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Reger v. The Attorney General of Texas

Court of Appeals of Texas, Third District, Austin

November 17, 2017

Russell Jay Reger, Appellant
v.
The Attorney General of Texas; and Lance Kutnick, Assistant Attorney General Criminal Prosecutions Division, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-15-001838, HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Justices Puryear, Field, and Bourland Affirmed

          MEMORANDUM OPINION

          SCOTT K. FIELD, JUSTICE

         Russell Jay Reger, an inmate confined in the Institutional Division of the Texas Department of Criminal Justice appearing pro se, sued the Attorney General of the State of Texas and Lance Kutnick, Assistant Attorney General Criminal Prosecutions Division (collectively, the Attorney General) in Travis County district court seeking a writ of mandamus to compel them to direct two state agencies to refrain from refusing to accept or comply with his request for records pursuant to the Texas Public Information Act (PIA). See Tex. Gov't Code §§ 552.001-.353; .028(a) (governmental body is not required to accept or comply with request for information from individual who is imprisoned or confined in correctional facility). Reger also sought declaratory and injunctive relief to compel the Attorney General to (1) direct the Tarrant County District Attorney to issue written responses to his PIA requests, (2) advise the Tarrant County Community Supervision and Corrections Department that the PIA does not prohibit the release of certain of its files, and (3) advise the Tarrant County District Attorney that PIA section 552.028 does not abrogate the obligation to comply with the disclosure duties imposed by Texas Code of Criminal Procedure articles 2.01 and 39.14. See Tex. Code Crim. Proc. arts. 2.01 (district attorneys shall not suppress facts or secrete witnesses capable of establishing innocence of accused); 39.14(h)-(m) (requirements relating to obligation to disclose exculpatory, impeachment, or mitigating information in state's possession, custody, or control that tends to negate guilt of defendant or to reduce punishment for offense charged for offenses committed on or after January 1, 2014). The district court dismissed Reger's claims for lack of subject-matter jurisdiction. We will affirm.

         BACKGROUND

         Prior Proceedings

         A jury convicted Reger of murder in April 1996 and sentenced him to life imprisonment. The conviction was affirmed on appeal. See Reger v. State, No. 02-96-00217-CR (Tex. App.-Fort Worth July 31, 1997, pet. ref'd) (not designated for publication). In 1998, Reger filed an initial application for writ of habeas corpus under Texas Code of Criminal Procedure article 11.07, which the court of criminal appeals denied without a written order. See Ex parte Reger, No. WR-38, 770-01 (Tex. Crim. App. Nov. 4, 1998). In 2005, Reger filed a motion for DNA testing, which the trial court denied after a hearing. See Tex. Code Crim. Proc. art. 64.01. The trial court's ruling was affirmed. See Reger v. State, 222 S.W.3d 510 (Tex. App.-Fort Worth 2007, pet. ref'd), cert. denied, 552 U.S. 1117 (2008). From 2004 to 2007, Reger and his agents[1] requested, pursuant to the PIA, that the Tarrant County District Attorney and Dalworthington Gardens Department of Public Safety Detective Jerry S. Vennum produce fourteen color photographs that Reger and his agents asserted had been taken during the course of the criminal investigation preceding his 1996 murder trial. See Reger v. Criminal Dist. Attorney of Tarrant Cnty., No. 02-09-00363-CV, 2011 WL 3546631 (Tex. App.-Fort Worth Aug. 11, 2011, pet. denied) (mem. op.). The District Attorney's office responded by asserting that the PIA did not require compliance because Reger was imprisoned in a correctional facility. See Tex. Gov't Code § 552.028(a). In addition, the Dalworthington Gardens Department of Public Safety responded that the fourteen photographs were no longer in its custody and that it did not know their whereabouts. See Reger, 2011 WL 3546631, at *1. Reger filed a petition for writ of mandamus against the Tarrant County District Attorney and Vennum asking the district court to order them to make the photographs available. The Tarrant County District Attorney and Vennum moved to dismiss Reger's suit as frivolous or malicious under chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 14.003(b)(2). The district court granted the motion to dismiss, and the court of appeals affirmed. See Reger, 2011 WL 3546631, at *9.[2]

         Underlying Proceedings

         In June 2014, Reger made a request under the PIA to the Tarrant County Community Supervision and Corrections Department (the Corrections Department) for copies of any presentencing investigation reports, psychiatric or psychological evaluation reports, and drug or alcohol abuse evaluation reports on William Matthew Storey, the person Reger was convicted of murdering. The Corrections Department responded to Reger's request by stating that specific records regarding individuals on probation and subject to direct supervision of a court are not subject to the PIA because such records are held on behalf of the judiciary. See Tex. Gov't Code § 552.003(1)(B) (for purposes of PIA "governmental body" does not include judiciary). Reger then filed a complaint with the Tarrant County District Attorney alleging that the Corrections Department had violated the PIA. See id. § 522.3215(e) (person who claims to be victim of violation of PIA by governmental body may file complaint with district attorney of county in which governmental body is located). According to Reger, the Tarrant County District Attorney did not notify him within 31 days of its determination of whether the violation alleged in Reger's complaint was committed and whether any action would be brought against the Corrections Department. See id. § 552.3215(g) (before 31st day after complaint is filed district attorney shall determine whether violation alleged was committed and whether action will be brought against governmental body and must notify complainant in writing of those determinations).

         Reger then filed a complaint with the Attorney General. See id. § 552.3215(i) (if district attorney determines not to bring action against governmental body complainant is entitled to file complaint with attorney general who must determine within 31 days whether violation was committed and whether action will be brought against governmental body and must notify complainant in writing of those determinations). Kutnick, Assistant Attorney General Criminal Prosecutions Division, responded by letter to Reger's complaint. Kutnick's letter stated that the Attorney General had determined that the information requested of the Corrections Department, which were records held on behalf of the judiciary, was not subject to the PIA and, additionally, that the Corrections Department was not required to accept or comply with Reger's request since he was an incarcerated individual. See id. §§ 552.003(1)(B), .028(a). The Attorney General stated that he would not take further action on the complaint and returned the complaint to Reger. See id. § 552.3215(h) (if attorney general determines not to bring action he shall include statement of basis for that determination and return complaint to complainant).

         In August 2014, Reger made a request under the PIA to the City of Dalworthington Gardens and its Department of Public Safety (Dalworthington Gardens) for (1) copies of any 911 calls or police reports about Storey's relatives made by residents living in or around the location Storey was killed and (2) any protective orders sought by any such residents against Storey's relatives.[3] Dalworthington Gardens responded to Reger's request by stating that it was refusing to accept his request because he was confined in a correctional facility. See id. § 552.028(a). Reger then filed a complaint with the Tarrant County District Attorney alleging that Dalworthington Gardens had violated the PIA. According to Reger, the Tarrant County District Attorney again did not notify him within 31 days of its determination of whether the violation alleged in Reger's complaint was committed and whether any action would be brought against Dalworthington Gardens. Reger then filed another complaint with the Attorney General. Kutnick, on behalf of the Attorney General, responded to Reger's complaint by letter informing him that Dalworthington Gardens had not violated the PIA by refusing to accept a PIA request from an incarcerated individual. The Attorney General stated that it would not take further action on the complaint and returned the complaint to Reger.

         Rather than filing a claim under the Uniform Declaratory Judgments Act or seeking mandamus relief against either Dalworthington Gardens or the Corrections Department, Reger filed a petition for writ of mandamus against the Attorney General. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (UDJA); Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 382-83 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (PIA requestors may seek relief from governmental entity's refusal to produce information by directly filing declaratory judgment action under UDJA against that entity); see also City of Garland v. Dallas Morning News, 22 S.W.3d 352, 357 (Tex. 2000) (recognizing that persons seeking information under the PIA have sought mandamus relief against governmental body that refused to provide requested information); Harrison v. Vance, 34 S.W.3d 660, 663 (Tex. App.-Dallas 2000, no pet.) (mandamus is proper vehicle to seek disclosure of information from district attorney but relief not available because district attorney's decision whether to provide requested information to incarcerated individual is discretionary, not ministerial, act).[4] The Attorney General filed a plea to the jurisdiction arguing that Reger's suit was barred by sovereign immunity. Alternatively, the Attorney General moved to dismiss Reger's suit as frivolous or malicious. See Tex. Civ. Prac. & Rem. Code §§ 13.001 (court in which affidavit of inability to pay costs had been filed may dismiss action on finding that action is frivolous or malicious), 14.003 (court may dismiss action filed by inmate who files affidavit or unsworn declaration of inability to pay costs if it finds that claim is frivolous or malicious). After a hearing, the district court granted the Attorney General's plea to the jurisdiction and dismissed the case for lack of subject-matter jurisdiction. The district court expressly declined to make a finding or otherwise rule on the Attorney General's motion to dismiss Reger's petition on the ground that it was frivolous or malicious.[5] Reger then perfected this appeal.

         DISCUSSION

         Standard ...


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