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In re Smith County

Court of Appeals of Texas, Twelfth District, Tyler

June 30, 2017

IN RE: SMITH COUNTY, RELATOR SMITH COUNTY, Relator
v.
HON. JACK CARTER, Respondent

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          JAMES WORTHEN Justice.

         Smith County seeks a writ of mandamus directing the trial court to vacate its orders of April 17, 2017 and May 12, 2017, compelling disclosure of three closed sessions of the Smith County Commissioners Court.[1] We deny the petition for writ of mandamus as moot.

         Background

         On June 16, 2016, the previous Smith County judge, Joel Baker, was indicted for closing a regular meeting of the Smith County Commissioners Court to the public on the dates of July 8, 2014, July 29, 2014, and August 12, 2014, in violation of Chapter 551, Subchapter D, of the Texas Government Code. At these meetings, the commissioners court discussed the installation of speed cameras in county school zones by American Traffic Solutions (ATS). Baker executed a "professional services agreement" with ATS.

         Following the recusal of the duly elected Smith County district attorney, a Smith County district judge appointed "Assistant Attorney General Adrienne McFarland, or any other Assistant Attorney General that they designate" as criminal district attorney pro tem to handle the case. In August 2016, in his capacity as the criminal district attorney pro tem for Smith County, Daniel Brody, Assistant Attorney General for the State of Texas, received recordings of the three aforementioned commissioners court meetings that Baker had convened in closed session. On December 12, 2016, A Judgment of Plea of No Contest in Misdemeanor Cause was entered against Baker, who received thirty days "non report" deferred adjudication probation and a fine of $200. Baker had previously resigned as county judge.

         On March 24, 2017, Brody, in his capacity as an assistant attorney general for the State of Texas, received a request under the Public Information Act to turn over the recordings of the three closed commissioners court meetings. One week later, Brody sent the following electronic mail message to the presiding judge in the Baker case:

         Dear Hon. Jack Carter,

Good afternoon. Attached to this email is a motion I wanted to file with you, cc'ing defense counsel, related to a Public Information Act request the Office of the Attorney General received. In a "conflict of law" related issue, as part of the Joel Baker prosecution, our office is now in possession of Closed Meetings of Smith County Commissioners Court. A citizen has asked for copies of those relevant Closed Meetings that were a part of the case.
Normally we would comply with providing the requestor copies of all the permitted documents allowed to be turned over by law, under the Public Information Act, once the criminal matter is closed. Of course, however, TOMA[2] declares that it would be a crime to turn over the Closed Meetings without lawful authority and without the District Judge's permission. With this conflict in mind, and wanting to comply with the Public Information Act by turning over all permitted public documents without criminally violating the Open Meetings Act, I have attached a motion and order for your consideration.
If the Closed Meetings, or relevant portions of the Closed Meetings became public record, in compliance with TOMA, and as described in my motion, then the lawful authority vested in your Order of the Court would permit the OAG to comply with the Public Information Act request without violating any other laws.
I am available if you have any additional questions.
Regards,
Daniel Brody
Assistant Attorney General
Texas Attorney General's Office
Criminal Prosecutions Division
White Collar Crime & Public Integrity Section

         In reply, Judge Carter expressed the belief that his plenary power in the case had ended, but that he might be able to enter further orders in the case if Presiding Judge Mary Murphy of the First Administrative Judicial Region reassigned him to Baker's case. On April 7, 2017, Judge Murphy signed an order assigning Judge Carter to the case. After Brody filed a motion, Judge Carter entered the following order:

IN THE 114th JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS
THE STATE OF ...

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