public information lawsuit against harris co sheriff's office

8/9/2019 Public information Lawsuit Against Harris Co Sheriff's office

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__

CAUSE NO. 2010-28404

LOUIS GUTHRIE, Petitioner §MARCUS STAUDT, Petitioner §

§vs. §

§ADRIAN GARCIA, SHERIFF OF §HARRIS COUNTY, TEXAS §Respondent §

§

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

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).

Page I ofl2

Original Petition for Writ of Mandnmus

Sherif/Garcia's violation ofTPIA

FILEDLoren JacksonDistrict Clerk

MAY 05 2010

Time:

--,.,..-;----;:-....,.....,0------Harris County, Texas

By Deputy



PARTIES AND SERVICE>

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

4. 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.

of 12Original Petitionfor 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 byId.

§

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 ofRespondent 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,

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Original Petitionjor Writ ojMandamus

SheriffGarcia '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 unders igned'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

oj 12

Original Petiti onjor Writ ojMandamus

SheriffGarcia '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

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Original Petition fo r 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. OnMarch 5, 2010, in the course of representing Petitioner Guthrie, the

undersigned attorney made a request for information related to the discipline ofDeputy 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 ofDeputy 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


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 ofMajor 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

0/12

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 findingsof

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

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Original Peli/ ion for Writ ofMandamusSheriffGarcia '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


CAUSE OF ACTION

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

elected Sheriffof 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).

of 12Original 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 ofMandamus compelling Respondent Garcia

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

then Major James Kirk.

of 12Original Petition for Writ of Mandamus

Sherif/Garcia's violation ofTPIA



PRAYER

WHEREFORE PREMISES CONSIDERED, the undersigned asks that Respondent

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

writ ofmandamus 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 SheriffofHarris 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

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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 ofMandamus accurately

recount his communications and contact with the office ofRespondent Adrian Garcia, Sheriffof

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 /"'-ay ofMAY, 2010.

VICKI SHAY BYERS

MY COMMISSION EXPIRES

October 28,2013Notary Public in an

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 therday ofMAY, 2010.

VICKI SHAY SYERS

MY COMMISSION EXPIRES

October 28, 2013

Notary Public in an

State ofTexas

Page II of12Original Pet ilion for Writ ofMandamusShe riffGarcia 's violation ofTPlA



MUSICK & MUSICK, LLPrJ ..

ArrORNEYSATLAW

\{

397N,SAMHoUSTONPARKWAYE"SUI'rn325 ' HOUSTON,TExAs77060-

',TELEPHONE: (281)443-7747?

• FAX: (832)448-1147

JOANNE M. [email protected]

Board Certified 1uvenile Llow

r . . . . Board ofLosol Speeialiuuon

EARLD. [email protected]

AMANDA G. DOWNlNG

[email protected]

JOHNP.DENHOLM.

[email protected],COM

April 7, 2010

The Honorable Adrian Garcia

Sheriff of Harris County, Texas

1200 Baker


via CM/RRR #7009-2820-0000-7740-5807

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 inany medium as dermed by TEX. GOV'T CODE ANN. § 552.002 (b), related topayroll 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 ofatime 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

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249I l l l d I l1kl l l " I" I : ' ; l l l l i ijr

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EXHIBIT 2



''''''

April 19, 2009

Mr. John P. Denholm

Musick & Musick, LLP397 N. Sam Houston Parkway East, Suite 325


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,

'>1James J. Savage

ssistant County Attorney "'\

JJS/ar

EXHIBIT 3

12008"ke r Housto l l , fexas 77002 /13. 7 55.6044 I iWW.hcso.hctx ne t EXECUTIVE BUREA



SHE . R I F F ADR 1 AN GARC I A

The Honorable Judge Ed Emmett

And Members of Commissioners Court

Harris County Administration Building

Houston, Tx. 77002

Honorable Members of Court:

July 15,2009

Vote of the Court: y

Judge Emmett

Comm. Lee

Comm. Garcia

Comm. Radack

Comm. Eversole

No Abstain

§o

TheSheriffs Office respectfully request authorization from Commissioners Court to work withthe 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, HARRIS COUNTY

AG:cd

EXHIBIT 4

Presented to Commissioner's Court

JUL 28 2009

APPROVE GIL-

Recorded Page 102/'

EXECUTIVE BUREAU

\



•, I I 1 , 'I't I'I 1 I I 11 I I

DATE IFROM TQ MAJOR REASON/BuREAu/P

04/04/09 8C/8S 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL

04/10/09 8X 8H POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL

03/10/09 9W/1S 9W/1111 S POSTING ERROR/SUPPORT SERVICES BUREAU/JENNIFER MACIAS

03/11/09 9W/1S 9W/1111S POSTING ERROR/SUPPORT SERVICES BUREAU/JENNIFER MACIAS

OFF 8W SMITH POSTING ERROR/701 DETENTION BUREAu/JENNIFER JOHNSONOFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES

058071 04/04/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES

OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES

OS/26/09 8V 8W VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY

8W 8.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

04/28/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

S 04/30/09 8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

05/01/09 OFF 8W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

02/24/09 17Z 12Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ

02/25/09 8W/9Z 8W/4Z SUBMITTED WRONG TIME/DETECTIVE BUREAU/MONIKA LOPEZ

OFF 4W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

03/27/09 8W 12W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN

03/26/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN

04/05/09 8W 8B SILVIO' POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

04/08/09 OFF 8W SMITH TIMEKEEPING ERROR/DETECTION BUREAu/JENNIFER MACIAS

OFF 11W SILVIO POSTING ERROR/PATROL BUREAu /HEATHER WHITMANOS/24/09 8W 13W POSTING ERROR/CRIMINAL JUSTICE BUREAu/MARY ANN MOREHOUSE

05/25/09 8H 8H/8W POSTING ERROR/CRIMINAL JUSTICE BUREA u/MARY ANN MOREHOUSE

03/22/09 8W 10.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

03/24/09 OFF 8W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN


03/26/09 8W 10W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN


OS/26/09 16W 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL

03/25/09 8W 9W SILVIO POSTING ERROR/PATROL BUREAUlHEATHER WHITMAN


06/06/09 8W 16W SMITH EMPLOYEE ERRORl701 DETENTION BUREAu/DEPUTY JOHN ROBINSONe



• • • • , ,I I I 1 I I I I 1 I I 1

DATE FROM TO MAJOR REASON/BuREAu/PERSON

06/18/09 ' 8W 16W SMITH POSTING ERROR/1200 DETENTION BUREAu/JEANETIE KNOLL

03/22/09 8W 8A. SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

03/24/09 OFF 2.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

15H 01/04/09 8W 16W POSTING ERROR/HEALTH SERVICES BUREAu/JEANEn·EKNOLL

05/24/09 6.5W/.5A 7.5W/.5A VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY

..



--.-.-------.---..--. ----------.--.----- SHER I F F ADRJANGARrlA

The Honorable Judge Ed Emmett

And Members of Commissioners Court

Harris County Administration Building

Houston, Tx. 77002

Honorable Members of Court:

July 15, 2009

Vote of the Court:

Judge Emmett

Comm. Lee

Comm. Garcia

Comm. Radack

Comm. Eversole

No Abstain

o 0

The Sheriff s Office respectfully request authorization from Commissioners Court to work withthe 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 f0ADRIAN GARCIA, HARRIS COUNTY

AG:cd

Presented to Commissioner's Court

JUL 28 2009

APPROVE G If-Recorded Vol Page 107-/'

:Jr- .

EXECUTIVE BUREAU



• • , I I I II I I 'I I I1 1 I I I

.'

DATE FROM TO MAJOR REASON/BUREAu/PERSON

04/04/09 8C/8S 8W POSTING ERROR/HEALTH SERVICES BUREAU/JEANETTE KNOLL

04/10/09 8X 8H POSTING ERROR/HEALTH SERVICES BUREAU/JEANETTE KNOLL

03/10/09 9W/1S 9W/1J11S POSTING ERROR/SUPPORT SERVICES BUREAu/JENNIFER MACIAS

03/11/09 9W/1S 9W/11/1S POSTING ERROR/SUPPORT SERVICES BUREAu/JENNIFER MACIAS

06/03/09 OFF 8W SMITH POSTING ERROR/701 DETENTION BUREAu/JENNIFER JOHNSON03/28/09 OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES

OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAU/ADAM BRIONES

OFF 8W EMPLOYEE ERROR/EXECUTIVE BUREAu/ADAM BRIONES

OS/26/09 8V 8W VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY

8W 8.5W POSTING ERROR/CRIMINAL JUSTICE BUREAU/CAPTAIN RADABAUGH

8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

8W 15.5W POSTING ERROR/CRIMINAL JUSTICE BUREAU/CAPTAIN RADABAUGH

05/01/09 OFF 8W POSTING ERROR/CRIMINAL JUSTICE BUREAu/CAPTAIN RADABAUGH

02/24/09 17Z 12Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ

8W/9Z 8W/4Z SUBMITTED WRONG TIME/DETECTIVE BUREAu/MONIKA LOPEZ

03J 03/22/09 OFF 4W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

8W 12W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN


04/05/09 8W 8B SILVIO' POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN

04/08/09 OFF 8W SMITH TIMEKEEPING ERROR/DETECTION BUREAU/JENNIFER MACIAS

OFF 11W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN05/24/09 8W 13W POSTING ERROR/CRIMINAL JUSTICE BUREAu/MARY ANN MOREHOUSE

OS/25/09 8H 8H/8W POSTING ERROR/CRIMINAL JUSTICE BUREAU/MARY ANN MOREHOUSE

03/22/09 8W 10.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

OFF 8W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN




OS/26/09 16W 8W POSTING ERROR/HEALTH SERVICES BUREAu/JEANETTE KNOLL

087J 03/25/09 8W 9W SILVIO POSTING ERROR/PATROL BUREAU/HEATHER WHITMAN

087J 03/26/09 8W 11W SILVIO POSTING ERROR/PATROL BUREAUIHEATHER WHITMAN

06/06/09 8W 16W SMITH EMPLOYEE ERROR/701 DETENTION BUREAu/DEPUTY JOHN ROBINSON



I i 'i 'I "I 1 I I 1 I I 1 I I I

• • ,

IFROM '* TO MAJoR IREASON/BUREAu/PERSON

06/18/09 J 8W 16W SMITH POSTING ERROR/1200 DETENTION BUREAUIJEANEITE KNOLL

8W 8A SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

03/24/09 OFF 2.5W SILVIO POSTING ERROR/PATROL BUREAu/HEATHER WHITMAN

H 01/04/09 8W 16W PO$TING ERROR/HEALTH SERVICES BUREAu/JEANETIE KNOLLOS/24/09 6.5W/.5A 7.5W/.5A VAN PELT POSTING ERROR/PATROL SUPPORT BUREAu/DESIREE MCKINNEY



NO. 938 (;1

COpyPebrnary 24, 201 0

Heather Whitman, Administrative Assistant IT (EIN 112401)

Patrol Bureau - District V

r vrL SERV ICE

TO:

••••.• -i - - .......- '.. .

SUBJECT: Disciplinary Action(Demotion & 2-Day Temporary Suspension Without Pay)

REF: Rule 12 ("Disciplinary Actions and Appeals"), Harris CountySheriff's ,Civil Service Regulations

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 &

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 &

2, of the Harris County Sheriff's OffICe Policies (Efr. 11/19108).

m><:r:-CD

----t( j )

You are hereby advised that your position as an Administrative AssiStant n with theHarris County Sheriff's Department bas been reduced to that of Clerk and you will bereassigned to the Homeland SecuritY Bureau, Reports Section. Additionally, you willbe suspended £rom duty without pay for two (2) workdays, beginning on February 25 t

2010, and ending on February 26, 2010. This disciplinary action derives its authorityfrom Rule 12 of the Hanis County Sheriff's Civil Service Regulations and is predicatedupon a violation of one or more of the provisions of Rule 12, Section 12.02 e'Improper

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. Thereasons for this disciplinary action are set out below.

An administrative investigation (lAD Case #09-0330-1216) reveals that you repeatedly"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 maintainyour personal timesheet record, (3) failed to submit supporting payroll documents foryour overtime/time off authorization, (4) falsified payroll entries, (5) failed to obeyorders, 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 Vsubstation in September 2008, Captain J. D. Olessman observed that you did not arrivefor duty until 9:00 a.m. to 9:30 p.m., and was able to ascertain from District supervisorsthis schedule had not been previously requested or approved. Captain Glessman met with 'you in October or November 2008, to inquire i f there was a reason for your failure to



15:59 PATROL BUREAU CIVIL SERVICENO. 938

Personnel Order-Heather Whitman, Administrative Assistant,'llPage2of7

report for duty at a time that was more customary and·to infQp;n yon that your duty hourswere 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, CaptainGlessman met with you to address arepeated to failure to adhere to your assigned duty

hours. In a sworn statement you "There is no excuse for my habitual tardiness, itismy own responsibility. I truly appreciate the opportunities I have been given to correctthis pattern and apologize if it bas come across as blatant disregard. Punctuality hasalways been the 'chink in my armor' and in no was it meant as to disrespect mysuperiors." See Exhibit 1.

A review of your reported, posted and compensated time for January I, 2009, throughNovember 20, 2009, revealed numerous irregularities, viz. unapproved overtime and timeoff. See Exhibit 1. A subsequent audit of the payroll documents for District V failed touncover any Time and Attendance Records (timesheets) for you. 'When CaptainGlessman asked the whereabouts ,of yOW' timesheets, you advised him they were in yourcomputer. It was not until you were ordered by Captain Glessman to produce the payrollsheets and :;;uppcrting dOC\l111entation that you created and provided the requireddocu.-neo.1s. See Exhibit 31

. It is noted; you never submitted and received authorizationfor any overtiIne and/or time oft:: While your intent is unclear, evidence clearly indicatesthat you falsely documented and posted unauthori:z:ed overtime and time off into theHanis County payroll system.

Further demonstration of your inability to complete and efficiently perfonn your requiredduties are summarized and described in a Harris County Sheriffs Office EmployeeEvaluation Form presented to you on December 23, 2009. See Exhibit 4.

Your conduct as described hereinabove reflects a lack of judglllent and integrity. Your

failure to adhere to known policies regarding payroll procedures demonstrates a failure toexercise due diligence in discharging your duties which is inconsistent with the Sheriff's ex.pectations of its personnel. . You are hereby cautioned that any futuremisconduct on your.part will res1,Jlt in the imposition offurther disciplinary action againstyou, which may include the termination of your employment. .

The disciplinary action being imposed hereby is authorized UJ;lder provisions of theHarris County Sheriff's Office Policies, effective November 19, 2008, and is furtherpredicated upon your violation of certain sections of the Harris County Sheriffs OfficePolicies, and, where applicable, certain Bureau',roles and/or regulations, as specifiedhereinbelow:

1Consisting of86 pages of documents created on December 9, 2009.



15:59PATROL BUREAU CIVIL SERVICE

NO. 938 [;10

Personnel Order -Heather Whitman, Administrative Assistant, IIPage 3 of7

Section 200

Policy # 217

l l. A.

F.

Policy #247

"B.

Personnel Practices

Overtime Policy

Prior Approval:Request for overtime will be made in advance of working overtime by theperson 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 circumstancesnecessitate; however, a written O"ertime Authorization Form shallbe completed and forwarded to the employee's :immediatesUpervisor as soon as possible.

Falsification of Records:Employees who subnnts any false, fraudulent, or misleading employmentinformation, employee activity report, statement of facts, affidavit of anytype, or documentation supporting absence(s) or overtime shall be subjectto disciplinary action may include te,rmination.

Payroll Procedures

2. c. It is the responsibility of each employee of the HarrisCounty Sheriff's Office to ensure proper and accuraterecords pertaining to the time and attendance records and

all supporting documentation.

(1) Each employee sign and date bislher own timeand attendance record and by so doing attests to theaccuracy ofhislher time and attendance record.

(2). All documents associated with payroll shall be

properly completed and signed by the employee

when submitted.

d. No individual shall falsify or cause to be falsified any timerecord of any employee of the Sheriff's Office. To do so

shall be grounds for disciplinary action which may include

termination.

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



012/25/2010 15:59 PATROL BUREAU CIVIL SERVICENO. 938 [;10

Personnel Order -Heather Whitman, Administrative Assistant,nPage 4 of?

D.

Section 300

Policy #302

n. B.

c.

Policy #303

I. B.

c.

Entry of Reported Hours Worked

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

EmPloyee Conduct

Professional Conduct Required

2. Completes a forty (40 hour work week, unless excused.

8. Complies with directions given by supervisor.

9. Maintains asatisfactory standard of performance necessary for thework assignment.

1. Avoid excessive absenteeism or tardiness particularly in

conjunction with regular scheduled offdays.

Conduct P.-ohibited

Violation ofRules and Regulations:Each employee of the Sheriffs Office shall be subject to:

1. RepJ:inuIDd

2. Suspension

3. ,Reduction in rank. and/or

4. Dismissal from the Sherifrs Office and from service

According to the nature of the offense, for violation of the roles andregulations and the code sections appearing in the Department Policies. orfor any of the other rnles, regulations, general or special orders of theHarris County Office.

The following acts or 'omissions are expressly prohibited conduct foremployees of the Harris County Sheriff's Office:

7. General BehaviorNo employee shall act or behave privatel!, or in any officialcapacity in such a manner as to bring discredlt upon himlherself orthe Sheriff's Office.

15. False Infonnation inRecordsNo employee shall kno\Ving or willingly make an official report,based on false information or knowingly or willingly enter or causeto be entered in any Sheriff's Office record or report, anyinaccurate, false or improper information.



02/25/20113 15:59 PATROL BllREAU CIVIL SERlJ ICE,"- - NO. 938 (;10

Personnel Order -Heather Whitman, Administrative Assistant,nPageS of7

D. Additional Acts ofhnproper Conduct:

. Inefficiency.

5. Insubordination:

No employee shall willfully disobey any order lavvfully issued bysupelV1sory personnel or acting authority, or be disrespectful,mutinous, insolent, or direct abusive language toward anysupervisory personnel or acting authority. Flouting the authority ofany supervisory personnel or acting authority, by obviousdisrespect 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 supervisoror acting authority employed by the Sheriff's Office.

7. Neglect ofduty.

9. Violation, or willful disregard, of any .lawful regulation or ordermade and given by aSheriff's Office Supervisor.

17. Willful violation of any of the rules set forth in the Sheriff's Officepolicies 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 alltimes 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 anysupervisor or other proper acting authority, whether or not the supervisoror acting authority is in the employee's chain of command.

Policy #305 Performance of Duty

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

Each employee shall perform his/her duties' in accordance with thedepa:rtment policies, job description, the policies and proceduresmaintained by the bureau to which assigned, and all applicable Sheriff'sOffice or Bqreau orders and memoranda.



Bureau personnel fiJPEWS

15:59 PATROL BUREAU CIVIL SERVICE-,. NO. 938

Personnel Order -Heather Whitman, Administrative Assistant,' ITPage 7 of7

I

.i

i

,

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.

You may refer to the Harris County Sherifrs Department Civil Service Regulations, Rule12, Section 12.04, concerning your right to appeal this action to the Sheriff within ten(10) days.

For Sheriff Adrian Garcia,R. D. Silvio, MajorPatrol Bureau

:MDS/sdc

Il &hMottie Cato, DirectorHuman Resources Bureau

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

My signature affixed below ack:Uowledges that I have received and read this personnelorder which sets out disciplinary action., and have been offered an opportunity to respond

to the allegations set out herein above. \0

Date

cc: . John Dyess, Chief Adm,inistrative Officer

Human Resources perso e1 file



- -

15:59 PATROL BUREAU CIVIL SERVICENO. 938 [;10

------_....a\rtll eUr&aI,l- jO\-\RMS COpy

" 1 0 -- _ _ DISCIPLINARY ACTIONdate .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 haveengaged 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 shouldbe disciplined for your conduct. However, before imposing discipline, I att1,offering youan 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 assistyou, I am now presenting you with a copy of the proposed personnel order which setsforth 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 respondto 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 thatthe opening statement which is set out above was' read to me and that I fully understandit. 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

..... .



oFFICE GENERA(

GREG ABBOTT

February 10, 2003

Ms. Melissa L. Barloco

Assistant County Attorney

Harris County

10 19 Congress, 15th Roor

Houston, Texas 77002-1700

OR2003-0891

Dear Ms. Barloco:

You ask whether certain information is subject to required public disclosure under mchapter 552 of the Government Code. Your request was assigned ID# 176953.

>IThe Harris County Sheriffs Department (the "department") received two requests for -information on December 2, 2002 and December 4, 2002. Based upon your representation Cthat the first requestor has since clarified his request, and the department has supplied him -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 --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 haveconsidered 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

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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 GovernmentCode. 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 tocompleted 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 of crime is exceptedfrom 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 affairsinvestigations that it represents.




We note, however, that section 552.108 is inapplicabfe to basic information about an arrested

person, an arrest, or a crime. Gov't Code § 552.108(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 of the 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 d id not result in convictions or deferred adjudications. However,

aftercareful review, it does not appearto this office that the information submitted in ExhibitC relates to a criminal investigation by the department. A review ofExhibi t 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 officerresulted 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 withholdExhibit 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 memberinformation 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.




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). I f 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).

I f 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 thegovernmental body's intent to challenge this letter ruling in court. I f 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).

I f 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. § 552.32I(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.




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:

Enc:

c:

ID# 176953

Submitted documents

Mr. Jeremy Rogalski

Reporter

KHOD-TV 11

1945 Allen Parkway


(w/o enclosures)



<»ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 9, 2010

Mr. David M. Swope


Harris County District Attorney's Office

1019 Congress, 15th Floor


Dear Mr. Swope:

EXHIBIT 8

0R2010-03375

You ask whether certain information is subject to required public disclosure under thePublic 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 Bo x 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 thegovernmental 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 request for infonnation on December 18, 2009. 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 briefcontains a that the requestor was copied on the briefon thatdate.

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 theopen 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 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 requirementsof 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 prosecutionof 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); Exparte 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 sheriffstates December 24 and 25, 2009 and January 1,2010 were Harris County holidays.




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.2Gov'tCode §552.1 01. 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 ofPublic 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 I1. 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, thesheriff 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 physicalabuse 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).




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 withcommon-law privacy.

Section 552.130 of the 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 sher iffmust withhold the CHRl we have marked under section 552.101 of

the Government Code in conjunction with chapter 411 of the Government Code and federal

law. The sheriff must also withhold the information we have marked under section 552.101of 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. Quest ions concerning the allowable charges for providing public

3We note this office recentiy issued Open Records Decision No. 684 (2009), a previousdetennination

to all governmentalbodiesauthorizing 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.

4We note the information being released contains confidential information to which the requestor has

a right of access. See Gov't Code § 552.023 (person's authorized representative has spec ial right of access toinformation 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 differentrequestor, 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 thisoffice under the Act.




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,



LJH/jb.

Ref: ID# 372732

Ene. Submitted documents

c: Requestor

(w/o enclosures)



MUSICK & MUSICK, LLP AITORNEYS AT LAW

397N.SAMHoUSTONPARKWAYE.,SUITE325 HOUSTON,TExAS77060· • TFJ.F.PHONE: (281)443-7747 • FAx: (832)448-1147


Board Conincd Juvenile LawTexu Board or Leaal Specialization

EARL D. MUSICK

EARl [email protected]

Honorable Greg Abbott

Attorney General of Texas

Supreme Court Building

P.O. Box 12548

Austin, Texas 78711-2548

AMANDA G. DOWNING

WOFFlCF..COM

JOHN P. DENHOLM

[email protected]

EXHIBIT 9

April 1,2010

via facsimile to (512) 463-2092

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 MajorRobert 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 withan 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/TP1Arelated to Marcus Staudt request



NO. 01213 [;100301/08/2010 09:04 HARRIS COUNTY SHERIFF OFFICE 4 98324481147 1 V.l.l. L , L . . . . . . . .1.A,J....)...I .1...1..1\"" . I . " " , . a .UVJ .UU' - '1.4""'''''''''' ....VA

December 18. 2009

SheriffAdrian Garcia

c/o MajDr Robert Van Pelt

Harris County Sheriff's Office

1200 Baker StreetExhibit 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:

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

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

AgoVermnentai body has a good faith duty to relate B request to the infonnation it holds. OpenRecords Decision No. 561 (1990). A hyper-tOchnical reading of a request for information does noteffeotuate the ovetall legislative intent of the Act. Open Records Decision No. 44SS (2000). .

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

Thank you for your prompt'attention to this request.

Sineetely yours,

Marcus Staudt

http://maU.google.comlmail/?ui''"'2&ik><=84cc4l66eS8Mew-att&th=12Sa2fO 155331986&8.... 12/1ai2009



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

'" \L \[email protected]"'OFFICI ..CUM. c.'OM

Board CCl1ificl! JlI'. cnilc Law

T£.u.l Boud ofLeaal Specilli!IlliDI\ JOHN P. DENHOLM EARL D. MUS1CK

J'[email protected]\I'OI'FI(.I-..cm l

January 7,2010

Honorable Greg AbbottAttorney General of Texas Exhibit BSupreme Court BuildingP.O. Box 12548


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 CountySheriffon December 18, 2009. At the time of his termination, Ml'. Staudt personally servedMajor 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 theinformation. 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 releasepublic information the Sheriff previously denied existed. My subsequent complaint with the

Harris County Attorney was investigated and cla<;sified as unfounded. Yet when AssistantAttorney General Lance Kutnick intervened, the "non-existent" records were produced within aday.




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.

Enclosure

Copy: Honorable Adrian Garcia , Sheriffof Harris County

Honorable Vince Ryan, Harris Co. Attorney

.

.

Respectfully submitted,

John P. Denholm



NO. 003 [;100801/08/2010 09:04 HARRIS COUNTY SHERIFF OFFICE 98324481147

QI-07-tGtD Att'. Offi,' T·587 P.DOZ F-736

Exhibi1 C

The Office ofVlnce RyanCounty Attorney

January 7,2010

nQ Cettified Maill Retu.rn Receipt ht1Ul!StedAnd VIa Fax to 512-463-2092 .

rable Greg AbbottGenerai ofTexas

e Olurt Building

Open Records CQmminee

Re: Public Inf(mnation Request by Marcus Sta.udt; a complete cot'}' of anyinformation 'contained in any media that comprises the admini.strative

. investigation in lAD/ora case # that resulted in the disciplining ofMarcus 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

01-0r-2010

09:04 HARRIS COUNTY SHERIFF OFFICE 9832448114? NO. 003 [;1009

D4:05PU FRQW-Harrl, OfficI T-587 p.ooa F-r36

MEMORANJWMBRIEF

The Harris County Sheriff"s Offlce received the enclosed written request for

ormation on November 30, 2009. SeeExhibit "A.

The requestor. has asked foromplete copy of the infonnmon contained in any media that comprises theinis'tra:tive invemgati..JU in IAD/OIG case # t1uu resulted in the disciplining ofcus 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 tohe requestor"s request,

Section 552.108 ofthe Government Code e1(cepts from disclosure lI[i]nformationeld by a law enforcement agency or prosecutor that deals with the detection.

nvestiption, or prosecutionofcrime . . . i f .. . it is information that deals with theelection. 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). Wertate 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


Harris County District Attorney's Office

1019 Congress, 15th Floor


0R2010-03375

Dear Mr. Swope:

You ask whether certain infonnation is subject to required public disclosure under the

PublicInformation Act (the"Act"), chapter552 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'.,,.




disclosure that it claims not later than the tenth business day after the date of its receipt ofthe 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 thegovernmental body's written communication to the attorney general asking for adecision notlater than the tenth business day after the date of its receipt of the written request forinformation. 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 sheriffsbrief 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 notethe 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 of fact in theopen 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 thedocuments submitted for our inspection. See Open Records Decision No. 522 at 4 (1990).

. The sheriff'sbriefcontains 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 thesheriffcompliedwiththe procedural requirements of section 552.301 (d) and will address itsarguments 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 ofcrime . . . if: (2) it is information that deals with the detection. investigation. or prosecutionof crime only in relation to an investigation that did not result in conviction or defenedadjudication." 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 criminalinvestigation that has concluded in a final result other than conviction or deferredadjudication. See id. §§ 552.108(a)(2)• .3Ol(e)(l)(A) (governmental body must providecomments explaining why exceptions raised should apply to information requested); Exparte Pruitt. 551 S.W.2d 706 (Tex. 1977). Section 552.1 08(a)(2) is notapplicable to recordsof an internal affairs investigationthat is purely administrative in nature and did not involvethe investigation or prosecution of crime. See City ofFort Worth v. Cornyn, 86 S.W.3d 320(Tex. App.-Austin 2002. no pet.) (section 552.108 not applicable to infonnation policedepartment 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 applicableto internal investigation that did not result in criminal investigation or prosecution). Uponreview, 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 argumentsexplaining how the resulted in acriminal investigation or prosecution.Accordingly, the sheriff may not withhold any portion of the submitted 'undersection 552. I08(a)(2) of the Government Code..

Section 552.101 of the Government Code excepts from disclosure "information consideredto be confidential by law, either constitutional, statutory, or by judicial decision" and

encompasses informationmade confidential by statute.2 Gov 'tCode §552.1 01. This sectionencompasses laws that make criminal history record information ("CHRl") confidential.CHRI generated by the National Crime Infonnadon Center or by the Texas Crimelnfonnation Center is confidential under federal and state law. Title 28, part 20 of the Codeo(Fet;l.e:ral governs the release of CHRI that states obtain from the federalgovernment or other states. Open Records Decision No:' 565 at 7 -The federalregulations allow each state to follow its individual law with respect to CHRl it generates.

[d. Section 411.083 of the Government Code deems confidential CHRI the Department of

Public Safety ("DPS") maintains, except DPS may disseminate this information as providedin chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083.Sections 41 I.083(b)(l) and 4I1.089(a) authorize a criminal justice agency to obtain CHRJ;however, a criminal justice agency may not release CHRl except to another criminal justiceagency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified inchapter 411 of the Goverrunent Code are entitled to obtain CHRl from DPS or anothercriminaljustice agency; however, those entities may not release CHRl except as prOVided

by chapter 41 1. See generally id. §§ 4I 1.090· .127. Similarly, any CHRl obtained from DPS

or any other criminal justice agency must be withheld under section SS2.10 1 of theGovernment 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, thesheriff must withhold the CHRlwe have marked under section 552.101 of the GovernmentCode in conjunction with chapter 411 of the Government Code and federal law.

Section 552.101 also encompasses the doctrine of common-law privacy, which protectsinformation if (1) the infonnation contains highly intimate or embarrassing facts, thepublication of which would be highly objectionable to a reasonable person, and (2) theinfonnation 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-lawprivacy both prongs of this test must be demonstrated. Id. at 681·82. The type ofinformation considered intimate and embarrassing by the Texas Supreme Court in industrial

Foundation included infonnation relating to sexual assault, pregnancy, mental or physicalabuse 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 governmentalbody, but ordinarily will not raise other exceptions. See Open Recol'ds Decision Nos. 481 (1987), 480(1987),470 (1987),




found that personal financial information not relating to the financial transaction between an

individual and a governmental body is generally excepted from required public disclosureunder 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 withcommon-law privacy.

Section 552.130 of the Government Code excepts from disclosure infonnation relating to amotor vehicle operator's or driver's license or pennit or a motor vehicle title or registrationissued by an agency of this state. See Gov't Code § 552.130(a)(1 )-(2). Accordingly, thesheriff must withhold the Texas driver's license and motor vehicle infonnation we havemarked 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 of the Govemment Code and federal

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

withhold the infonnation we have marked under section 552.] 30. The remaininginformation must be released to this requestor.4

'

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

This ruling triggers important deadlines regarding the rights and responsibilities of thegovernmental body and of the requestor. For more information concerning those rights andresponsibilities, 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

JWe note this office recently issued Open Records Decision No. 684 (2009), a previous determinationto all governmental bodies authorizing them to withhold ten categories of information, includ log Texas driver'slicense and license plate numbers under section 552.130 of the Government Code, without the necessity ofrequesting an attorney general decision.

4We note the in fonnation being released contains confidential infonnation to which the requestor hasa 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'sprivacy interests), If the sheriff receives another request for this particular information from a differentrequestor, then the sheriffshould again seek a decision from this office .

'The remaining infonnation includes full and partial social security numbers not beJong'ing to therequestor. Section 552, 147(b) of the Government Code authorizes a governmental body to redact a livingperson '5 social security number from public release without the necessity of requesting a decision from thisoffice under the Act.

.




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.



LJHljb

Ref: ID# 372732

Enc. Submitted documents

c: Requestor(w/o enclosures)

..



,

ATTORNEY GENERAL OF TEXASGREG ABBOTT

September 23, 2009

Re: John Denholm PIA complaint

Mr. Douglas RayHarris County Attorney Office

1019 Congress, 1Sth Floor

Houston, TX 77002

Mr. Ray:

Criminal Prosecutions DivisionOffice: (512) 463-3038

Fax: (512) 474-4570

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 ofwhether or not that is the case.The Attorney General's Office wouldjust 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 andassistance in working with me on this matter.

Sincerely,

Lance A. KutnickAssistant Attorney General

cc: John Denholm via email

POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548WEB: WMV.OAG.STATE.TX.us

fance. [email protected]

mailto:[email protected]




"

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

MUSICK& MUSICK, LLP ATTORNEYS AT LAW

JoANNE M. [email protected]

Baud Certified luvenile Law

T.. .

, Board ofLoaal Speci.liz.tioo

EARL D. MUSICK

[email protected]

The Honorable Adrian Garcia

Sheriffof Harris County, Texas

1200 Baker St.


• HOUSTON,TExAs77060 : TEi'..EPHONE: {281) 443-7747 • FAX: (832)448-1147

AMANDA G. [email protected]

JOHN P. DENHOLM,

March 1,2010

CM/RRR 7009-2820-0000-7740-5722

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) storedin any media as defined by TEX. GOV'T CODE ANN. § 552.002(b) regardingthe administrative investigation that resulted In the discipline of PeteGalvan, 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


...



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MUSICK & MUSICK, LLP ATIORNEYS AT LAW

397 N. SAM HOUSTON PARKWAY E. , SUI1TI 325 • TEXAS 7706q • TELEPHONE: (281) 443-7747 • FAX: (832) 448-1147


Board Certified luvenile Law

Texu Board or Legal Specialization

EARLD. [email protected]

DATE: APRIL 1. 2010

AMANDA G. [email protected]

JOHN P. DENHOLM

[email protected]

FACSIMILE MEMORANDUM

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 Sheriffviolating 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.



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Musick &Musick LLP n v e n t

832-448-1147Apr-1-2010 13:25

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Job Date Time Type Identification Duration Pages Result

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

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IE.: COMPLAJNI 00 H,nt , COUO", Slwriffr io l t . , TPIA

COMMENTS: Your ollie. io,ued opil1ioo on Muck 9· thor In lo_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:

mSYNOPSIS OF ON SCENE VIDEO PROVIDED BY DPS X

(Tab 5) IThe video shows Trooper Slovacek sitting the side of the roadway. The video shows her O

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. Galvanexits and he explains he his lost. Galvan is wearing shorts and sandals. Trooper ..

Slovacek asks Galvan if he has been drinking. Galvan tells her he has not, and does not odrink. 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 thegrass 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 maletrooper 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 Slovacektalking with Corpus Christi DPS. The dispatcher tells her Galvan has a prior DWI arrestin 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'twant 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 resultswhich 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 theasphalt. 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



MUSICK&MUSICK, LLP

"'1I

" ._J

ArrORNEYSATLAW

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

JOANNEM. MUSICK AMANDA G. DOWNINGjOANNI!@MusICKLAWOIoHCI!..COM AMANDA@MUSICl<LAWOFFlCE.COM

Boord Certified JuvCl\ile Lawr..... Board orLOfIaI Specialization JOHN P. DENHOLM-

[email protected]. MUSICK WOI'I'ICE.COM

AprilS, 2010

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

Sheriffof Harris County, Texas

1200 Baker mHouston, Texas 77002 >

IRe: Request for RecordslInformation Made Pursuant to Texas Public Information Act

-ODear 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 anyAdministrative Investigation(s) ofMajor James M. Kirk.

I am of the opinion that this information constitutes a public record. If you agree, pleaseadvise 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 J

CERTIFIED MAIL, RECEIPT

Poslmerk

Hereetum Receipt Fee

(Endol'S8ment RllC\ulred) 1 - - - - - - == ' 1 '

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(Domestic Mall Only; No Insurance Coverage Provided)

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SENDER: COMPI ElL Tf/iS JECTION

• Complete Items 1, 2, and 3. Also completeItem 4 11 Restricted Delivery Is desired.

• PrInt your name and address on the rellefSeSO that we can return the card to you.

• Attach thIs card to the back of the mallplece,or on tho front 11 apllCO pormlte.

1. Artlcle Addressed to: .--Honorable Adrian Garcia

Sheriff of Harris County Texas

1200 Baker St.


t (J 'dl ' , , 1: / ," /, , ',f I I{OIJ or. /1/ ( IVERY

[J Agent CI Addressee

D. Is delivery address different fIorn Item 1?

If YES, enter delivery address below:

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3. Servj;fllYpecertified Mall CI Express Mall

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D Insured Mall D C.O.D.

4. Restricted Delivery? (EXtrrI FfJe) 0 Yea

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7009 2820 DODD 7740 5777Transfer from service Isbel)

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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Sheriff dismisses internal affairs majorBy CHRIS MORANHOUSTON CHRONICLEApril 6, 2010, S'?,7PM

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The head of the Harris County Sheriffs Office internal affairs unithas been dismissed after he himself became the subject of aninvestigation.

The Sher iffs Office has confirmed that Major James M. Kirk "wasdismissed from his duties at the discretion of the sheriff due toadministrative violations."

A sheri ffs spokesman would not divulge the violations.

Sheriff Adrian Garcia hired Kirk to join his command team inJanuary 2009 when he took office. The office's 10 majors are thehighest-ranking members of the 4,300-member department after thesheriff.

Kirk, 52, led the Office of Inspector General, in which he oversawinvestigations into allegations of wrongdoing by sheriffs employees.

Wlen the sheriff started an investigation into Kirk a month ago, hetransferred the major to the Professional Education and TrainingBureau. To avoid involving Kirk's former subordinates in theinvestigation, the sheriff assigned it to the criminal investigationsunit.

No findings of criminal wrongdoing have been forwarded to the district allorney, sheriffs spokesman Alan Bernsteinsaid.

Because majors serve at the will of the sheriff, Garcia does not need a cause to dismiss them. But Garciadismissed Kirk on Thursday because of the violations.

"Sheriff Garcia expects every single one of his employees, regardless of position or rank, to uphold the core valuesof the organization - merit and maintain the public's trust, embrace and deliver professional service, protect ourcitizens with honor and courage, exemplify ethical conduct at all times," the Sheriffs Office said in a preparedstatement. "Anyone found not abiding by these values wiil be disciplined appropriateiy and within the limits of thelaw,"

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t+ (68)

FloLake wrote:

Sheriff Adrian Garcia was not afraid of rocking the boat and did the right thing. I hope anadministrative law judge doesn't undo what has been sensibiy done.4/8l2010 7'29:18 PM

Recommend (69) (11) lReport abusej

trl3 wrote:

How can anyone make ajudgement at this time concerning whether or not this was anappropriate action? We have no information at all concerning what happened and why ithappened.4/6i2010 7:35:18 PM

Recommend: (61) (11) iReport abusej

Karlsan wrote:

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The Office of Vince RyanCounty Attorney

EXHIBIT 13

July 20, 2009

John Denholm

Musick & Musick, LLP397 N. Sam Houston Parkway

Suite 325


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.

't11Y


1019 Congress, 15th Floor. Houston, Texas 77002 • Phone: 713-755-5101 • Fax: 713-755-8924



Cc: Honorable Greg Abbott

Attorney General ofTexas

P.O. Box 12548




MEMORANDQM

From:

To:

In Re:

Date:

Douglas P. Ray, Assistant County Attorney

File

June 11,2009 Complaint from John Denholm

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

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.

2. 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 fileproduced 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 includedin 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 thecomplaint 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

ofcriminal 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 thecomplaint. 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 investigativefile. 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 whichSgt. 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 bythe 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 producethe eighteen tape recorded witness statements. This part of the complaint is groundless.



· .,

ATTORNEY GENERAL OF TEXAS

GREGABBOTI

September 23,2009

Re: John Denholm PIA complaint

Mr. Douglas Ray

Harris County Attorney Office1019 Congress, lstn Floor

Houston, TX 77002

Mr. Ray:

'. Criminal Prosecutions DivisionOffice: (512) 463-3038Fax:

mX

I have probably concluded reviewing most matters related to Mr. Denholm's complaint. At Ithis point in time, there is not enough evidence to move forward with further legal action. -

hat being said, I have a few concerns: 1) Various requested items have simply gone missing. OProcedures 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 -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 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

public information lawsuit against harris co sheriff's office

Documents