Creel v. Sheriff of Medina County

OPINION

REEVES, Justice.

This is an appeal from the denial of the trial court to order the Sheriff and District Attorney of Medina County to furnish copies of documents in their custody pursuant to TEX.REV.CIV.STAT. ANN. art. 6252-17a (Vernon Supp.1988).

Appellant, Lynn Murphy Creel, is an inmate in the Texas Department of Corrections serving a life sentence after having been convicted of the capital murder of Wilson James Smith in Bexar County. Creel was also indicted by the Medina County Grand Jury for the aggravated robbery and kidnapping of Smith. All three of the alleged felonies grew out of the same occurrence. The Medina County indictments were dismissed at the instance of the District Attorney, who gave as his reason for dismissal the conviction and sentence of Creel in the capital murder case.

Relying on art. 6252-17a, § 4, the appellant requested from both officials copies of their files iñ cause nos. 3,572 and 3,573. The State denied the request relying on sections 3(a)(1), 3(a)(3), and 3(a)(8) of that same article. Those sections provide that the following information is not available for public disclosure:

(1) information deemed confidential by law, either Constitutional, statutory, or by judicial decision;

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(3) information relating to litigation of a criminal or civil nature and settlement negotiations, to which the state or political subdivision is, or may be, a party, ...

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(8) records of law enforcement agencies and prosecutors that deal with the detection, investigation, and prosecution of crime and the internal records and notations of such law enforcement agencies and prosecutors which are maintained for internal use in matters relating to law enforcement prosecution.

Section 3(e) of that article provides:

For purposes of Subsection (a)(3) of this section, the state or a political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and post-conviction remedies in state and federal court [Emphasis added.]

The alleged offenses of aggravated robbery and kidnapping have been barred by the statute of limitations. TEX.CODE CRIM.PROC.ANN. art. 12.01 (Vernon Supp.1988). The State contends appellant’s conviction for capital murder is subject to a post-conviction remedy which requires that the records remain free from disclosure. Creel is not seeking the records from Be-xar County, he is seeking the records held by the District Attorney and Sheriff of Medina County involving different offenses. There is no post-conviction remedy applicable to the Medina County cases.

Article 6252-17a, § 7(a) provides:

(a) If a governmental body receives a written request for information which it considers within one of the exceptions stated in Section 3 of this Act, but there has been no previous determination that it falls within one of the exceptions, the governmental body within a reasonable time, no later than ten days, after receiving a written request must request a decision from the attorney general to determine whether the information is within that exception. If a decision is not so requested, the information shall be presumed to be public information.

(b) The attorney general shall forthwith render a decision, consistent with standards of due process, to determine whether the requested information is a public record or within one of the above stated exceptions. The specific information requested shall be supplied to the attorney general but shall not be disclosed until a final determination has been made. The attorney general shall issue a written opinion based upon the determination made on the request.

Here, an opinion on the information’s status was not requested from the Attorney General’s Office. The information is, therefore, presumed to be public information.

The State further contends that the records were made available to Creel’s attorney and that Creel has had an opportunity to see them. The fact that Creel might have seen the records at a prior time does not preclude him the right to the records at a subsequent time.

We are of the opinion that the records sought by Creel are now public records. To obtain mandamus relief a relator must show: (1) no other remedy at law is available, and (2) that the act sought to be compelled is ministerial, not discretionary. Berry v. Hughes, 710 S.W.2d 600, 601 (Tex.Crim.App.1986). Appellant has shown both.

This cause is reversed and it is rendered that the records now in the custody of the Sheriff and the District Attorney of Medina County, in Cause Nos. 3,572 and 3,573 be deemed public records.