D AV I D A .

E S C A M I L L A T R AN S AC T I O N S D I V I S I O N
COUNTY ATTORNEY
JOHN C. HILLE, JR., DIRECTOR
ST EPHE N H. CAPEL LE
F I R S T AS S IS T A NT BARBAR A J. WILSO N

J AMES W. COLL INS T ENLE Y A. AL DREDGE

EXECUT IVE ASS IST ANT
DANIE L BRADFORD
314 W. 11TH, STREET
GRANGE R BL DG., 5 TH FLOO R JENNIFER KR ABE R
A U S T I N , T E X AS 7 8 7 0 1
ANN-MARIE S HEEL Y
P. O. BOX 1748
A U S T I N , T E X AS 7 8 7 6 7 Me mber of the College
of the State Bar of Texas
(512) 854-9513
F AX: (512) 854 -4808

April 13, 2016

Hand Delivered
Mr. Justin Gordon, Division Chief
Office of the Attorney General of TexasOpen Records Division
P.O. Box 12548
Austin, Texas 78711-2548

Re: Request from John Hennan received on 03/23/2016 Supplemental Brief

(AG ID# 613695)

Dear Mr. Gordon:

On April 6, 2016, the Travis County Attorneys Office (TCAO) submitted a

letter to your office asking for a ruling on this request. Your office assigned AG ID#
613695 to this request. This is our supplemental brief for the ruling request. It explains
the specific exceptions in Government Code chapter 552, along with other statutes, that
we believe govern the responsibility of TCAO regarding the release of the requested
information. In his request, requestor seeks all of the contents of the TCAO file on
Trevor Titman, cause number C-1-CR-14-214858. Below is our supplemental brief
setting forth the exceptions to disclosure.

By copy of this letter, we are informing the requestor that we wish to withhold the
information requested and that we are asking for a decision from your office.

The responsive information is excepted from disclosure

pursuant to Curry v. Walker and under Government
Code Section 552.108.

Section 552.108 of the Government Code states in pertinent part:

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

with the detection, investigation, or prosecution of crime [is excepted
from required public disclosure] if:

(4) it is information that:

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 (A) is prepared by an attorney representing the state
in anticipation of or in the course of preparing
for criminal litigation; or

(B) reflects the mental impressions or legal

reasoning of an attorney representing the
state.

(b) An internal record or notation of a law enforcement agency or

prosecutor that is maintained for internal use in matters relating to law
enforcement or prosecution is excepted from the requirements of
Section 552.021 if:
.....
(3) the internal record or notation:

(A) is prepared by an attorney representing

the state in anticipation of or in the course of
preparing for criminal litigation; or

(B) reflects the mental impressions or legal

reasoning of an attorney representing the
state.

(c) This section does not except from [required public disclosure]
information that is basic information about an arrested person, an
arrest, or a crime.

In Curry v. Walker, 873 S.W.2d 379 (Tex. 1994), the Texas Supreme Court held
that a request for a county attorneys entire file is necessarily a request for work product
because the decision as to what to include in [the file] necessarily reveals the attorneys
thought processes concerning the prosecution or defense of the case. Curry, 873 S.W.2d
at 380 (quoting National Union Fire Insurance Company v. Valdez, 863 S.W.2d 458, 460
(Tex. 1993, orig. proceeding)).

In this instance, Requestor specifically asks for the contents of the TCAOs entire
file on Trevor Titman, in cause number C-1-CR-14-214858. This case being the only
information the TCAO possesses related to Mr. Titman, we believe that the request
essentially encompasses a request for the TCAOs entire prosecution file for Mr. Titman.
All of the requested information was created or assembled by a prosecutor in anticipation
of or in the course of preparing for criminal litigation. In addition, Curry provides that
the release of the requested information would reveal the mental impressions or legal
reasoning of prosecutors in the TCAO. Accordingly, we believe that the TCAO may
withhold the requested information pursuant to subsections (a)(4) and (b)(3) of section
552.108 of the Government Code. We have included representative samples of this
information for your review, marked as Curry.

To the extent that your office finds that Curry is not applicable, we assert in the
alternative that all notes, electronic notes of prosecutors, documents, drafts,

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correspondence, and other internal communications by TCAO prosecutors or TCAO
representatives are excepted from disclosure under subsections (a)(4) and (b)(3) because
they were prepared by TCAO or representatives of TCAO in anticipation of or in the
course of preparing for criminal litigation, and also contain the attorneys mental
impressions. We have included representative samples of this information for your
review, marked as Prosecutor Work-Product.

The requested information may also be withheld under

Government Code section 552.108(a)(2).

Government Code section 552.108 states in relevant part:

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

deals with the detection, investigation, or prosecution of crime is
excepted from [required public disclosure] if:

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

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

Here, the responsive information to the request may likewise be withheld because
it relates to the investigation and prosecution of a case that has been disposed of without
resulting in a conviction or deferred adjudication. The subject of the request was arrested
for Driving While Intoxicated (DWI), however, that charge was not filed by the TCAO.
Therefore, the investigation and prosecution of the charge of DWI did not result in a
conviction or deferred adjudication. Accordingly, we assert that the requested
information as it relates to the investigation and prosecution of cause number C-1-CR-14-
214858 may be withheld under Government Code section 552.108(a)(2). We have
included representative samples of this information for your review, marked as
108(a)(2).

In conclusion, we ask that you rule on whether the enclosed information must be
released to the requestor. If you have any questions, please contact me at (512) 854-9176
or by e-mail at ann-marie.sheely@traviscountytx.gov.

Sincerely,

Ann-Marie Sheely
Assistant County Attorney
c:

John Hennan
812 San Antonio Street, Suite 401
Austin, TX 78701
(via email to: john@hennanlaw.com, without enclosures)

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