over the material. In four points of error, Jones claims that: (1) the district court's denial violated his First Amendment right under the United States Constitution to petition the courts; (2) the district court's denial of his request for a teleconference violated his Fifth Amendment right to due process; (3) the district court's denial of his motions violated his "civil rights"; and (4) APD waived its right to respond to Jones by filing in an untimely fashion. We will overrule all of Jones's points of error and affirm the district court's order denying his motions and requests.

FACTUAL AND PROCEDURAL BACKGROUND

Jones is currently incarcerated in a federal penitentiary in Florence, Colorado. He complains that the information he is seeking, which is in the possession of APD, will prove that he is innocent of the crimes of which he was convicted. According to Jones's original "Application For Writ Of Injunction," he was denied an open records request for the material in possession of APD in 1994. There is, however, no evidence of this in the record. Although Jones apparently filed numerous motions in this matter, none were properly served on the City of Austin.

DISCUSSION

Although we liberally construe all pleadings, we must still hold pro se litigants to the same standards as licensed attorneys. White v. Cole, 880 S.W.2d 292, 294 (Tex. App.-- Beaumont 1994, writ denied). This Court will address each of Jones's points of error in turn.

First, Jones complains that his First Amendment right of access to the courts to petition the government for a redress of grievances has been violated. We, of course, acknowledge such a right. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1994) ("[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances."). Jones, however, has been heard in court on numerous occasions. The lower court has heard his motions and properly denied them. Jones appears to be challenging a refusal to provide records under the Open Records Act. But the statute is clear, and under Tex. Gov't Code Ann. § 552.028 (West Supp. 2000), a governmental body need not comply with a request from an incarcerated individual. The city carried its burden by pointing out this fact. It is true that disclosure by a government entity is discretionary and that the entity is not prohibited from disclosing the requested information. Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.--Waco 1998, pet. denied), cert. denied, 527 U.S. 1009 (1999). There is no authority, however, that suggests the governmental body must produce or defend a reason for refusing to provide the requested information. The city may simply point to the statute that gives it the authority to make the refusal. Jones's First Amendment claim is baseless, and therefore we overrule this point of error.

Second, Jones states that his Fifth Amendment rights have been violated. Again, this claim is vague and unclear. He may be complaining that the denial of a teleconference was a due process violation, but we find this complaint to be without basis in fact. The court is not required to hold oral hearings by teleconference, and Jones fails to state a reason why it should be so required. We overrule this point of error.

Next, Jones asserts that his "civil rights" have been violated by APD's refusal to provide the information he desires. We cannot determine to which legally cognizable rights Jones is referring. This claim is without merit, and the point of error is overruled.

Finally, as to Jones's claim that APD waived its right to respond to his motions, we conclude that APD as a political subdivision was not properly served. Under section 17.024(b) of the Civil Practice and Remedies Code, service on a political subdivision must be on the mayor, clerk, secretary, or treasurer of the city. See Tex. Civ. Prac. & Rem. Code Ann. § 17.024(b) (West 1997). Jones attempted to serve the police department directly instead of serving the city in the manner required. Consequently, APD was never properly served and could not have waived its right to respond. Therefore, we overrule Jones's final point of error.

CONCLUSION

Having overruled all of Jones's points of error, we affirm the trial court's order.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd, and Yeakel

Affirmed

Filed: November 30, 2000

Do Not Publish

terial. In four points of error, Jones claims that: (1) the district court's denial violated his First Amendment right under the United States Constitution to petition the courts; (2) the district court's denial of his request for a teleconference violated his Fifth Amendment right to due process; (3) the district court's denial of his motions violated his "civil rights"; and (4) APD waived its right to respond to Jones by filing in an untimely fashion. We will overrule all of Jones's points of error and affirm the district court's order denying his motions and requests.

FACTUAL AND PROCEDURAL BACKGROUND

Jones is currently incarcerated in a federal penitentiary in Florence, Colorado. He complains that the information he is seeking, which is in the possession of APD, will prove that he is innocent of the crimes of which he was convicted. According to Jones's original "Application For Writ Of Injunction," he was denied an open records request for the material in possession of APD in 1994. There is, however, no evidence of this in the record. Although Jones apparently filed numerous motions in this matter, none were properly served on the City of Austin.

DISCUSSION

Although we liberally construe all pleadings, we must still hold pro se litigants to the same standards as licensed attorneys. White v. Cole, 880 S.W.2d 292, 294 (Tex. App.-- Beaumont 1994, writ denied). This Court will address each of Jones's points of error in turn.

First, Jones complains that his First Amendment right of access to the courts to petition the government for a redress of grievances has been violated. We, of course, acknowledge such a right. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1994) ("[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances."). Jones, however, has been heard in court on numerous occasions. The lower court has heard his motions and properly denied them. Jones appears to be challenging a refusal to provide records under the Open Records Act. But the statute is clear, and under Tex. Gov't Code Ann. § 552.028 (West Supp. 2000), a governmental body need not comply with a request from an incarcerated individual. The city carried its burden by pointing out this fact. It is true that disclosure by a government entity is discretionary and that the entity is not prohibited from disclosing the requested information. Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.--Waco 1998, pet. denied), cert. denied, 527 U.S. 1009 (1999). There is no authority, however, that suggests the governmental body must produce or defend a reason for refusing to provide the requested information. The city may simply point to the statute that gives it the authority to make the refusal. Jones's First Amendment claim is baseless, and therefore we overrule this point of error.

Second, Jones states that his Fifth Amendment rights have been violated. Again, this claim is vague and unclear. He may be complaining that the denial of a teleconference was a due process