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-

- CAUSE NO. 2010-28404


- LOUIS GUTHRIE, Petitioner § IN THE DISTRICT COURT OF

- MARCUS STAUDT, Petitioner

vs.
§
§
§

- ADRIAN GARCIA, SHERIFF OF


HARRIS COUNTY, TEXAS
§
§
§
HARRIS COUNTY, TEXAS

Respondent §
§ Lt± JUDICIAL DISTRICT

- ORIGINAL PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Petitioners Louis Guthrie and Marcus Staudt and file their Original Petition

for Writ of Mandamus ordering that the Honorable Adrian Garcia, the Sheriff of Harris County,

Texas, comply with the Texas Public Information Act.

- JURISDICTION AND VENUE

1. District Court jurisdiction consists of exclusive, appellate, and original

- jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate,

or original jurisdiction may be conferred by this Constitution or other law on some other court,

- tribunal, or administrative body. District Court judges shall have the power to issue writs

necessary to enforce their jurisdiction. Tex. Const. Art. V, § 8. This Court has jurisdiction to

mandamus the Respondent pursuant to Tex. Gov't Code § 552.321 (Vemons XXX).

2. Venue is Harris County, Texas. Tex. Civ. Prac. & Rem. Code Ann § 15.002 (a)

(1).
FILEDLoren Jackson
District Clerk

Page I ofl2
Original Petition for Writ ofMandnmus
MAY 05 2010
Sherif/Garcia's violation ofTPIA
Time: --,.,..-;----;:-....,.....,0------
Harris County, Texas
By
Deputy
__
-
PARTIES AND SERVICE>

- 3.

4.
Petitioner Louis Guthrie is a resident of Harris County, Texas.

Petitioner Marcus Staudt is a resident of Harris County, Texas.

5. Respondent Garcia may be served at the Honorable Adrian Garcia, Sheriff of

- Harris County, 1200 Baker, Houston, Texas 77002, Telephone: 713-755-8129, Fax: 713-755-

6228. Harris County, Texas may be served by and through the Harris County Judge, the

Honorable Ed Emmett, 1001 Preston, Suite #911, Houston, Texas 77002, Telephone: 713-755-

4000, Fax: 713-755-8379.

FACTS

6. The Texas Public Information Act (TPIA) is codified in Chapter 552 of the Tex.

- Gov't. Code Ann. (Vernon's 2004). The Legislative policy is clearly stated in

Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the 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, it is the policy of this state that each

- person is entitled, unless otherwise expressly provided by law, at all times to complete

information· about the affairs of government and the official acts of public officials and

employees. The people, in delegating authority, do not give their public servants the right to

decide what is good for the people to know and what is not good for them to know. The people

insist on remaining informed so that they may retain control over the instruments they have

created. The provisions of this chapter shall be liberally construed to implement this policy.

(b) This chapter shall be liberally construed in favor of granting a request for

information.

... Page 2 of 12
Original Petition for Writ ofMandamus
Sherif/Garcia's violation ofTP1A
...

- 7. The Harris County Sheriffs Office is supported by public funds and is therefore a

- governmental body to which the Texas Public Information Act applies. Tex. Gov't Code §

552.003(1)(A)(xii).
- 8. The Honorable Adrian Garcia, as the elected Sheriff of Harris County, Texas is

- the public information officer who is responsible for complying with Texas Public Information

.. Act.Id. § 552.201 (b).

9. On April 7, 2010, in an attempt to defend Marcus Staudt, wrongfully accused of

- falsifying payroll documents, the undersigned attorney requested Respondent Garcia provide

.. "Any information, as defined by Id. § 552.002 (a) stored in any medium as defined by Id. §

552.002 (b), related to payroll inaccuracies involving personnel assigned to the patrol office

- located at 23828 State Highway 249." [See request for information to Respondent Garcia,

.. attached hereto and incorporated herein for all purposes as Exhibit 1.].

10. 23828 State Highway 249 is the Sheriffs District 5 patrol station. [See Google

map, attached hereto and incorporate herein for all purposes as Exhibit 2].

11. Acting on behalf of Respondent Garcia and by letter dated April 19, 2010,

Assistant C0unty Attorney James Savage informed the undersigned "The Sheriff s Office has

conducted a good faith search for this information; however, we could find no records responsive

- to your request." [See letter dated April 19,2010 from James Savage, attached hereto and

incorporated herein for all purposes as Exhibit 3].

12. In fact, there are extensive records related to payroll inaccuracies at the District 5

.. station. The undersigned made an open records request to Beverly Kaufman, the County Clerk of

Harris County, Texas. This request revealed letters from Respondent Garcia to Commissioners

Court requesting authorization to correct payroll records for an attached list of employees,

- Page 3 oj12
Original Petitionjor Writ ojMandamus
Sheriff Garcia 's violation ojTPJA

....
.. including personnel assigned to District 5. [See letter from Respondent Garcia to County Judge

- Ed Emmett and members of Commissioners Court dated July 15,2009, attached hereto and

incorporated herein for all purposes as Exhibit 4]. [See letter from Respondent Garcia to County

Judge Ed Emmett and members of Commissioners Court dated September 17,2009, attached

- hereto and incorporated herein for all purposes as Exhibit 5].

- 13. Despite Respondent Garcia's claim there are no records regarding payroll

inaccuracies at District 5, an open records request to the Harris County Sheriffs Civil Service

Commission revealed that Respondent Garcia suspended and demoted his employee Heather

.. Whitman for falsifying payroll entries at District 5. [See attached Disciplinary Action dated

..
February 24,2010, attached hereto and incorporated herein for all purposes as Exhibit 6] .

14. This same disciplinary action notes "A subsequent audit of the payroll documents

.. for District V failed to uncover any Time and Attendance Records (timesheets) for you." [See

page 2, paragraph 2 Exhibit 6]. Thus, even though Respondent Garcia was aware of payroll

inaccuracies at District 5 as recently as 42 days prior to the undersigned's request for public

.. information, Respondent Garcia denied the existence of records via James Savage letter dated

April 19, 2010. [See Exhibit 3].


... 15. It is not known whether Respondent Garcia denied the existence of the records

because (1) they have been destroyed, or (2) because he refuses to release them. What is known

is that either reason constitutes criminal conduct. "DESTRUCTION, REMOVAL, OR

ALTERATION OF PUBLIC INFORMATION. (a) A person commits an offense if the person

wilfully destroys, mutilates, removes without permission as provided by this chapter, or alters

public information. (b) An offense under this section is a misdemeanor punishable by: (1) a

fine of not less than $25 or more than $4,000; (2) confinement in the county jail for not less than

- Page 4 oj 12
Original Petitionjor Writ ojMandamus
Sheriff Garcia 's violation ojTPIA

...
- three days or more than three months; or (3) both the fine and confinement." Tex. Gov't Code §

- 552.351. "FAILURE OR REFUSAL OF OFFICER FOR PUBLIC INFORMAnON TO

PROVIDE ACCESS TO OR COPYING OF PUBLIC INFORMATION. (a) An officer for

public information, or the officer's agent, commits an offense if, with criminal negligence, the

officer or the officer's agent fails or refuses to give access to, or to permit or provide copying of,

public information to a requestor as provided by this chapter: (e) An offense under this section is

-
a misdemeanor punishable by: (l) a fine of not more than $1,000; (2) confinement in the county

jail for not more than six months; or (3) both the fine and confinement. (f) A violation under

- this section constitutes official misconduct. Tex. Gov't Code § 552.353.

16. This failure to comply with the Texas Public Information Act is not a bureaucratic

- error, but consistent with the pattern Respondent Garcia has established since taking office. The

- law is well settled that administrative investigations that result in the discipline of a public

employee are public information. [See Open Records Letter Ruling OR 2003-0891, attached

hereto and incorporated herein for all purposes as Exhibit 7]. Despite that, Respondent Garcia

- regularly attempts to frustrate attempts to obtain records related to employee discipline.

17. . A December 18, 2010 request by Marcus Staudt for a copy of the administrative

file related to his disciplinary action was denied by Respondent Garcia, who sought an Attorney

General opinion on whether such a file was public information. Via letter dated March 9,2010,

.. the Attorney General informed Respondent Garcia through Assistant County Attorney David

Swope the file was public information and must be released. [See Open Records Letter Ruling

.. OR 2010-3375, attached hereto and incorporated herein for all purposes as Exhibit 8]. Despite

the Attorney General's ruling, Respondent Garcia refused to release the public information. It

was only after the undersigned, who represents Marcus Staudt, filed a formal complaint with the

- Page 50f12
Original Petition for Writ of Mandamus
SheriffGarcia 's violation o[TPJA

...
-
Attorney General about Respondent Garcia's continued violation of law that the majority of the

- requested records were produced. [See formal complaint to Attorney General, attached hereto

and incorporated herein for all purposes as Exhibit 9].

18. But even then, Respondent Garcia still has refused to produce all the records

related to the Marcus Staudt case, refusing to release a copy of a hand written "anonymous

- complaint" that was shown to Marcus Staudt by Internal Affairs Investigator Donald Althouse on

September 2, 2009. Nor has Respondent Garcia filed suit within 30 days of the Attorney General

ruling seeking relief from compliance with the ruling. Tex. Gov't Code § 552.324 (b).

- 19. On March 5, 2010, in the course of representing Petitioner Guthrie, the

undersigned attorney made a request for information related to the discipline of Deputy Pete

- Galvan. Respondent Garcia neither released the information, nor requested an Attorney General

opinion as required by law. Again, it was only after the undersigned filed a formal complaint

with the Attorney General that Respondent Garcia released most of the records. [See Exhibit 9,
.. pg. 2 and pg. 14]. However, like in the Staudt case, Respondent Garcia continues to withhold

- information. In this case, he refuses to release a copy of a scene video of Deputy Galvan

undergoing-sobriety testing by the Texas Highway Patrol. This video is clearly referenced on pg.

4 ofIntemal Affairs file 09-0175-0622 that was released. [See pg 4, attached hereto and

incorporated herein for all purposes as Exhibit 10].

20. On April 5, 2010, again in the course of representing Petitioner Guthrie, the

undersigned made a request for any information related to the administrative investigation that

resulted in the discipline of Major James M. Kirk. [See attached request date April 5, 2010,

attached hereto and incorporated herein for all purposes as Exhibit 11]. Consistent with

Respondent Garcia's past practice of delay and deny, Respondent Garcia requested an Attorney

Page 60/12
Original Pelilion/or Writ 0/ Mandamus

..
SheriffGarcia 's violation o/TPIA
General opinion and cited the "law enforcement exception" found in Tex. Gov't Code § 552.108

- as one ofthe numerous exceptions he thought applied. This exception prevents disclosing

records where releasing them would interfere with the detection, arrest and prosecution of a

violator. Respondent Garcia also claimed exception to release under § 552.132, which relates to

the confidentiality of a crime victim. These claims of exceptions conflict with statements made

to the public by Respondent Garcia's spokesman, Mr. Alan Bernstein, who was acting on

Respondent Garcia's behalf when Mr. Bernstein informed the Houston Chronicle that Major
.. Kirk "was dismissed from his duties at the discretion of the Sheriff due to administrative

violations." The same article also states: "No findings of criminal wrongdoing have been

forwarded to the Harris County District Attorney's Office, sheriff's spokesman Alan Bernstein

said." [See Houston Chronicle article dated Apri16, 2010, attached hereto and incorporated

herein for all purposes as Exhibit 12]. Assuming that Mr. Bernstein, a respected former

journalist, was truthful in his public statements made on behalf of Respondent Garcia, the
.. purpose of Respondent Garcia claiming these exceptions is to delay releasing information he

knows is public.

21.· Respondent Garcia ha.s failed in the past to release all the records related to

administrative investigations until the Attorney General intervened. In a previous request for

- information related to the discipline of Petitioner Guthrie, Respondent Garcia failed to provide

.. audio recordings of witnesses; recordings that were clearly referenced in the documents he did

provide. Furthermore, Respondent Garcia's subordinates denied the existence of these recordings

when interviewed by Assistant County Attorney Douglas Ray, then investigating a formal

.. complaint the undersigned's made to Harris County Attorney Vince Ryan regarding Respondent

Garcia's failure to comply with the Texas Public Information Act. Mr. Ray, who was acting on

Page 7 of 12
Original Peli/ion for Writ ofMandamus
SheriffGarcia 's viola/ion afTP1A
..
.. the good faith assumption Respondent Garcia's subordinates were truthful, subsequently

classified the undersigned's complaint as unfounded. [See letter from Douglas Ray dated July

.. 20,2009, attached hereto and incorporated herein for all purposes as Exhibit 13]. The

undersigned then made a formal complaint to the Attorney General. After a few inquiries from

the Attorney General's Office, twenty-eight (28) recorded witness statements and sixteen (16)

recorded phone conversations were produced; records Respondent Garcia's office had previously

denied existed. [See letter from Assistant Attorney General Lance Kutnick, attached hereto and

- incorporated herein for all purposes as Exhibit 14].

.. CAUSE OF ACTION

22. The Petitioners seek a writ of mandamus compelling Responded Garcia, the

elected Sheriff of Harris County, Texas, to provide public information. The Petitioners are

entitled to mandamus because (1) Respondent Garcia did not ask for an Attorney General's

ruling in conformance with the requirement of Subchapter G of the TPIA; (2) the Attorney

... General ruled the requested information is public information and is not excepted from

disclosure under Subchapter C of the TPIA; (3) the requested information is subject to disclosure
... under the TPIA, as a matter of law; and (4) Respondent Garcia refuses to provide the requested

information to the requestor. Tex. Gov't Code § 552.321 (a); Thomas v. Cornyn, 71 S.W. 3d 473

(Tex. App. - Austin 2002).


... 23. "The custodian is not authorized to withhold information merely because he considers

it to be exempt from disclosure." City ofHouston v. Houston Chronicle Publ'g Co., 673 S.W.2d

316,323 (Tex. App. - Houston [1 st Dist.] 1984).

Page 8 of12
Original Petition for Writ ofMandamus
SherifJGarcia's violation ofTPIA
-
RELIEF REQUESTED

- 24. The undersigned requests a Writ of Mandamus compelling Respondent Garcia to

- comply with the April 7, 2010 request for all information related to the payroll inaccuracies at

the patrol station located at 23828 State Highway 249.

- 25. The undersigned requests a Writ of Mandamus compelling Respondent Garcia to

- comply with Attorney General Open Records Letter Ruling OR 2010-3375 and release all

information related to the administrative investigation of Marcus Staudt.

26. The undersigned requests a Writ of Mandamus compelling Respondent Garcia

- release all information related to the request received for the discipline of Deputy Peter Galvan,

including the copy of the scene video Respondent Garcia has in his possession.

- 27. The undersigned requests a Writ of Mandamus compelling Respondent Garcia

.. release all information related to the administrative investigation that resulted in the discipline

..
then Major James Kirk.

..
-
..

- Page 9 of 12
Original Petition for Writ ofMandamus
Sherif/Garcia's violation ofTPIA
...
...
PRAYER

... WHEREFORE PREMISES CONSIDERED, the undersigned asks that Respondent

Adrian Garcia, Sheriff of Harris County, Texas, be summoned to appear and show cause why a .

writ of mandamus should not be issued compelling Respondent to comply with the Texas Public

Information Act, codified in Chapter 552 of the Texas Government Code, The undersigned also

asks that all costs of litigation and attorney fees be adjudged against Respondent Adrian Garcia,

the Sheriff of Harris County.

Undersigned further prays for such other and further relief, both general and special, at

- law and in equity, to which he may be justly entitled.

.. Respectfully submitted,

MUSICK & MUSICK, LLP

- John P. Denholm
State Bar # 24063596
397 N. Sam Houston Pkwy E., #325
Houston, Texas 77060
832-448-1148 (Office)
832-448-1147 (Fax)

Attorney for Petitioner

... Page 100f12


Original Petition for Writ ofMandamus
SheriffGarcia 's violation ofTPlA
- VERIFICATION

..
-
THE STATE OF TEXAS §

COUNTY OF HARRIS §

BEFORE ME, the undersigned Notary Public, on this day personally appeared MARCUS

C. STAUDT, known to me to be the person whose name is subscribed below on this

verification, and being by me duly sworn on his oath states:

.. 1. that he is over 21 years of age, has never been convicted of a felony and is

.. otherwise fully competent to make this statement; and

2. that the facts asserted in the foregoing Petition for Writ of Mandamus accurately

recount his communications and contact with the office of Respondent Adrian Garcia, Sheriff of

Harris County and this his personal knowledge is derived from personal participation,

involvement and witnessing the facts described in the Petition. The facts in the Petition are true
.. and correct.

$c:S--
MARCUS C. STAUDT

.. SUBSCRIBED AND SWORN to before me, by MARCUS C. STAUDT, on this the

t/"'-day of MAY, 2010.

VICKI SHAY BYERS


MY COMMISSION EXPIRES Notary Public in an
October 28,2013
State of Texas

Page 12 of 12
Origioo/ Petition for Writ ofMandamus
SheriffGarcia 's violation ojTPfA
VERIFICATION

THE STATE OF TEXAS §

COUNTY OF HARRIS §

- BEFORE ME, the undersigned Notary Public, on this day personally appeared LOUIS T.

- GUTHRIE, known to me to be the person whose name is subscribed below on this verification,

and being by me duly sworn on his oath states:

1. that he is over 21 years of age, has never been convicted of a felony and is

otherwise fully competent to make this statement; and

2. that the facts asserted in the foregoing Petition for Writ of Mandamus accurately

- recount his communications and contact with the office of Respondent Adrian Garcia, Sheriff of

- Harris County and this his personal knowledge is derived from personal participation,

involvement and witnessing the facts described in the Petition. The facts in the Petition are true

and correct.

-
SUBSCRIBED AND SWORN to before me, by LOUIS T. GUTHRIE, on this the
day ofMAY, 2010.
r
- Notary Public in an
... VICKI SHAY SYERS
MY COMMISSION EXPIRES
State of Texas
October 28, 2013

Page II of12
Original Petilion for Writ ofMandamus
SheriffGarcia 's violation ofTPlA

-
-
- rJ . \{
MUSICK & MUSICK, LLP ArrORNEYSATLAW
- ?

397N,SAMHoUSTONPARKWAYE"SUI'rn325 ' HOUSTON,TExAs77060 ',TELEPHONE: (281)443-7747 • FAX: (832)448-1147

JOANNE M. MUSICK AMANDA G. DOWNlNG


JOANNE@MUSICKLAWOPFICE.COM AMANDA@MuS1CKLAWOFFlCE.COM
Board Certified 1uvenile Llow
r .... Board of Losol Speeialiuuon JOHNP.DENHOLM.
JOHN@MuSlCKI..AWOFFICE,COM
EARLD. MUSlCK
EAIlL@MuSICKLAWOFFICE.COM

- April 7, 2010

- The Honorable Adrian Garcia via CM/RRR #7009-2820-0000-7740-5807


m
X
I
- Sheriff of Harris County, Texas -OJ
1200 Baker
Houston, Texas 77002 ---I
- Re: Request for RecordslInformation Made Pursuant to Texas Public Information Act

Dear. Sheriff Garcia,

Pursuant to the Texas Public Information Act (codified at TEX. GOV'T CODE ANN.
Chap. 552), I respectfully request access to/copies of the following record(s) maintained by your
agency:

Any information, as defined by TEX. GOV'T CODE ANN. § 552,002 (a) stored in

- any medium as dermed by TEX. GOV'T CODE ANN. § 552.002 (b), related to
payroll inaccuracies involving personnel assigned to the patrol office located at
23828 State Highway 249.

- I am 9f the opinion that this information constitutes a public record. If you agree, please
advise of a time and place when/where I might be able to review such record(s), or alternatively,

- please advise ofthe reproduction cost for all such information.

- Sincerely yours,

- John P. Denholm

-
-
-

- :::' Y D
., \ " II
(. Jll ',,--'I" I, I'1 )

I jl'

249
Illld Il1klll"I"I:';lllli ijrl
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EXHIBIT 2
-
- ''''''

April 19, 2009

Mr. John P. Denholm

.. Musick & Musick, LLP


397 N. Sam Houston Parkway East, Suite 325
Houston, Texas 77060

Re: Request for Records.

- Dear Mr. Denholm:

You recently submitted a written request to the Harris County Sheriff s Office asking to be
provided with certain information related to payroll inaccuracies involving personnel assigned to
the patrol office located at 23828 State Highway 249.

The Sheriff's Office has conducted a good faith search for this information; however, we could
find no records responsive to your request.

- Please advise if and to what extent this office may be of further assistance.

Respectfully,

'>1
James J. Savage
Assistant County Attorney "'\

.. JJS/ar

EXHIBIT 3
..
12008"ker Houstoll, fexas 77002 /13. 7 55.6044 IiWW.hcso.hctx net EXECUTIVE BUREAU
.. SHE.RIFF ADR1AN GARCIA

-
July 15,2009

Vote of the Court: y No Abstain


o


The Honorable Judge Ed Emmett Judge Emmett
And Members of Commissioners Court
Harris County Administration Building
Houston, Tx. 77002
Comm. Lee
Comm. Garcia
Comm. Radack
Comm. Eversole
§
- Honorable Members of Court:

The Sheriffs Office respectfully request authorization from Commissioners Court to work with
the Auditor's Office to correct the payroll records of the attached list of employees.

Your favorable consideration of the above request is sincerely appreciated.

Respectfully submitted, _

10-
ADRIAN GARCIA, EXHIBIT 4
HARRIS COUNTY

- AG:cd

-
Presented to Commissioner's Court
JUL 28 2009
APPROVE GIL-
Recorded Page 102/'

EXECUTIVE BUREAU
\
1 I I 'I 1 I I 1 , 't I , I
• I 1 , 'I

PCN#" DATE IFROM TQ MAJOR REASON/BuREAu/P


540401061K 04/04/09 8C/8S 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL
540401061K 04/10/09 8X 8H POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL
5404010146 03/10/09 9W/1S 9W/1111 S POSTING ERROR/SUPPORT SERVICES BUREAU/JENNIFER MACIAS
5404010146 03/11/09 9W/1S 9W/1111S POSTING ERROR/SUPPORT SERVICES BUREAU/JENNIFER MACIAS
5404010T01 06/03/09 OFF 8W SMITH POSTING ERROR/701 DETENTION BUREAu/JENNIFER JOHNSON
5403058071 03/28/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES
5403058071 04/04/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES
5403058071 04/11/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES
540628912V OS/26/09 8V 8W VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY
540406992S 04/26/09 8W 8.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
540406992S 04/28/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
540406992S 04/30/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
540406992S 05/01/09 OFF 8W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
5404069084 02/24/09 17Z 12Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ
5404069084 02/25/09 8W/9Z 8W/4Z SUBMITTED WRONG TIME/DETECTIVE BUREAU/MONIKA LOPEZ
540401003J 03/22/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401003J 03/27/09 8W 12W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN
5404010162 03/26/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN
540401024S 04/05/09 8W 8B SILVIO' POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
5404010198 04/08/09 OFF 8W SMITH TIMEKEEPING ERROR/DETECTION BUREAu/JENNIFER MACIAS
540401007J 03/27/09 OFF 11W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
5404010212 OS/24/09 8W 13W POSTING ERROR/CRIMINAL JUSTICE BUREAu/MARY ANN MOREHOUSE
5404010212 05/25/09 8H 8H/8W POSTING ERROR/CRIMINAL JUSTICE BUREAu/MARY ANN MOREHOUSE
540401019P 03/22/09 8W 10.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/24/09 OFF 8W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/25/09 OFF 8W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/26/09 8W 10W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/27/09 8W 10W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401011N OS/26/09 16W 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL
540401087J 03/25/09 8W 9W SILVIO POSTING ERROR/PATROL BUREAUlHEATHER WHITMAN
540401087J 03/26/09 8W 11W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401073E 06/06/09 8W 16W SMITH EMPLOYEE ERRORl701 DETENTION BUREAu/DEPUTY JOHN ROBINSON
e
• • • I I I 1 I I
• I , I , 1 I I 1 t

peN# DATE FROM TO MAJOR REASON/BuREAu/PERSON


0 540401085G 06/18/09 ' 8W 16W SMITH POSTING ERROR/1200 DETENTION BUREAu/JEANETIE KNOLL
9 5404069565 03/22/09 8W 8A. SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
1 540401024S 03/24/09 OFF 2.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
2 540401'015H 01/04/09 8W 16W POSTING ERROR/HEALTH SERVICES BUREAu/JEANEn·E KNOLL
9 540628953V 05/24/09 6.5W/.5A 7.5W/.5A VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY

..
-
- --.-.-------.---..--.----------.--.-----
SHERIFF ADRJANGARrlA

-
- July 15, 2009

Vote of the Court: No Abstain



The Honorable Judge Ed Emmett Judge Emmett o 0


And Members of Commissioners Court Comm. Lee
Harris County Administration Building Comm. Garcia
Houston, Tx. 77002 Comm. Radack
Comm. Eversole
Honorable Members of Court:

-
The Sheriff s Office respectfully request authorization from Commissioners Court to work with
the Auditor's Office to correct the payroll records of the attached list of employees.

.. Your favorable consideration of the above request is sincerely appreciated.

Respectfully submitted, . .
.. 0-...:. '-t f0

- ADRIAN GARCIA,
HARRIS COUNTY

.. AG:cd

-
-
-
-.

..
:Jr

Presented to Commissioner's Court '

JUL 28 2009
- APPROVE G If-
Recorded Vol Page 107-/'

EXECUTIVE BUREAU
• 'I , I I I I I I
1 1
• I I I I I I I

.'

PCN#' DATE FROM TO MAJOR REASON/BUREAu/PERSON


2 540401061 K 04/04/09 8C/8S 8W POSTING ERROR/HEALTH SERVICES BUREAU/JEANETTE KNOLL
2 540401061 K 04/10/09 8X 8H POSTING ERROR/HEALTH SERVICES BUREAU/JEANETTE KNOLL
} 5404010146 03/10/09 9W/1S 9W/1J11S POSTING ERROR/SUPPORT SERVICES BUREAu/JENNIFER MACIAS
} 5404010146 03/11/09 9W/1S 9W/11/1S POSTING ERROR/SUPPORT SERVICES BUREAu/JENNIFER MACIAS
2 5404010T01 06/03/09 OFF 8W SMITH POSTING ERROR/701 DETENTION BUREAu/JENNIFER JOHNSON
5403058071 03/28/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES
5403058071 04/04/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES
5403058071 04/11/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAu/ADAM BRIONES
r 540628912V OS/26/09 8V 8W VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY
i 540406992S 04/26/09 8W 8.5W POSTING ERROR/CRIMINAL JUSTICE BUREAU/CAPTAIN RADABAUGH
i 540406992S 04/28/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
i 540406992S 04/30/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAU/CAPTAIN RADABAUGH
i 540406992S 05/01/09 OFF 8W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH
5404069084 02/24/09 17Z 12Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ
5404069084 02/25/09 8W/9Z 8W/4Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ
540401003J 03/22/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401003J 03/27/09 8W 12W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
5404010162 03/26/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401024S 04/05/09 8W 8B SILVIO' POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN
5404010198 04/08/09 OFF 8W SMITH TIMEKEEPING ERROR/DETECTION BUREAU/JENNIFER MACIAS
540401007J 03/27/09 OFF 11W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
5404010212 05/24/09 8W 13W POSTING ERROR/CRIMINAL JUSTICE BUREAu/MARY ANN MOREHOUSE
5404010212 OS/25/09 8H 8H/8W POSTING ERROR/CRIMINAL JUSTICE BUREAU/MARY ANN MOREHOUSE
540401019P 03/22/09 8W 10.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/24/09 OFF 8W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN
540401007V 03/25/09 OFF 8W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/26/09 8W 10W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401007V 03/27/09 8W 10W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401011N OS/26/09 16W 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL
540401087J 03/25/09 8W 9W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN
540401087J 03/26/09 8W 11W SILVIO POSTING ERROR/PATROL BUREAUIHEATHER WHITMAN
540401073E 06/06/09 8W 16W SMITH EMPLOYEE ERROR/701 DETENTION BUREAu/DEPUTY JOHN ROBINSON
• , 1
• I i 'i 'I "I 1 I I 1 I I 1 I I I

PCN# DATE IFROM '* TO MAJoR IREASON/BUREAu/PERSON


I 540401085G 06/18/09 8WJ 16W SMITH POSTING ERROR/1200 DETENTION BUREAUIJEANEITE KNOLL
I 5404069565 03/22/09 8W 8A SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
540401024S 03/24/09 OFF 2.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN
I
540401015H 01/04/09 8W 16W PO$TING ERROR/HEALTH SERVICES BUREAu/JEANETIE KNOLL
I 540628953V OS/24/09 6.5W/.5A 7.5W/.5A VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY
r vrL SERV ICE NO. 938 (;1002

-
i

- ••••.• -i- - .......- '...


j,


- 'Pebrnary 24, 201 0
COpy l
- TO: Heather Whitman, Administrative Assistant IT (EIN 112401)
Patrol Bureau - District V

SUBJECT: Disciplinary Action


(Demotion & 2-Day Temporary Suspension Without Pay) m
><
- REF: Rule 12 ("Disciplinary Actions and Appeals"), Harris County
Sheriff's ,Civil Service Regulations :r:
-CD
Violations of: Section 200, Policy #217, n. A. 1 & 2, and F.; Policy
#247, B.:2 c. 1 & 2, d. 4, & D. 2; Section 300, Poliey #302, n. B. 2, 8 & ----t
9, C. 1; Policy # 303, I. B., C. 7 & 1S, D. 4, 5,7,9 & 17; Polley #304 I.
A.; Policy ##305, I. C. & E., and Policy # 306 I. & D. B. 1, C., E., F. 1 & (j)
2, of the Harris County Sheriff's OffICe Policies (Efr. 11/19108).

You are hereby advised that your position as an Administrative AssiStant n with the
Harris County Sheriff's Department bas been reduced to that of Clerk and you will be
reassigned to the Homeland SecuritY Bureau, Reports Section. Additionally, you will
be suspended £rom duty without pay for two (2) workdays, beginning on February 25 t
J 2010, and ending on February 26, 2010. This disciplinary action derives its authority
from Rule 12 of the Hanis County Sheriff's Civil Service Regulations and is predicated
upon a violation of one or more of the provisions of Rule 12, Section 12.02 e'Improper
1 Conduct Defined"). You are further advised that in accordance with Section 200, Policy
#244, n., Subsection F. 5 ("Extra Employment''), Harris County Sheriffs Office Policies,
you are not eligible to work extra employment while on disciplinary suspension. The
1 reasons for this disciplinary action are set out below.

An administrative investigation (lAD Case #09-0330-1216) reveals that you repeatedly


1 "Violated Hanis County and Sheriff's Office policies, roles and regulations when you., (1)
failed to comply with your regularly scheduled duty hours, (2) failed to properly maintain
your personal timesheet record, (3) failed to submit supporting payroll documents for
your overtime/time off authorization, (4) falsified payroll entries, (5) failed to obey
orders, and (6) were negligent in your duties when you failed to maintain District payroll
records in an orderly manner.

- Shortly after assuming command of the Harris County Sheriff' 5 Office, District V
substation in September 2008, Captain J. D. Olessman observed that you did not arrive
for duty until 9:00 a.m. to 9:30 p.m., and was able to ascertain from District supervisors
this schedule had not been previously requested or approved. Captain Glessman met with '
you in October or November 2008, to inquire if there was a reason for your failure to
15:59 PATROL BUREAU CIVIL SERVICE
NO. 938

Personnel Order-Heather Whitman, Administrative Assistant,'ll


Page2of7

-

report for duty at a time that was more customary and·to infQp;n yon that your duty hours
were to be 8:00 a.m. to 4:00 p.m. While there was some improvement in the time you
reported for duty, it was short lived. In September and 2009, Captain
a
Glessman met with you to address repeated to failure to adhere to your assigned duty
hours. In a sworn statement you "There is no excuse for my habitual tardiness, it
is my own responsibility. I truly appreciate the opportunities I have been given to correct
this pattern and apologize if it bas come across as blatant disregard. Punctuality has
always been the 'chink in my armor' and in no was it meant as to disrespect my
superiors." See Exhibit 1.

- A review of your reported, posted and compensated time for January I, 2009, through
November 20, 2009, revealed numerous irregularities, viz. unapproved overtime and time

- off. See Exhibit 1. A subsequent audit of the payroll documents for District V failed to
uncover any Time and Attendance Records (timesheets) for you. 'When Captain
Glessman asked the whereabouts ,of yOW' timesheets, you advised him they were in your

- computer. It was not until you were ordered by Captain Glessman to produce the payroll
sheets and :;;uppcrting dOC\l111entation that you created and provided the required
docu.-neo.1s. See Exhibit 31. It is noted; you never submitted and received authorization
for any overtiIne and/or time oft:: While your intent is unclear, evidence clearly indicates
that you falsely documented and posted unauthori:z:ed overtime and time off into the
Hanis County payroll system.

- Further demonstration of your inability to complete and efficiently perfonn your required
duties are summarized and described in a Harris County Sheriffs Office Employee
Evaluation Form presented to you on December 23, 2009. See Exhibit 4.
J.
Your conduct as described hereinabove reflects a lack of judglllent and integrity. Your

1 failure to adhere to known policies regarding payroll procedures demonstrates a failure to


exercise due diligence in discharging your duties which is inconsistent with the Sheriff's
ex.pectations of its personnel. . You are hereby cautioned that any future

1 misconduct on your.part will res1,Jlt in the imposition offurther disciplinary action against
you, which may include the termination of your employment. .
The disciplinary action being imposed hereby is authorized UJ;lder provisions of the
1 Harris County Sheriff's Office Policies, effective November 19, 2008, and is further
predicated upon your violation of certain sections of the Harris County Sheriffs Office
Policies, and, where applicable, certain Bureau',roles and/or regulations, as specified
hereinbelow:

..
1 Consisting of 86 pages of documents created on December 9, 2009.
1
j

..Jl
15:59 PATROL BUREAU CIVIL SERVICE
NO. 938 [;1004

- Personnel Order -Heather Whitman, Administrative Assistant, II


Page 3 of7

- Section 200

Policy # 217
Personnel Practices

Overtime Policy

ll. A. Prior Approval:


Request for overtime will be made in advance of working overtime by the
person who is to perform the work.

-
1. Written - The employee shall complete a Hanis County Overtime
Form..

-
2. Verbal - A verbal request shall be honored when circumstances
necessitate; however, a written O"ertime Authorization Form shall
be completed and forwarded to the employee's :immediate
sUpervisor as soon as possible.

- F. Falsification of Records:

-
Employees who subnnts any false, fraudulent, or misleading employment
information, employee activity report, statement of facts, affidavit of any
type, or documentation supporting absence(s) or overtime shall be subject
to disciplinary action may include te,rmination.

Policy #247 Payroll Procedures

"B. 2. c. It is the responsibility of each employee ofthe Harris


County Sheriff's Office to ensure proper and accurate
records pertaining to the time and attendance records and
all supporting documentation.

(1) Each employee sign and date bislher own time


and attendance record and by so doing attests to the
accuracy of hislher time and attendance record.

(2). All documents associated with payroll shall be


properly completed and signed by the employee

,: when submitted.

Ji d. No individual shall falsify or cause to be falsified any time


record of any employee of the Sheriff's Office. To do so
J! shall be grounds for disciplinary action which may include
termination.
I

i
4. Overtime: Add the overtime to the regular hours worked and
shall total hours for the day. An approved overtime
fonn must be submitted prior to posting the time.

J:
l' ,I
- 012/25/2010 15:59 PATROL BUREAU CIVIL SERVICE
NO. 938 [;1005

-
1

Personnel Order -Heather Whitman, Administrative Assistant, n


Page 4 of? I
I
- D. Entry of Reported Hours Worked f:

- Section 300
2. The time recotd shall be filed as a permanent record.

EmPloyee Conduct
i

- Policy #302
n. B.
Professional Conduct Required
2. Completes a forty (40 hour work week, unless excused.
8. Complies with directions given by supervisor.
Maintains asatisfactory standard of performance necessary for the
- c.
9.
work assignment.

-
1. Avoid excessive absenteeism or tardiness particularly in
conjunction with regular scheduled off days.

-
Policy #303 Conduct P.-ohibited
I. B. Violation of Rules and Regulations:
Each employee ofthe Sheriffs Office shall be subject to:

.... 1. RepJ:inuIDd
2. Suspension
J 3. ,Reduction in rank. and/or
4. Dismissal from the Sherifrs Office and from service
j According to the nature of the offense, for violation of the roles and
I
I
regulations and the code sections appearing in the Department Policies. or
for any of the other rnles, regulations, general or special orders of the
J I
c.
Harris County Office.

The following acts or 'omissions are expressly prohibited conduct for


employees of the Harris County Sheriff's Office:
7. General Behavior
No employee shall act or behave privatel!, or in any official
J capacity in such a manner as to bring discredlt upon himlherself or
the Sheriff's Office.
i
1I 15. False Infonnation in Records
No employee shall kno\Ving or willingly make an official report,
based on false information or knowingly or willingly enter or cause


to be entered in any Sheriff's Office record or report, any
inaccurate, false or improper information.

l!j ;,
I,


- ,
'"--
02/25/20113 15:59 PATROL BllREAU CIVIL SERlJ ICE
NO. 938 (;1006

- Personnel Order -Heather Whitman, Administrative Assistant,n


PageS of7
i
i
I
I
D. Additional Acts ofhnproper Conduct: ",
·1
4. Inefficiency.

5. Insubordination:
No employee shall willfully disobey any order lavvfully issued by
supelV1sory personnel or acting authority, or be disrespectful,
mutinous, insolent, or direct abusive language toward any
supervisory personnel or acting authority. Flouting the authority of

.. any supervisory personnel or acting authority, by obvious


disrespect or by 'disputing orders, shall likewise be deemed.
insubordination.

- An order is defined as any request, instruction, andJor command,


either implied or directed towards a subordinate by any supervisor
or acting authority employed by the Sheriff's Office.
7. Neglect of duty.
9. Violation, or willful disregard, of any .lawful regulation or order

- 17.
made and given by a Sheriff's Office Supervisor.
Willful violation of any of the rules set forth in the Sheriff's Office
policies or any Bureau I Division written order or directive order.
Pollcy #304 Obedience To Orders
I. Policy:
To permit effective supervision, direction, and control, employees shall at all
times respond to and obey any just and lawful order from a supervisor or acting
authority.
A. Employees shall respond to and obey any just and lawful order from any
supervisor or other proper acting authority, whether or not the supervisor
J or acting authority is in the employee's chain of command.

j1 Policy #305
1. c.
Performance of Duty

Discharge of Dnties:
Each employee of the Harris County Sheriffs Office shall, at all times,
conduct himselfib.erself responsibly and display proper demeanor, in
11. j
order to bring credit upon himselflherself and the Sheriffs Office.

Each employee shall perform his/her duties' in accordance with the


1"
.•1
depa:rtment policies, job description, the policies and procedures
maintained by the bureau to which assigned, and all applicable Sheriff's


Office or Bqreau orders and memoranda.

Ii
lij:
.
,.,!

1 I
1
""'" .
-,
15:59 PATROL BUREAU CIVIL SERVICE
NO. 938

Personnel Order -Heather Whitman, Administrative Assistant,'IT


Page 7 of7 ]

- Effective immediately, this document will be placed in your pennanentpersonnel file. If


you desire, you have fifteen (15) days in which to file a written response. Your response
- will also be placed in your pennaneiit personnel fue. I,

- You may refer to the Harris County Sherifrs Department Civil Service Regulations, Rule
12, Section 12.04, concerning your right to appeal this action to the Sheriff within ten
(10) days.
I
r

- For Sheriff Adrian Garcia,


R. D. Silvio, Major
Patrol Bureau

:MDS/sdc
- Il &h
.'

Mottie Cato, Director


Human Resources Bureau

- REVIEWED:_--,.,ff-+l---4I-
Disci
-=__

- My signature affixed below ack:Uowledges that I have received and read this personnel

- order which sets out disciplinary action., and have been offered an opportunity to respond
to the allegations set out herein above.


I.
.i
-!
i \0
Date
""'"I,
cc: . John Dyess, Chief Adm,inistrative Officer
Human Resources perso e1 file
Bureau personnel fiJ
PEWS
15:59 PATROL BUREAU CIVIL SERVICE NO. 938

------_.....-
[;1001

-
Pa\rtll eUr&aI,l- -

"
j O\-\RMS
10 --
COpy
__ DISCIPLINARY ACTION
date .J. .2.5,../a - -
- Employee: Heather Whitman, Administrative Assistant, II (EIN 112401)

- Date: February 24,2010

-
OPENING STATEMENT:

The Bureau Major has been presented with documentation and/or evidence that you have
engaged in conduct which violates one or more. provisions of the Department Manual.
Having reviewed that documentation and/or evidence, it has been
decided that you should
be disciplined for your conduct. However, before imposing discipline, I att1,offering you
an opportunity to respond to the all,egations, which have been made against' and to .

- explain why I should not impose disciplinary sanctioDl5 against you at this time. To assist
you, I am now presenting you with a copy of the proposed personnel order which sets
forth the allegations against you, proposing that you be
""" Demoted & temporarily suspended for -L- days.

Please carefully review this proposed personnel order, and when you are ready to respond
to it, please do so.

- Do you understand everything that I have explained to you so far?

- ,ACKNOWLEDGEMENT

- I, Heather Whitman, Administrative Assistant, II , hereby acknowledge that


the opening statement which is set out above was' read to me and that I fully understand
it. My acknowJedgID,eni is being given voluntarily and with the understanding that it
_ me at I agree with the proposed personnel order or its.

E

ee'
.
Date

Date
o Copy presented to Employee

..... .
"
o
OFFICE GENERA(

- GREG ABBOTT

.. February 10, 2003

Ms. Melissa L. Barloco


Assistant County Attorney
Harris County

..
1019 Congress, 15th Roor
Houston, Texas 77002-1700

OR2003-0891

Dear Ms. Barloco:

You ask whether certain information is subject to required public disclosure under m
chapter 552 of the Government Code. Your request was assigned ID# 176953.
><
I
The Harris County Sheriffs Department (the "department") received two requests for
information on December 2, 2002 and December 4, 2002. Based upon your representation
-CD
that the first requestor has since clarified his request, and the department has supplied him ---I
with the requested information, we will consider the matter closed with regard to that
request. However, the second request remains and the requestor specifically seeks --..J
investigation reports or memorandum reports, including final outcomes, pertaining to
sustained internal affairs complaints from January 1,2001, to the present day [December 4,
2002]. You claim that the requested information is excepted from disclosure by
section 552.108, and that Exhibits B and D contain information that is also excepted under
section 552.101 ofthe Government Code. We have considered your arguments and reviewed
the representative sample of information submitted to this office. I

Initially, we note that the document submitted as Exhibit B (Case No. 9.9-0192-1028)
pertains to a complaint made in 1999 that led to a sustained internal affairs investigation that
occurred in 2000. As the request here at issue specifically seeks investigation reports or
memo reports pertaining to sustained internal affairs complaints from January 1,2001, to the

.. lWe assume that the "representative sample" of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open
records letter does not reach, and therefore does not authorize the withholding of, any other requested records

... to the extent that those records contain substantially different types of information than that submitted to this
office.

POST OPFICI! Box 12548. AUSTIN, TEXAS 78711·2548 TEL: (512)463-2100 WEB: WWW.OAG.STATE.TX.US
All 4 ..1 £""t.,.,,,, 0P/m.... i" E""I.,,, . !'ri"... .. Pqn-
- Ms. Melissa L. Barloco - Page 2

-
present day [December 4,2002], Exhibit B is not responsive to the request. Therefore, we
do not address whether Exhibit B is subject to public disclosure and the department is not
obligated to release it.

- We also note that the submitted information is subject to section 552.022 of the Government
Code. Section 552.022 provides that

- the foHowing categories of information are public information and not


excepted from required disclosure under this chapter unless they are expressly

- confidential under other law:

-
(1) a completed report, audit, evaluation, or investigation
made of, for, or by a governmental body, except as provided
by Section 552.108[.]

- Gov't Code § 552.022(a)(I). In this instance, the submitted information pertains to


completed investigations. Thus, this information must be released under section
552.022(a)( 1) unless it is expressly confidential under other law or excepted from disclosure
under section 552.108.

We next address your arguments under section 552.108 of the Government Code.
Section 552.108 of the Government Code provides, in part:

(a) Information held by a law enforcement agency or prosecutor that deals


with the detection, investigation, or prosecution ofcrime is excepted from the
requirements of Section 552.021 if:

(1) release of the information would interfere with the


detection, investigation, or prosecution of crime;

- (2) it is information that deals with the detection,


investigation, or prosecution of crime only in relation to an
investigation that did not result in conviction or deferred

- adjudication ....

Generally, a governmental body claiming section 552.108(a)(l) must reasonably explain,


if the information does not supply the explanation on its face, how and why the release of
the requested information would interfere with law enforcement. See Gov't Code
§§ 552.108(a)(l), (b)(l), .301 (e)(1)(a); see a[so Exparte Pruitt, 551 S.W.2d 706 (Tex. 1977).
Because you state that Exhibit D is representative of the types of internal affairs
investigations that resulted in pending criminal investigations, we find that release of the
requested information would presumptively interfere with law enforcement. Therefore,

- section 552.108(a)(l) is applicable to Exhibit D and the types of internal affairs


investigations that it represents.

-
-
-
Ms. Melissa L. Barloco - Page 3

- We note, however, that section 552.108 is inapplicabfe to basic information about an arrested
person, an arrest, or a crime. Gov't Code § 552.1 08(c). We believe such basic information
refers to the information held to be public in Houston Chronicle Publishing Co. v. City of
Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per
curiam, 536 S.W.2d 559 (Tex. 1976). Thus, with the exception of the basic front page
offense and arrest information, you may withhold Exhibit D and the types of investigations

- it represents from disclosure based on section 552.108(a)(l). We note that you have the
discretion to release all or part ofthe remaining information that is not otherwise confidential
by·law. Gov't Code § 552.007.

- You also claim that Exhibit C is excepted from disclosure by section 552.108(a)(2). A

-
governmental body claiming section 552.108(a)(2) must demonstrate that the requested
information relates to a criminal investigation that has concluded in a final result other than
a conviction or deferred adjudication. You state that Exhibit C represents the type of internal

-
affairs investigations that did not result in convictions or deferred adjudications. However,
after careful review, it does not appear to this office that the information submitted in Exhibit
C relates to a criminal investigation by the department. A review of Exhibit C indicates that

- it is the result of an administrative investigation that revealed a violation of policy. We


therefore conclude that the department has not demonstrated that the information submitted
in Exhibit C is excepted from disclosure under section 552.108. See Gov't Code

- § 552.108(a)(2), (b)(2); see also Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ.
App.--El Paso 1992, writ denied) (stating that statutory predecessor to section 552.108 was
not applicable where no criminal investigation or prosecution of police officer resulted from

- internal affairs investigation); Open Records Decision No. 350 (1982) (stating that statutory
predecessor was not applicable to internal affairs investigation file when no criminal charge
against police officer results from investigation). As the information in Exhibit C was not
created in conjunction with a criminal investigation, the department may not withhold
Exhibit C or any of the type of information that Exhibit C represents pursuant to
section 552.108.

- With regard to Exhibit C, we note that the submitted documents do contain information
protected by section 552.117(2) of the Government Code. Section 552.117(2) excepts from

-
disclosure the home addresses and telephone numbers, social security numbers, personal
pager numbers, and family member information of peace officers, regardless of whether the
officer elected c0nfidentiality under section 552:024 of the Government Code. See Gov't
Code § 552.117(2). See also Open Records Decision No. 670 (200 1) (providing that a

- governmental body may withhold the home address, home telephone number, personal
cellular phone number, personal pager number, social security number, and family member
information of a peace officer under section 552.117(2)). The department must withhold

- those portions of Exhibit C that reveal a peace officer's home address, home telephone
number, social security number, personal pager number, and that reveals whether the officer
has family members. The department must also withhold the officer's former home
addresses and telephone information. See Open Records Decision No. 622 (1994). We have
marked the information in Exhibit C that is subject to section 552.1 17(2) and must be
withheld.

-
- Ms. Melissa L. Barloco - Page 4

In summary, the department may withhold Exhibit D and the types of investigations it
represents from disclosure based on section 552.1 08(a)( I), with the exception of the basic
front page offense and arrest infoqnation. The department must release Exhibit C and the

- types of investigations it represents with the exception of the information we have marked
that is protected under section 552.117(2).

This letter ruling is limited to the particular records at issue in this request and limited to
the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.

- This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code § 552.301 (f). If the
governmental body wants to challenge this ruling, the governmental body must appeal by

-
filing suit in Travis County within 30 calendar days. [d. § 552.324(b). In order to get the full
benefit of such an appeal, the governmental body must file suit within 10 calendar days.
[d. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the
governmental body does not comply with it, then both the requestor and the attorney

- general have the right to file suit against the governmental body to enforce this ruling.
[d. § 552.321(a).

- If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the

-
statute, the attorney general expects that, within 10 calendar days of this ruling, the
governmental body will do one of the following three things: 1) release the public
records; 2) notify the requestor of the exact day, time, and place that copies of the records

.. will be provided or that the records can be inspected; or 3) notify the requestor of the
governmental body's intent to challenge this letter ruling in court. If the governmental body
fails to do one of these three things within 10 calendar days of this ruling, then the requestor
should report that failure to the attorney general's Open Government Hotline, toll free,

- at 877/673-6839. The requestor may also file a complaint with the district or county
attorney. [d. § 552.3215(e).

.. If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can appeal that decision by suing the governmental
body. ld. § 552.32 I(a); Texas Department ofPublic Safety v. Gilbreath, 842 S.W.2d 408,
411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for
costs and charges to the requestor. If records are released in compliance with this ruling, be
sure that all charges for the information are at or below the legal amounts. Questions or
complaints about over-eharging must be directed to Hadassah Schloss at the Texas Building
and Procurement Corrunission at 512/475-2497.

-
- Ms. Melissa L. Barloco - Page 5

If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. We note that a third party may challenge
this ruling by filing suit seeking t9 withhold information from a requestor. Gov't Code
§ 552.325. Although there is no statutory deadline for contacting us, the attorney general
prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Heather Pendleton Ross


Assistant Attorney General
... Open Records Division

HPR/sdk

Ref: ID# 176953

- Enc: Submitted documents

- c: Mr. Jeremy Rogalski


Reporter
KHOD-TV 11
1945 Allen Parkway
Houston, Texas 77019
(w/o enclosures)

...
-
...

...
...

- <»
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

- March 9, 2010
EXHIBIT 8
..
Mr. David M. Swope

.. Assistant County Attorney


Harris County District Attorney's Office
1019 Congress, 15th Floor

-
Houston, Texas 77002-1700

0R2010-03375

Dear Mr. Swope:

.. You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was
assigned ID# 372732 (C.A. File No. 09GEN2458).

The Harris County Sheriff's Office (the "sheriff') received a request for information
contained in any media that comprises the administrative investigation that resulted in the
disciplining of the requestor. You claim that the submitted information is excepted from

- disclosure under section 552.108 of the Government Code. We have considered the
exception you claim and reviewed the submitted. infonnation. We have also considered
comments submitted by an attorney representing the requestor. See Gov't Code § 552.304
(interested party may submit written comments regarding availability of requested
information).

.. Initially, we address the requestor's attorney's argument that the sheriff failed to meet its
obligations under section 552.301 of the Government Code. This section prescribes

-
procedures that a governmental body must follow in asking this office to decide whether
requested information is excepted from public disclosure. Section 552.301(b) requires the
governmental body to ask for the attorney general's decision and state the exceptions to

-
POST OFFICE Box 12548, AUSTiN, TEXAS 78711·2548 TEL:(512)463-2100 WWW.OAG.STATE.TX.US
AI1 EquAl EmpJDymrnt O"Drltlni'J EmplD",· P,illlrtl till Rrtydetl P4,er


- Mr. David M. Swope - Page 2

disclosure that it claims not later than the tenth business day after the date of its receipt of
the written request for information. See Gov't Code § 552.301(b). Section 552.301(d)
requires the governmental body to provide the requestor with a written statement that the
governmental body wishes to withhold the requested information and a copy of the
governmental body's written communication to the attorney general asking for a decision not
later than the tenth business day after the date of its receipt of the written request for
information. See Gov't Code § 552.301(d).

The sheriff received the req uest for infonnation on December 18, 2009. I The sheriff was
required to request a decision from this office no later than January 6, 2010. The sheriffs
briefrequesting a decision was submitted to and received by this office on January 6, 2010.
Accordingly, we find the sheriff complied with section 552.301(b). Additionally, we note
the sheii:ffs brief contains a that the requestor was copied on the brief on that date.

..
Whether the requestor was actually provided with a copy of the sheriff's brief on
January 6, 2010 is a question of fact. This office is unable to resolve disputes of fact in the
open records ruling process. Accordingly, we must rely upon the facts alleged to us by
governmental body requesting our opinion, or upon those facts that are discemable from the
documents submitted for our inspection. See Open Records Decision No. 522 at 4 (1990).
. The sheriff's brief contains a notation that the requestor was copied on its written statement
seeking a decision from this office on January 6, 2010. Therefore, we conclude that the
sheriffcomplied with the procedural requirements of section 552.301 (d) and will address its
arguments against disclosure.

Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement


agency or prosecutor that deals with the detection, investigation, or prosecution of

-
crime ... if: (2) it is information that deals with the detection, investigation, or prosecution
of crime only in relation to an investigation that did not result in conviction or deferred
adjudication." Gov't Code § 552.108(a)(2). A governmental body claiming
section 552.] 08(a)(2) must demonstrate that the requested information relates to a criminal
investigation that has concluded in a final result other than conviction or deferred
adjudication. See id §§ 552.108(a)(2), J01(e)(l)(A) (governmental body must provide
comments explaining why exceptions raised should apply to information requested); Ex
parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Section 552.1 08(a)(2) is not applicable to records
ofan internal affairs investigation that is purely administrative in nature and did not involve
the investigation or prosecution of crime. See City ofFort Worthv. Cornyn, 86 S.WJd 320
(Tex. App.-Austin 2002, no pet.) (section 552.108 not applicable to information police
department holds as employer); Morales v. Ellen, 840 S. W.2d 519, 525-26 (Tex. Civ.
App.-EI Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable
to internal investigation that did not result in criminal investigation or prosecution). Upon
review, the submitted information reflects that it was generated as part of an internal

..
Irhe sheriff states December 24 and 25, 2009 and January 1,2010 were Harris County holidays .

..
..
-
- Mr. David M. Swope - Page 3

adnlinistra,tive investigation conducted by the sheriff. You do not provide any arguments
explaining how the intemaUnvestigation resulted in a criminal investigation or prosectltion.
Accordingly, the sheriff may not withhold any portion of the submitted under
section 552.1 08(a)(2) of the Government Code. '

Section 552.10 I ofthe Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial decision" and
encompasses infonnation made confidential by statute. 2 Gov't Code § 552.1 0 1. This section
encompasses laws that make criminal history record information ("CHRl") confidential.
CHRI generated by the National Crime Information Center or by the Texas Crime
Information Center is confidential under federal and state law. Title 28, part 20 of the Code
Regu)ations governs the release of CHRI that states obtain from the federal
government or other states. Open Records Decision No: 565 at 7 (1990).' -The federal
regulations allow each state to follow its individual law with respect to CHRl it generates.
Id. Section 411.083 of the Government Code deems confidential CHRl the Department of
Public Safety ("DPS") maintains, except DPS may disseminate this information as provided

.. in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.08 3.
Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI;
however, a criminal j ustice agency may not release CHRI except to another criminal justice

- agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in
chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another
criminal justice agency; however, those entities may not release CHRl except as provided

.. by chapter 4 I 1. See generally id. §§ 411.090- .127. Similarly, any CHRl obtained from DPS
or any other criminal justice agency must be withheld under section 552.101 of the
Government Code in conjunction with Government Code chapter411, subchapter F. See id.
§ 411.082(2)(B) (term CHRl does not include driving record information). Accordingly, the
sheriff must withhold the CHRl' we have marked under section 552.101 of the Government
Code conjunction with chapter 411 of the Government Code and federal law.

Section 552.101 also encompasses the doctrine of common-law privacy, which protects
information if (1) the information contains highly intimate or embarrassing facts, the
publication of which would be highly objectionable to a reasonable person, and (2) 'the
infonnation is not oflegitimate concern to the public. Indus. Found. v. Tex. Indus. Accident
Ed., 540 S.W.2d 668,685 (Tex. 1976). To demonstrate the applicability of common-law
privacy, both prongs of this test must be demonstrated. Id. at 681-82. The type of
infonnation considered intimate and embarrassing by the Texas Supreme Court in Industrial
Foundation included infonnation relating to sexual assault, pregnancy, mental or physical
abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders,
attempted suicide, and injuries to sexual organs. Id. at 683. Additionally, this office has

2The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987), 470 (1987).
- Mr. David M. Swope - Page 4

- found that personal financial information not relating to the financial transaction between an
individual and a governmental body is generally excepted from required public disclosure

- undercommon-1awprivacy. See Open Records DecisionNos. 600 (1992), 545 (1990). We


have marked information that must be withheld under section 552.101 in conjunction with
common-law privacy.

- Section 552.130 ofthe Government Code excepts from disclosure information relating to a
motor vehicle operator's or driver's license or permit or a motor vehicle title or registration
... issued by an agency of this state. See Gov't Code § 552.130(a)(1)-(2). Accordingly, the
sheriff must withhold the Texas driver's license and motor vehicle information we have
marked under section 552.130 of the Government Code. 3
... In summarj, the sheriff must withhold the CHRl we have marked under section 552.101 of
the Government Code in conjunction with chapter 411 ofthe Government Code and federal
law. The sheriff must also withhold the information we have marked under section 552.101
of the Government Code in conjunction with common-law privacy. The sheriff must

- withhold the information we have marked under section 552.130.· The remaining
information must be released to this requestor. 4S

This letter ruling is limited to the particular information at issue in this request and limited
- to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other information or any other circumstances.

- This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For more information concerning those rights and

.. responsibilities, please visit our website at htt]://www.oag.state.tx.us/open/index orI.php,


or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public

-
-
3 We note this office recentiy issued Open Records Decision No. 684 (2009), a previousdetennination
to all governmental bodies authorizing them to withhold ten categories of information, includ ing Texas driver's
license and license plate numbers under section 552.130 of the Government Code, without the necessity of
requesting an attorney general decision.

- 4 We note the information being released contains confidential information to which the requestor has
a right ofaccess. See Gov't Code § 552.023 (person's authorized representati ve has spec ial right ofaccess to
information that relates to the person and that is protected from disclosure by laws intended to protect person's
privacy interests). If the sheriff receives another request for this particular information from a different
requestor, then the sheriff should again seek a decision from this office.

sThe remaining information includes full and partial social security numbers not belong'ing to the
requestor. Section 552. 147(b) of the Government Code authorizes a governmental body to redact a living
person's social security number from public release without the necessity of requesting a decision from this
office under the Act.

...
-
Mr. David M. Swope - Page 5

infonnation under the Act must be directed to the Cost Rules Administrator of the Office of
the Attorney General, toll free at (8,88) 672-6787.

- Sincerely,


....

- Assistant Attorney General


Open Records Division

LJH/jb.

Ref: ID# 372732


....
Ene. Submitted documents

- c: Requestor
(w/o enclosures)

-
-

-
....

-
....
-
- MUSICK & MUSICK, LLP A ITORNEYS AT LAW

- 397N.SAMHoUSTONPARKWAYE.,SUITE325

JOANNE M. MUSICK
JOANNE@MuSICKUWOFFICE.COM
Board Conincd Juvenile Law
HOUSTON,TExAS77060· • TFJ.F.PHONE: (281)443-7747 • FAx: (832)448-1147

AMANDA G. DOWNING
WOFFlCF..COM

Texu Board or Leaal Specialization JOHN P. DENHOLM


JOHN@MusrCKLAWOFHCE.COM
EARL D. MUSICK
EARl .@MuslCKLAWOH1CE.COM
EXHIBIT 9
- April 1,2010

- Honorable Greg Abbott


Attorney General of Texas
Supreme Court Building
via facsimile to (512) 463-2092

- P.O. Box 12548


Austin, Texas 78711-2548

ATTENTION: Mr. James Coggeshall I Open Records Committee

RE: Formal Complaint Regarding Harris County Sheriff Adrian Garcia Violating the
Texas Public Information Act.

Dear General Abbott,

- This letter is a formal complaint that the Harris County Sheriff, the Honorable Adrian
Garcia, is refusing to comply with the Texas Public Information Act (TPIA).

I represent former Deputy Marcus Staudt, who served the Sheriffs Office with a request
for public information on December 18, 2009. This request was personally served on Major
Robert Van Pelt, a licensed attorney in the State of Texas. The request was for the administrative
investigation that resulted in the discipline of a public employee, to wit: Marcus Staudt. ('Exhibit
A.") It is well settled law that such information is public information.

When the records had not been released by January 6, 2010, I informed your office of the
violation of the TPIA. The Sheriff and the Harris County Attorney were both copied. (Exhibit B)

- Subsequently, on January 7, 2010, Sheriff Garcia, through Ass't County Attorney David Swope
requested an Attorney General Opinion (Exhibit C).

- On January 12, 2010, I submitted public comments regarding this request, and why I
believed it was clearly public information. On February 15, 2010, I amplified my comments with
an additional letter.

- On March 9, 2010, your office issued a ruling (Exhibit D) that the file was public
information, subject to certain redactions. Despite being informed he may not withhold the

- information, Sheriff Garcia continues to do so.

- www.MusickLawOffice.com
-
- Unfortunately this appears to be a pattern with Sheriff Garcia. In a 2009 request for an
administrative file, the Sheriff withheld audio files. After I made a formal complaint to the Harris
County Attorney, the Sheriffs Office again denied the existence of the files. Accordingly, the
County Attorney made a good faith my complaint was unfounded. I then filed a

- complaint with your offIce. After a few inquiries by Assistant Attorney General Lance Kutnick,
the Sheriff suddenly produced the forty-four (44) audio files; files he had repeatedly denied
existed. (See letter sent via e-mail from Assistant Attorney General Lance Kutnick, erroneously

- dated September 23, 2009 due to computer program - Exhibit E)

I have an outstanding request (Exhibit F) for an administrative file of a public employee

.. that had been disciplined, to wit: Deputy Pete Galvan. This request was sent to the Sheriff via
certified mail and was signed for on March 5, 2010. The Sheriff had until March 19, 2010 to
either release the information or request and opinion from your office. As oftoday's date, April
I, 20 I0, the Sheriff has done neither.

I am requesting your office enforce the Texas Public Information Act in the requests for

-
the Staudt and Galvan files.

Please advise how my office may assist you in the future.

Sincerely,
....

John P. Denholm

Copy: The'Honorable Adrian Garcia

- Sheriff of Harris County, Texas


Mr. Marcus Staudt

-
- Page 20/2
Request/or Tex. A.G. en/orcemento/TP1A
related to Marcus Staudt request
01/08/2010 09:04 HARRIS COUNTY SHERIFF OFFICE 4 98324481147 NO. 01213 [;1003
.L,L ....... .1.4""'''''''''' . . VA .1.A,J....)...I .1...1..1\"" .I."",.a.UVJ.UU'-' 1 V.l.l

- December 18. 2009

-
- SheriffAdrian Garcia

c/o MajDr Robert Van Pelt

Harris County Sheriff's Office

1200 Baker Street


Exhibit A
Houston. Texas 77002

- )

Re: Request for RecorcWInformation Made Pursuant to Texas Public Information Act
Dear Sir or Madam:

Pursuant to ·the Texas Public InjOt'mation Act (codified at TEX. OOVT CODE ANN. Chap. 552),
I respectfully request access to/Copies ofthe following record(s) maintained by your agency:

ot
A complete copy any Information contained In any media that comprISes the
administrative invutigatlon in IAD/OIG case # that resulted In
,. the dlsclpUnlng of.Marcu8'Staudt.

.. Please note that as the subject of the investigation, I have a special right to confidential
information under Tex. Gov't Code § 552.023

- A goVermnentai body has a good faith duty to relate B request to the infonnation it holds. Open
Records Decision No. 561 (1990). A hyper-tOchnical reading ofa request for information does not
effeotuate the ovetall legislative intent ofthe Act. Open Records Decision No. 44SS (2000). .

.. 1 am ofthe opinion that this information constitutes a public record. If you agree. please advise of
the reptodueti.on cost for all such information. .

II1II
Thank you for your prompt' attention to this request.

Sineetely yours,
II1II

- Marcus Staudt

-
.. http://maU.google.comlmail/?ui''"'2&ik><=84cc4l66eS8Mew-att&th=12Sa2fO155331986&8.... 12/1 ai2009
-
- MUSICK & MUSICK, LLP ATTORNEYS AT LAW
N. SII"" HnusrON PII1U<WI\Y E., Sun., 325 • HOUSTON. TEXAS 77060 • TELF.PHONF.: (281) 443- 7747 • FAx: (832) 448-1147

JOANNE M. MUSICK AMANDA G. DOWNING


.. c.'OM

-
'" \L\ N DA@MUSICKJ.1I"'OFFICI .. CUM
Board CCl1ificl! JlI'.. cnilc Law
T£.u.l Boud ofLeaal Specilli!IlliDI\ JOHN P. DENHOLM

EARL D. MUS1CK
J'.M.L.@MUSICYJ.A\I'OI'FI(.I-..cml

January 7,2010

- Honorable Greg Abbott


Attorney General of Texas
Supreme Court Building
Exhibit B

- P.O. Box 12548


Austin, Texas 78711-2548

- Attention: Open Records Committee

- RE: Violation of Texas Public Information Act by Harris County Sheriff Adrian Garcia

- Dear General Abbott,

I represent former Deputy Marcus Staudt who was terminated by the Harris County
Sheriffon December 18, 2009. At the time of his termination, Ml'. Staudt personally served
Major Robert Van Pelt, a licensed attorney in the State of Texas, with a Public Information Act
request for a copy of the Administrative Investigation that resulted in his termination.

Major Van Pelt accepted the request.

-
Your office has previously ruled that an administrative investigation that resulted in the
discipline of a public employee is public information. Despite that, as of January 6,20 10, the
tenth business day after the request, the Harris County Sheriff has refused to release the
information. Also, as of January 7,2010, the Sheriff has neither provided a written statement to
the requestor, Mr. Staudt, nor a copy of the Sheriffs letter to your office requesting an opinion.

Previously, your office has had to intercede on my behalf to force the Sheriff to release
public information the Sheriff previously denied existed. My subsequent complaint with the
Harris County Attorney was investigated and cla<;sified as unfounded. Yet when Assistant
Attorney General Lance Kutnick intervened, the "non-existent" records were produced within a

- day.

-
www.MusickLawOffice.com
-
-
- Enclosed is a copy of my letter dated January 7, 2010 to the Harris County Sheriff
pointing out his latest violation of the Public information Act. At this time, I am merely notifying

- your office of the issue and will advise further if the records are not released in the near future.

- Respectfully submitted,

-
- John P. Denholm

-
- Enclosure
Copy: Honorable Adrian Garcia, Sheriff of Harris County
Honorable Vince Ryan, Harris Co. Attorney

-
-
...

-
-
...
...
-
- 01/08/2010
QI-07-tGtD
09:04

HARRIS COUNTY

SHERIFF OFFICE
Att'. Offi,'
98324481147
T·587 P.DOZ
NO. 003
F-736
[;1008

Exhibi1 C
The Office ofVlnce Ryan
County Attorney

- January 7,2010

rable Greg Abbott nQ Cettified Maill Retu.rn Receipt ht1Ul!Sted


Generai of Texas And VIa Fax to 512-463-2092 .
e Olurt Building

Open Records CQmminee

Re: Public Inf(mnation Request by Marcus Sta.udt; a complete cot'}' of any


information 'contained in any media that comprises the admini.strative
. investigation in lAD/ora case # that resulted in the disciplining of
Marcus Staudt.·
C. A. File No. lJ9GEN2458

.. De

PlelSe find attaohed a corrected memorandum for the a'bove-IcfereJlced Public lnfonnation
equcst. We inadvl:lwntl}' put the name in the previously submitted m¢morandum..

- Please provide us with your opinion regarding this matter:

Yours very tn11y.

-
-

-
1019 .ongress, 15th Floor. Houston, Texas 77002 • Phone: 713-755-5101 • Fax: 713-755-8924
- 01/08/2010 09:04 HARRIS COUNTY SHERIFF OFFICE
01-0r-2010 D4:05PU FRQW-Harrl, OfficI
9832448114?
T-587 p.ooa
NO. 003
F-r36
[;1009

- MEMORANJWM BRIEF

The Harris County Sheriff"s Offlce received the enclosed written request for
ormation on November 30, 2009. See Exhibit "A. The requestor. has asked for
omplete copy of the infonnmon contained in any media that comprises the
inis'tra:tive invemgati..JU in IAD/OIG case # t1uu resulted in the disciplining of

- cus Staudt of the Harris County Sheriff's OfflCe. The reconh for which we are
eckiDg em exception have nOl been released as the wonnation requested appears to fall
'thin an exception to the Public Information Act, including TEX. OoV'T CODE ANN.

- '§552.l08.. (Vemon 2004) The responsive documents for which we are seeking
ception are enclosed m;n-k.ed Exhibit "B." There are no other documents responSive to
he requestor"s request,

- Section 552.108 of the Government Code e1(cepts from disclosure lI[i]nformation


eld by a law enforcement agency or prosecutor that deals with the detection.
nvestiption, or prosecution ofcrime ... if ... it is information that deals with the
election. investigation, C't prosecution of crime only in relation to an investigation that
'd not result in conviction or deferredadjudicationf.l" Gov't Code § 552.108(a)(2). We

- rtate that thf information is related to fI closed case that concluded in a result other than a
onviction or a deferred 8.djudication. Based on this representution. we believe that
etlon 552.1 08(a)(2) is generally applicable to the infonnation.

. For the above stated reasOI18 the requested records should be excepted from
'seJosure primatily §§ SS2.108(a).

-
-
-
6)
- ATTORNEY GENERAL OF TEXAS·
,GREG ABBOTT

-
Exhibit 0

- March 9, 2010

-
- Mr, David M. Swope
Assistant County Attorney
Harris County District Attorney's Office
1019 Congress, 15th Floor
Houston, Texas 77002-1700

- 0R2010-03375

- Dear Mr. Swope:

You ask whether certain infonnation is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 ofthe Government Code. Your request was

- assigned ID# 372732 (C.A. File No. 09GEN2458).

The Harris County Sheriff's Office (the "sheriff") received a request for infonnation
contained in any media that comprises the administrative investigation that resulted in the
disciplining of the requestor. You claim that the submitted infonnation is excepted from
disclosure under section 552.108 of the Government Code. We have considered the
exception you claim and reviewed the submitted information. We have also considered
comments submitted by an attorney representing the requestor. See Gov't Code § 552.304
(interested party may submit written comments regarding availability of requested
information).

Initially, we address the requestor's attorney's argument that the sheriff failed to meet its
obligations under section 552.301 of the Government Code. This section prescribes
procedures that a governmental body must follow in asking this office to decide whether
requested infonnation is excepted from public disclosure. Section 552.301(b) requires the
governmental body to ask for the attorney general's decision and state the exceptions to

POST 0 HleE Box 1254 8, AUSTIN, TEXAS 78711·2548 T£L'(512)463·2100 WWW.OAc.SJAn.Tx.us


A. E,•• I

£""1"",,.,

O}pOt'HRi" £.,10,,,. 1"1..... 11 R.."I.rI 1'.,,.
-
Mr. David M. Swope - Page 2
-
- disclosure that it claims not later than the tenth business day after the date of its receipt of
the written request for informat,ion. See Gov't Code § 552.301(b). Section 552.301(d)

- requires the governmental body to provide the requestor with a written statement that the
governmental body wishes to withhold the requested information and a copy of the
governmental body's written communication to the attorney general asking for adecision not

- later than the tenth business day after the date of its receipt of the written request for
information. See Gov't Code § 552.301(d).

- The sheriff received the request for infonnation on December 18, 2009. I The sheriff was
require-d to request a decision from this office no later than January 6,2010. The sheriffs
brief requesting a decision was submitted to and received by this office on January 6, 2010.
Accordingly, we find the sheriff complied with section 552.301 (b). Additionally, we note
the sheriffs briefcontains a notation that the requestor was copied on the briefon that d-ate.
Whether the requestor was actually provided with a copy of the sheriffs brief on
.. January 6, 2010 is a question of fact. This office is unable to resolve disputes offact in the
open records ruling process. Accordingly I we must rely upon the facts alleged to us by
governmental body requesting our opinion, or upon those facts that are discemable from the

- documents submitted for our inspection. See Open Records Decision No. 522 at 4 (1990).
. The sheriff's briefcontains a notation that the requestor was copied on its written statement
seeking a decision from this office on January 6. 2010. Therefore, we conclude that the

- sheriffcomplied with the procedural requirements ofsection 552.301 (d) and will address its
arguments against disclosure.

- Section 552.1 08(a)(2) excepts from disclosure "[i]nformation held by a law enforcement
agency or prosecutor that deals with the detection, investigation, or prosecution of
crime ... if: (2) it is information that deals with the detection. investigation. or prosecution

- of crime only in relation to an investigation that did not result in conviction or defened
adjudication." Gov't Code § 552.108(a)(2). A governmental body claiming
section 552.1 08(a)(2) must demonstrate that the requested information relates to a criminal

-
investigation that has concluded in a final result other than conviction or deferred
adjudication. See id. §§ 552.108(a)(2)• .3Ol(e)(l)(A) (governmental body must provide
comments explaining why exceptions raised should apply to information requested); Ex

- parte Pruitt. 551 S.W.2d 706 (Tex. 1977). Section 552.1 08(a)(2) is notapplicable to records
ofan internal affairs investigation that is purely administrative in nature and did not involve
the investigation or prosecution ofcrime. See City ofFort Worth v. Cornyn, 86 S.W.3d 320

- (Tex. App.-Austin 2002. no pet.) (section 552.108 not applicable to infonnation police
department holds as employer); Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ.
App.-El Paso 1992. writ denied) (statutory predecessor to section 552.108 not applicable
to internal investigation that did not result in criminal investigation or prosecution). Upon
review, the submitted information reflects that it was generated as part of an internal

'The sheriff states December 24 and 25, 2009 and January 1,2010 were Harris County holidays.
Mr. David M, Swope· Page 3
-
- adITiinistra.tive investigation conducted by the sheriff. You do not provide any arguments
explaining how the resulted in a criminal investigation or prosecution.

- Accordingly, the sheriff may not withhold any portion of the submitted 'under
section 552. I08(a)(2) of the Government Code..

Section 552.101 of the Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial decision" and
encompasses information made confidential by statute. 2 Gov 't Code § 552.1 01. This section

- encompasses laws that make criminal history record information ("CHRl") confidential.
CHRI generated by the National Crime Infonnadon Center or by the Texas Crime
lnfonnation Center is confidential under federal and state law. Title 28, part 20 of the Code

- o(Fet;l.e:ral governs the release of CHRI that states obtain from the federal
government or other states. Open Records Decision No:' 565 at 7 -The federal
regulations allow each state to follow its individual law with respect to CHRl it generates.
[d. Section 411.083 ofthe Government Code deems confidential CHRI the Department of
Public Safety ("DPS") maintains, except DPS may disseminate this information as provided
in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083.

- Sections 41 I.083(b)(l) and 4 I1.089(a) authorize a criminal justice agency to obtain CHRJ;
however, a criminal justice agency may not release CHRl except to another criminal justice
agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in

- chapter 411 of the Goverrunent Code are entitled to obtain CHRl from DPS or another
criminaljustice agency; however, those entities may not release CHRl except as prOVided
by chapter 41 1. See generally id. §§ 4I1.090· .127. Similarly, any CHRl obtained from DPS

- or any other criminal justice agency must be withheld under section SS2.10 1 of the
Government Code in conjunction with Govermnent Code chapter 411, subchapter F. See id.
§ 411.082(2)(B) (term CHRI does not include driving record information). Accordingly, the

- sheriff must withhold the CHRl we have marked under section 552.101 ofthe Government
Code in conjunction with chapter 411 of the Government Code and federal law.

Section 552.101 also encompasses the doctrine of common-law privacy, which protects
information if (1) the infonnation contains highly intimate or embarrassing facts, the
publication of which would be highly objectionable to a reasonable person, and (2) the

-
infonnation is not of legitimate concern to the public. Indus. Found. Y. Tex. Indus. Accident
Bd, 540 S.W.2d 668, 685 (Tex. ]976), To demonstrate the applicability of common-law
privacy both prongs of this test must be demonstrated. Id. at 681·82. The type of
l

-
information considered intimate and embarrassing by the Texas Supreme Court in industrial
Foundation included infonnation relating to sexual assault, pregnancy, mental or physical
abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders,

- attempted suicide, and injuries to sexual organs. Id. at 683. Additionally, this office has

.. 2The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Recol'ds Decision Nos. 481 (1987), 480
(1987),470 (1987),

..
- Mr. David M. Swope - Page 4
-
- found that personal financial information not relating to the financial transaction between an
individual and a governmental body is generally excepted from required public disclosure

- under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). We
have marked information that must be withheld under section 552.101 in conjunction with
common-law privacy.

- Section 552.130 ofthe Government Code excepts from disclosure infonnation relating to a
motor vehicle operator's or driver's license or pennit or a motor vehicle title or registration
issued by an agency of this state. See Gov't Code § 552.130(a)(1 )-(2). Accordingly, the
sheriff must withhold the Texas driver's license and motor vehicle infonnation we have
marked under section 552.130 of the Government Code. J

In summary, the shcriffmust withhold the CHRl we have marked under section 552.101 of
the Government Code in conjunction with chapter 411 ofthe Govemment Code and federal

.. law. The sheriff must also withhold the information we have marked under section 552.101
of the Government Code in conjunction with common-law privacy. The sheriff must
withhold the infonnation we have marked under section 552.] 30. The remaining

- information must be released to this requestor. 4'

This letter ruling is limited to the particular information at issue in this request and limited

.. to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other infonnation or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and ofthe requestor. For more information concerning those rights and
responsibilities, please visit our website at http://www.oag.s1ate.tx.us/open/index orl.php,

.. or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public

- J We note this office recently issued Open Records Decision No. 684 (2009), a previous determination
to all governmental bodies authorizing them to withhold ten categories ofinformation, includ log Texas driver's

- license and license plate numbers under section 552.130 of the Government Code, without the necessity of
requesting an attorney general decision.

4We note the in fonnation being released contains confidential infonnation to which the requestor has
... a right ofaccess. See Gov't Code § 552.023 (person's authorized representative has special right ofaccess to
infonnation that relates to the person and that is protected from disclosure by laws intended to protect person's
privacy interests), If the sheriff receives another request for this particular information from a different

.. requestor, then the sheriffshould again seek a decision from this office.

'The remaining infonnation includes full and partial social security numbers not beJong'ing to the
requestor. Section 552, 147(b) of the Government Code authorizes a governmental body to redact a living

- person '5 social security number from public release without the necessity of requesting a decision from this
office under the Act.

...
- Mr. David M. Swope - Page 5

- information under the Act must be directed to the Cost Rules Administrator of the Office of
the Attorney General, toll free at (888) 672-6787.

-
-
..

Assistant Attorney General
Open Records Division

LJHljb

Ref: ID# 372732

- Enc. Submitted documents

c: Requestor
(w/o enclosures)

-
..
..

..

-
..
..
- ,
-
- ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

Criminal Prosecutions Division


Office: (512) 463-3038
Fax: (512) 474-4570

September 23, 2009

Re: John Denholm PIA complaint

Mr. Douglas Ray


Harris County Attorney Office
1019 Congress, 1Sth Floor

- Houston, TX 77002

Mr. Ray:

- I have probably concluded reviewing most matters related to Mr. Denholm's complaint. At
this point in time, there is not enough evidence to move forward with further legal action.
That being said, I have a few concerns: I) Various requested items have simply gone missing.
Procedures should be in place to store and secure all governmental items and documents; 2)
Some requested items (audio CDs) were claimed to have not existed or were missing but were
apparently found after this office's inquiry into the matter. It would lead one to conclude
somebody finally got serious about looking for the material after the AG inquired about it; and
3) Mr. Denholm claims he has not seen the required PIA notice upon a visit to the Sheriffs
Office. This office has made no independent determination of whether or not that is the case.
The Attorney General's Office would just remind the Harris County SheriffDepartment of this
obligation.

I would be glad to discuss any of this if you want. Again, thanks for your cooperation and
assistance in working with me on this matter.

- Sincerely,

- Lance A. Kutnick
Assistant Attorney General

- cc: John Denholm via email

- POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548


WEB: WMV.OAG.STATE.TX.us
fance. kutnick@oag.state.tx.us

-
"

C'""',
'\-'" .," ,

MUSICK & MUSICK, LLP ATTORNEYS AT LAW


• HOUSTON,TExAs77060 : TEi'..EPHONE: {281) 443-7747 • FAX: (832)448-1147
......
JoANNE M. MUSICK AMANDA G. DOWNING
JOANNE@MuSICKLAWOFFICE.COM AMANDA@MuslCKLAWOFFlCE.COM
Baud Certified luvenile Law
T..., Board ofLoaal Speci.liz.tioo JOHN P. DENHOLM,

EARL D. MUSICK
EARL@MUSICKLAWOFFICE.COM

March 1,2010

""" The Honorable Adrian Garcia CM/RRR 7009-2820-0000-7740-5722


Sheriff of Harris County, Texas

- 1200 Baker St.


Houston, Texas 77002

- RE: Texas Public Information Act Request - Pete Galvan

Dear Sheriff Garcia,

.... Pursuant to the Texas Public Information Act (codified at TEX. GOV'T CODE ANN. Chap.
552), I respectfully request access to/copies of the following record(s) maintained by your
agency:
"""
Any information as defined by TEX. GOV'T CODE ANN. § 552.002(a) stored

- in any media as defined by TEX. GOV'T CODE ANN. § 552.002(b) regarding


the administrative investigation that resulted In the discipline of Pete
Galvan, date of birth 12/15/1964.

A governmental body has a good faith duty to relate a request to the information it holds.
""" Open Records Decision No. 561 (1990). A hyper-technical reading of a request for information
does not effectuate the overall legislative intent of the Act.,Open Records Decision No. 4455

- (2000).

-
I am of the opinion that this information constitutes a public record. If you agree, please
advise ofa time and place when/where I might be able to review such record(s), or alternatively,
ple'8.Se advise of the reproduction cost for aU such inf.ormation.

.... Thank you for your prompt attention to this request.

.. Sincerely,

- John P. Denholm

- www.MusickLawOffice.com
...
- USPS - Track & Confirm Page 1 of 1

- '1
,

.. __._.__._. __ • .__ ._ ""_"_"_"'_' .. _...... _.. _
.__ _ ·. .
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I ] - - - - . . . - -........- - - - - . - - ....-.--------.

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.
_
_:_-_:.- -. _- -._ _. -. _ __ . --==-..-.. . . . '--"
Number: 700928200000 77405722 3 . - -. .-:- _. ... L
- (s): Certified Mail™
[. __]Status: Delivered
0
0
o
Enter LabeVReceipt Number. 0
0
, .
L
Your item was delivered at 11 :36 AM on March 5, 2010 in
HOUSTON, TX 77002.

-
Detailed Results:
11-;36
am,
oArrival at Unit, March 03, 2010, 8:03 am, HOUSTON, TX 77002
.. l[xl I ._.._. .1 __. . _
Track & Confirm by email
Get current event information or updates for your item sent to you or others by email. I:-=.J
I
_..._n"

Copyrlght© 2010 USPS. All RIghts Reserved. No FEAR Act EEO Data FOIA

• ," j\." ! '.


\ ,r\"" ':
r"

-
..

file:/IL:\Criminal Clients\Guthrie, Louis\Civil Service Appeal\TPIA on Galvan USPS - Trac... 4/1/2010


-
MUSICK & MUSICK, LLP A TIORNEYS AT LAW
397 N. SAM HOUSTON PARKWAY E., SUI1TI 325 • TEXAS 7706q • TELEPHONE: (281) 443-7747 • FAX: (832) 448-1147

- JOANNE M. MUSICK
JOANNE@MuSICKLAWOFFlCE.COM
AMANDA G. DOWNING
AMANDA@MUSICKLAWOFFlCE.COM

-
Board Certified luvenile Law
Texu Board or Legal Specialization JOHN P. DENHOLM
JOHN@MusICKl.AWOFFICE.COM
EARL D. MUSICK
F.ARL@MUSICKLAWOFFICE.COM

FACSIMILE MEMORANDUM

DATE: APRIL 1. 2010

- To: Open Records Committee COMPLAINT (Attn: Mr. Coggeshall)

TIME: _ FAX No: 512-463-2092

No. OF PAGES: 16

FROM: John P. Denholm

RE: COMPLAINT on Harris County Sheriff violating TPIA

-
COMMENTS: Your office issued opinion on March 9th that information was public and Sheriff still
has not released it. Also, TPIA request ignored on another matter.

.. CONFIDENTIALITY NOTE
The information contained in this facsimile message is legally privileged and confidential information,
which is intended only for the use of the individutl party named above. If the reader of this message is
not the intended recipient, you are hereby notified that any use, dissemination, distribution or
reproduction of this message is strictly prohibited. If you have received this message in error, please
immediately notify uS by telephone and return the original message to u.' at the address listed above.
Thank you.

..
-
..
..
-
- hp LaserJet 3380

- Musick &Musick LLP


832-448-1147
Apr-1-2010 13:25
n v e n t

- Fax Call Report

Job Date Time Type Identification Duration Pages Result

- 970 4/ 112010 13:14:24 Send 15124632092.1126# 10: 34 16 OK

MUSICK & MUSICK, LLP ATI'OllNl!YS AT LAIJI

JOANNa fol.Iol<lllca A>w/D,\ O. D...-o

....

..-

-

T_ ....., JOHN P. Oa......UI
&d1. D. MUitc.
..onlICLalM'

FACSiMILE MEMORANDUM

DAT!: ApIlLI 2QIQ

nNB: _
FAll. NO: UZ:!U::Zlll!a
NO.OPPAOI!S: 16

-
PROW: Ipba P Dc;Mplm

IE.: COMPLAJNI 00 H,nt, COUO", Slwriff riolt., TPIA

COMMENTS: Your ollie. io,ued opil1ioo on Muck 9· thor Inlo_oo .... p"blic IIld Shedff .1iB

-
hit not f'deued it Allo. TPIA fequftC icnarcd an Inathu maa:cr.

-
-
-
-
-
- INTERNAL AFFAIRS CASE NUMBER:09-0175-0622

- Case Summary Report Page 4 of6

.. COpy OF SPEEDING CITATION ISSUED TO DEPUTY GALVAN-ACCUSED


(Tab 4)

.. On September 25, 2009, I received a copy of the on scene video from Victoria DPS. The

- video will be placed with the original documents of this report. A synopsis of the video
will be under Tab 5 of this report. END.

- The/allowing is a synopsis a/the on scene video:

SYNOPSIS OF ON SCENE VIDEO PROVIDED BY DPS


m
X
- (Tab 5)

The video shows Trooper Slovacek sitting the side of the roadway. The video shows her
I
-OJ
-....,
- then driving to the opposite lane, then catching up to and stopping a mini-van. It shows
her approaching the vehicle on the passenger side and asking the driver to exit. Galvan
exits and he explains he his lost. Galvan is wearing shorts and sandals. Trooper ......
o
- Slovacek asks Galvan if he has been drinking. Galvan tells her he has not, and does not
drink. During the conversation Galvan tells her he is a Harris County Deputy. Trooper
Slovacek then returns to her patrol car and runs routine checks on Galvan. She also
attempts to verify his employment with Harris County. The video shows Galvan standing
on the side of the road.. He does not appear to sway or stagger. Galvan steps into the
grass on the side of the road. Apparently he steps into an ant bed. Galvan jumps back
onto the pavement and appears to be swatting something off his feet and legs. A male
trooper shows up as back up and walks up to Galvan. He and Galvan have a
conversation, but you cannot hear what they are saying. You hear Trooper Slovacek
talking with Corpus Christi DPS. The dispatcher tells her Galvan has a prior DWI arrest
in Harris County in. 2007. Trooper Slovacek exits her patrol car and walks back to

-
Galvan. After she exits her patrol car, the windshield fogs up, making it difficult to see
clearly what is happening in the video. Trooper Slovacek asks something of Galvan.
Galvan admits to drinking four Budweisers and two crowns. Galvan explains he doesn't

-
want to get arrested. Trooper Slovacek tells Galvan he has a prior DWI, which he denies.
Trooper Slovacek has Galvan perform the Horizontal Gaze Nystagmus Test, the results
which cannot be seen on camera. Trooper Slovacek then walks away from Galvan
confers with the back up trooper. You cannot tell what they are saying. During this

- conversation Galvan walks back to his vehicle. Trooper Slovacek has Galvan perform
the Heel to Toe field sobriety test. Galvan performs this test while barefoot on the
asphalt. Galvan stumbles when he does the 180 degree turn during the test. Trooper

- Slovacek has Galvan perfonn the One Legged Stand sobriety test. Galvan holds out his
hands, sways, keeps dropping his right foot, and looks up during the test. Trooper

-
Slovacek then has Galvan recite the alphabet, which is does fine. Trooper Slovacek has
Galvan perform the Finger Count sobriety test, which he seems to do fine on, Trooper
Slovacek asks Galvan if he would like to take a field breath test. Galvan replies, "Not

-
really." Trooper Slovacek has Galvan put on his sandals. Trooper Slovacek then arrests
Galvan for DWl. The video then shows the troopers inventorying and towing Galvan's

-
"'1
I

" ._J

- MUSICK & MUSICK, LLP ArrORNEYSATLAW


N. SAM HOUSTON PARKWAY E., SUITE • HOUSTON, TExAs 77060 ., (281) • FAX: (8)2) 448·114-7

JOANNEM. MUSICK AMANDA G. DOWNING


jOANNI!@MusICKLAWOIoHCI!..COM AMANDA@MUSICl<LAWOFFlCE.COM
Boord Certified JuvCl\ile Law
r..... Board orLOfIaI Specialization JOHN P. DENHOLM-
JOHN@....lUSICKLAWOFPlCIl.COM
EARLD. MUSICK
WOI'I'ICE.COM

- AprilS, 2010

The Honorable Adrian Garcia via CMlRRR #7009-2820-0000-7740-5777


Sheriff of Harris County, Texas
m
- 1200 Baker
Houston, Texas 77002 ><
I
-OJ
- Re: Request for RecordslInformation Made Pursuant to Texas Public Information Act

Dear Sheriff Garcia,

Pursuant to the Texas Public Information Act (codified at TEX. GOV'T CODE ANN.
Chap. 552), I respectfully request access to/copies of the following record(s) maintained by your
agency:

Any information, as defined by TEX. GOV'T CODE ANN. § 552.002 (a) stored in
any medium as defined by TEX. GOV'T CODE ANN. § 552.002 (b), related to any
Administrative Investigation(s) of Major James M. Kirk.

- I am of the opinion that this information constitutes a public record. If you agree, please
advise of a time and place when/where I might be able to review such record(s), or alternatively,
please advise of the reproduction cost for all such information.

- Sincerely yours,

John P. Denholm

-
- ."\
www.MusickLawOffice.com
- U.S. Postal Service
CERTIFIED MAIL, RECEIPT
(Domestic Mall Only; No Insurance Coverage Provided)
J

-
Poslmerk
Retum Receipt Fee Here
(Endol'S8ment RllC\ulred) 1------=='1'
Resvtcled Delivery Fee
(Endol'lllllll&nt Required) fo--..:..,....--'-+--1

00 Tolal

ru lSiiiiiTTO-"""f\'Femnift""ioffi:naifri'ilsu01JlrftV"'T!'Q!r-----,
g .
IT"

I"- •.Iexas.l.7.QQ1. .

-
CIty, Sla/e. ZIP+4

.. . _. -------
SENDER: COMPI ElL Tf/iS JECTION t (J'dl', , 1: /,"/,, ',f I I{OIJ or. /1/ ( IVERY


• Complete Items 1, 2, and 3. Also complete
Item 4 11 Restricted Delivery Is desired. [J Agent

-
• PrInt your name and address on the rellefSe CI Addressee
SO that we can return the card to you.
• Attach thIs card to the back of the mallplece,
or on tho front 11 apllCO pormlte.
D. Is delivery address different fIorn Item 1? [J Yes

- .--
1. Artlcle Addressed to: If YES, enter delivery address below: D No

Honorable Adrian Garcia

.. Sheriff of Harris County Texas


1200 Baker St.
Houston, Texas 77002 3. Servj;fllYpe
certified Mall CI Express Mall
D Registered .erRii'Ufn Receipt for Merchandise
D Insured Mall D C.O.D.
4. Restricted Delivery? (EXtrrI FfJe) 0 Yea
"- -
.... _...... " .. _--- -- -"-----,. __ . . _._------..- .. _-- --_.,._ ... -
2. ArtIcle Number
(Transfer from service Isbel) 7009 2820 DODD 7740 5777
PS Form 3811. FebNary 2004 Doml!lllllc Return Recelpt 1021195002-M-1540

-
-
-
-
Sheriff dismisses internal affairs major over 'violations' I Houston & Texas News I ehron.... Page 1 of 3

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. . 4SComments 12 Recommend

Sheriff dismisses internal affairs major aco.) Ghron.com 0 Web Search by YAHOO!
By CHRIS MORAN
HOUSTON CHRONICLE
April 6, 2010, S'?,7PM

- m
The head of the Harris County Sheriffs Office internal affairs unit
Share has been dismissed after he himself became the subject of an
. . DeUc/o.us ZUi Digg
investigation.
The Sheriffs Office has confirmed that Major James M. Kirk "was ><
..
Twitter Yahoo! Buzz dismissed from his duties at the discretion of the sheriff due to
I
I(j Facebook StumbleUpon administrative violations."
A sheriffs spokesman would not divulge the violations . -
(Xl
Like Be the first of your friends to like this. Sheriff Adrian Garcia hired Kirk to join his command team in
January 2009 when he took office. The office's 10 majors are the
highest-ranking members of the 4,300-member department after the -
-.,
- sheriff.
Kirk, 52, led the Office of Inspector General, in which he oversaw
investigations into allegations of wrongdoing by sheriffs employees.

..
Wlen the sheriff started an investigation into Kirk a month ago, he
transferred the major to the Professional Education and Training
Bureau. To avoid involving Kirk's former subordinates in the
investigation, the sheriff assigned it to the criminal investigations
unit.
No findings of criminal wrongdoing have been forwarded to the district allorney, sheriffs spokesman Alan Bernstein

-
said.
Because majors serve at the will of the sheriff, Garcia does not need a cause to dismiss them. But Garcia
dismissed Kirk on Thursday because of the violations. Get TV Weekly for
"Sheriff Garcia expects every single one of his employees, regardless of position or rank, to uphold the core values the most complete

-
of the organization - merit and maintain the public's trust, embrace and deliver professional service, protect our 1=llple & TV listings
citizens with honor and courage, exemplify ethical conduct at all times," the Sheriffs Office said in a prepared
statement. "Anyone found not abiding by these values wiil be disciplined appropriateiy and within the limits of the
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- http://www.ehron.eom!disp/story.mpl/metropolitan/6946970.html 5/4/2010
-
-
The Office of Vince Ryan

- County Attorney

EXHIBIT 13

July 20, 2009

John Denholm

- Musick & Musick, LLP


397 N. Sam Houston Parkway
Suite 325

- Houston, Texas 77060

In re: Complaint of June 11, 2009

Dear Mr. Denholm:

- I am writing to you to inform you of the result of my investigation of your


complaint forwarded to this office on June 16,2009 regarding a request which you made
under the Texas Public Infonnation Act.

- The conclusion of my investigation is that copies of all of the documents which


could be located which were responsive to your requests of April 28, 2009 and May II,

- 2009 concerning the personnel file and administrative investigation file of Dep. Tony
Lewis and the administrative investigation file of Lt. Louis Guthrie were produced to you
in compliance with the law. I found no evidence in any fonn whatsoever of a failure to
fully comply with the law or an attempt to evade the tenns of the Texas Public
Information Act in any way. Attached is a memorandum detailing my investigation.

Therefore, the basis of the complaint is unfounded, and no further action will be
taken by this Office.

.. 't1 1Y
,

Assistant County Attorney

- 1019 Congress, 15th Floor. Houston, Texas 77002 • Phone: 713-755-5101 • Fax: 713-755-8924
..
..
Cc: Honorable Greg Abbott
Attorney General of Texas
P.O. Box 12548
Austin, Texas 78711-2548

..

-
-

...
..

-
-
MEMORANDQM

From: Douglas P. Ray, Assistant County Attorney

To: File

.. In Re: June 11,2009 Complaint from John Denholm

Date: July 20, 2009

.. On April 28, 2009, the Harris County Sheriffs Office ("HCSO") received a
request from John Denholm, an attorney with the law offices of Musick & Musick, LLP,
for the production of certain documents pursuant to the Tex. Gov't. Code Chapter 552

.. concerning the termination by HCSO of Dep. Tony Lewis. Mr. Denholm requested the
personnel file and administrative investigation file of Dep. Lewis. A copy of Dep.
Lewis's personnel file and administrative investigation file were provided on May 13,

.. 2009 and May 19, 2009.

On May 11, 2009, the Harris County Sheriff's Office ("HCSO") received a
request from John Denholm, an attorney with the law offices of Musick & Musick, LLP,
for the production of certain documents pursuant to the Tex. Gov't. Code Chapter 552
concerning the termination by HCSO of Lt. Louis Guthrie. Mr. Denholm requested the
administrative investigation file of Lt. Guthrie. A copy of Lt. Guthrie's administrative

- investigation file were provided on May 15,2009.

-
Additional material was later produced on June 10,2009.

On June 11, 2009, a complaint was received by the HCSO. The complaint had
five bases:

- 1. That a tape recording of phone call by Sgt. John Trump made to Chief

.. 2.
Deputy Danny Billingsley regarding the complaint against Dep. Lewis had
be turned over to the Internal Affairs investigator investigating the
complaint, but was not in the file produced by HCSO to Mr. Denholm.
That a recording of an interview conducted by Sgt. Chris Sandoval, the
Internal Affairs investigator investigating the complaint against Dep.
Lewis, with a witness named David Rodriguez, was not in the file
produced by HCSO to Mr. Denholm.
3. That a copy of the records of the polygraph examiner who conducted a
polygraph exam of the complainant against Dep. Lewis were not included
in the file produced by HCSO to Mr. Denholm.

- 4. That the records of the "secret surveillance squad" investigation conducted


by Sgt. Bruce Carr and Dep. Jack Fleming of the complaint against Dep.
Lewis were not in the file produced by HCSO to Mr. Denholm.
>

5. That eighteen recordings of witnes,s interviews regarding the complaint


against Lt. Guthrie were not included in the file produced by HCSO to Mr.
Denholm.

I reviewed the files containing the Requests and the documents which were
gathered in response the Requests.

.. I interviewed Lt. John Legg regarding the production of material requested


concerning the tennination of Dep. Lewis and Lt. Guthrie. Lt. Legg was the public

-
infonnation officer who handled the responses to the original requests.

According to Lt. Legg, there was no tape recording of any conversation between

-
Sgt. Trump and Chief Deputy Billingsley in the administrative investigation file of Dep.
Lewis. There was no record that any such recording was ever submitted by Sgt. Trump
to the investigators investigating the complaint. When contacted, Sgt. Trump stated that

.. he had made a recording of the conversation, but that he had not retained it after the
conversation and had not turned over a copy of it to any investigator. Therefore, there is
no basis for the complaint based on the failure to produce the tape recording of the
conversation between Sgt. Trump and Chief Deputy Billingsley. This part of the

- complaint is groundless.

I interviewed Lt. Legg regarding the recording of the interview between an


internal affairs investigator and a witness named David Rodriguez. Lt. Legg stated that
the file reflected that a compact disc recording of this interview was made and that it was
supposed to be included in the report of the investigation of Dep. Lewis as "Tab 6."
However, the sleeve for Tab 6 was empty. Sgt. Chris Sandoval of the Internal Affairs
Division conducted the interview and made the recording. Lt. Legg and Sgt. Sandoval,
along with Lt. Bryant Pair and Grace Orellana of lAD conducted a thorough search ofthe
lAD office searching for the CD, but did not find it. However, Sgt. Sandoval confinned
that he made a written report of the interview, and included this statement in the material

-
produced. Therefore, although it was confinned by some evidence that the recording of
the interview with the witness David Rodriguez by Sgt. Sandoval did exist at one time, it
could not be located by HCSO personnel after a diligent search. There was no evidence
of criminal negligence in the storage ofthe CD containing the recording.

- I interviewed Lt. Legg concerning the polygraph charts regarding the polygraph
examination of the complainant against Dep. Lewis. According to Lt. Legg, a copy of

- the polygraph charts of the polygraph conducted of Antoine "Tony" Noun by polygraph
examiner Stephan Cabler were obtained and provided to Mr. Denholm subsequent to the

-
complaint. Lt. Legg stated that such documents were not routinely provided by the
polygraph examiner following an examination. The polygraph examiner retains these
records and submits a report of his findings. The report is then placed in the investigative
file. The polygraph examination report was produced along with the rest of the
administrative investigative file, as requested, The original request did not include a
request for the polygraph charts not contained in the administrative investigation file.

-
-
.. Therefore, there is no basis for the complaint based on the failure to produce the charts.
This part of the complaint if groundless.

I interviewed Sgt. Bruce Garr and Sgt. Chris Sandoval concerning the "secret
surveillance squad" investigation of the complaint against Dep. Lewis by lAD.
According to both Sgt. Carr and Sgt. Sandoval, the Special Investigation Unit to which

.. Sgt. Carr and Dep. Fleming were attached was never involved in the investigation of any
complaint against Dep. Lewis. Consequently, there is no record of such an investigation.
Sgt. Carr and Dep. Fleming's sole involvement in the case was to recommend to Sgt.

.. Sandoval that he interview David Rodriguez. Rodriguez, a fonner employee of Tony


Noun, the complainant against Dep. Lewis, had hinted to Sgt. Carr and Dep. Fleming in
an interview that he "knew something" about his employer and certain sheriffs deputies.

.. Sgt. Carr passed this infonnation along to Sgt. Sandoval. Therefore, there is no basis for
the complaint based on the failure to produce the "secret surveillance squad"
investigation of the complaint against Dep. Lewis. This part of the complaint if
groundless.

I interviewed Lt. Legg regarding the eighteen recordings of witness statements

.. alleged to be missing from the administrative investigation file concerning the complaint
against Lt. Guthrie. Lt. Legg stated that when requested, the entire file concerning Lt.
Guthrie was turned over to Ann West (Ragsdale) in the HCSO Legal office. I
interviewed Ann West, and she stated that the entire file which she gathered was

- produced to Mr. Denholm. The eighteen recordings referred to in the complaint were not
in the file at that time. I interviewed Lt. Bryan Pair of the Internal Affairs Division, as
well, and he stated that, to his knowledge, the tape recordings described were not
compiled by lAD and were never part of the administrative investigation file. Sgt.
Sandoval, the lAD investigator, also did not recall making the tape recordings or their

.. being part of the administrative investigation file. He did include written statements by
the witnesses interviewed which were included in the file which was produced to Mr.
Denholm. These tape recordings of witnesses may exist somewhere. However, they

.. were not compiled as part of the lAD investigation and they were never in the file
requested. None of the persons interviewed in this investigation was aware of the their
location nor had they located them as part of their efforts to gather the requested

.. documents. Therefore, there is no basis for the complaint based on the failure to produce
the eighteen tape recorded witness statements. This part of the complaint is groundless.

-
-
..
..
-
· .,

ATTORNEY GENERAL OF TEXAS


GREGABBOTI

- '. Criminal Prosecutions Division

.. Office: (512) 463-3038


Fax:

.. September 23,2009

Re: John Denholm PIA complaint

.. Mr. Douglas Ray


Harris County Attorney Office

..
1019 Congress, lstn Floor
Houston, TX 77002

Mr. Ray: m
.. I have probably concluded reviewing most matters related to Mr. Denholm's complaint. At
X
I
this point in time, there is not enough evidence to move forward with further legal action.
-OJ
That being said, I have a few concerns: 1) Various requested items have simply gone missing.
Procedures should be in place to store and secure all governmental items and docwnents; 2)
Some requested items (audio CDs) were claimed to have not existed or were missing but were
-
--I
apparently found after this office's inquiry into the matter. It would lead one to conclude
somebody finally got serious about looking for the material after the AG inquired about it; and
3) Mr. Denholm claims he has not seen the required PIA notice upon a visit to the Sheriff's
Office. This office has made no independent detennination of whether or not that is the case.

- The Attorney General's Office would just remind the Harris County SheriffDepartment ofthis
obligation.

.. I would be glad to discuss any of this if you want. Again, thanks for your cooperation and
assistance in working with me on this matter.

Sincerely,

..
Lance A. Kutnick
Assistant Attorney General

cc: John Denholm via email

- POST OFFICE Box 12548, AUSTIN, TEXAS 78711.2548


WEB: VNvW.OAG.STATE.TX.US
lance.kutnick@oag.state.tx.us