in Re Matthew T. Hinterlong

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-016-CV

IN RE MATTHEW T. HINTERLONG,

RELATOR

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ORIGINAL PROCEEDING

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OPINION

ON REHEARING

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We deny the motions for rehearing

filed by relator and real parties in interest, withdraw our prior opinion and

judgment and substitute the following opinion.

I. Introduction

Relator Matthew T. Hinterlong seeks

mandamus relief from a trial court order denying his motion to compel discovery

of the identity of, and other information relating to, a student who provided a

crime stoppers tip to Arlington Martin High School (AMHS). The tip resulted in

Hinterlong's expulsion and placement in alternative school. In two issues,

Hinterlong contends that the trial court abused its discretion in ruling the

information privileged and not subject to discovery because: (1) AMHS's crime

stoppers program does not qualify as a crime stoppers organization under section

414.001(2) of the Texas Government Code; (2) even assuming AMHS's program

qualifies as a crime stoppers organization, the communication allegedly made by

the student was not a crime stoppers tip; and (3) the crime stoppers privilege

set forth in section 414.008 of the Texas Government Code is unconstitutional as

applied in this case because it violates the open courts provision of the Texas

Constitution. Because we hold that the crime stoppers privilege is

unconstitutional as applied in this case, we conditionally grant Hinterlong's

petition for writ of mandamus.

II. Background

Facts

In October 1999, Hinterlong was a

senior at AMHS, an honors student, and captain of the varsity tennis team. On

October 25, 1999, during lunch, a student informant provided information to an

AMHS teacher, Rynthia Clements, that Hinterlong had "either drugs or

alcohol in the trunk of his vehicle" on school property. The student

indicated Hinterlong was storing alcohol for other students for the upcoming,

out-of-town regional tennis tournament and that, therefore, the matter needed

quick attention. Clements did not recall the student informant telling her how

he or she learned this information. Clements had no personal knowledge of

Hinterlong being associated with either drugs or alcohol.

Although AMHS had a crime stoppers

committee and particular procedures existed for making a crime stoppers tip,

Clements was not a person designated to receive tips and did not serve on or

sponsor the crime stoppers committee. She had personally never been involved in

any other crime stoppers tip. Upon receiving the tip regarding Hinterlong,

Clements hand-wrote a note to an assistant principal, Mr. Henson, advising him

of the tip. Clements did not sign her name to the note, but instead obtained

permission from another teacher, Meredith Hightower, to sign Hightower's name to

the note. Clements said she did this to protect the student tipster's identity

and to ensure that the matter would be given immediate attention. She said that

she had never before used another teacher's name to report alleged student

misconduct.

Hightower explained that she

allowed Clements to use her name on the note because Clements said it was an

emergency, Clements felt the tip would be acted upon immediately if Hightower's

name was on it, and Clements believed it necessary to sign Hightower's name to

protect the identity of the student informant. Hightower knew of no other

instance at AMHS where a teacher had used another teacher's name to report

student misconduct. Although Hightower had never been approached by a student

with a crime stoppers tip, she said students were told during AMHS's daily

announcements simply to report crime stoppers tips to someone in authority.

Teachers were instructed to forward such tips to someone who could respond to

the tip.

Dr. Terri Lindsey, an assistant

principal and the AMHS crime stoppers committee sponsor, testified that students

could make crime stoppers tips to any teacher. Typically, however, the teacher

would then make a written crime stoppers tip to either Lindsey or to the crime

stoppers committee. Clements's note did not go to Lindsey or to the crime

stoppers committee. Instead, it was forwarded to vice principal Sherion Clark.

Clark received the note purportedly

signed by Hightower and, because she knew Hinterlong had tennis during his last

class period, she went to the tennis courts to find Hinterlong. She informed

Hinterlong of the tip and explained that she was required to follow up.

Hinterlong stated, "Sure, no problem," and handed her his keys.

Clark searched the back portion of

Hinterlong's Blazer, which contained an "abundance of things," such as

large speakers, an athletic bag, a tennis racket bag, clothing items, and an

eight-to-twelve ounce Ozarka water bottle. In fact, the back of Hinterlong's

Blazer was so full that Hinterlong stood by Clark as she rummaged through the

items and "as things were falling down, you might say, out of the back . .

. he reached up and kind of kept them from falling out on me or on the

ground."

The Ozarka water bottle caught

Clark's attention because the liquid remaining in the bottle was brownish, the

color of cola. There was very little liquid in the bottle, just enough to cover

the bottom of the bottle--a "thimble full." Clark opened the bottle

and smelled alcohol. Hinterlong's tennis coach arrived, smelled the liquid, and

also stated that it smelled like alcohol. Clark completed her search of

Hinterlong's Blazer, but discovered no additional alcohol or drugs.

(1)

Clark escorted Hinterlong to her

office. On the way there, she and Hinterlong had a general conversation. While

she does not remember Hinterlong using the phrase "set up," she

remembered Hinterlong saying that the incident "may involve something

else." When they arrived at her office, Clark called Hinterlong's parents

and the school's resource officer. The resource officer issued Hinterlong a

citation for minor in possession of alcohol.

Two days later, on October 27,

Clark conducted a Level I informal conference with Hinterlong and his parents.

(2) Hinterlong denied that the Ozarka water bottle was his. He said

that he was surprised that the bottle was found in his Blazer because he never

drinks Ozarka water and does not know anyone who does. Hinterlong and his

parents expressed their belief that Hinterlong had been set up by other

students.

Hinterlong's parents explained that

in July 1999 they took Hinterlong on a trip out of state to visit several

colleges. A friend of Hinterlong's who had a key to the Hinterlongs' home

allowed several other students to trespass and party at the home. When the

Hinterlongs returned from their trip, they immediately filed a report with the

Dalworthington Gardens Police Department. A memo provided by the Hinterlongs to

the police a few days after their return indicates that the trespassing students

ordered a pornographic movie, caused approximately $300 damage to the swimming

pool, and stole keys to two vehicles, later identified as Hinterlong's Blazer

and Hinterlong's brother's car. As a result of the incident, thirteen AMHS

students were ticketed or reprimanded by the police. The case remained open at

the time the tip was reported against Hinterlong because one of the students was

contesting the charges.

At the conference, the Hinterlongs

provided Clark with a copy of the July 1999 police report. They explained that

the AMHS students ticketed for trespassing at their house had reason to be

vindictive towards them. They indicated that the tip came at a suspicious time:

at a crucial point in Hinterlong's extracurricular activities and three days

before the regional tennis tournament set for October 28. Additionally, Mr.

Hinterlong stated that his son had not driven the Blazer all weekend. He said

that he personally saw the back of the Blazer and did not see the Ozarka water

bottle.

However, based on the Ozarka water

bottle found in Hinterlong's vehicle and the presumption that the thimble full

of liquid it contained was alcohol, Clark disciplined Hinterlong in accordance

with the school's "zero tolerance" policy. At the conclusion of the

informal conference, Clark recommended Hinterlong's removal from AMHS and

placement in an alternative school for the remainder of the semester. Clark's

typed report of the informal conference concludes:

With evidence found in the vehicle, my decision is based on the following

board policy, AISD Student Code of Conduct, and the MHS Student Handbook:

A student shall be removed from class and placed in an alternative education

program if the student commits the following on or within 300 feet of school

property, as measured from any point on the school's real property boundary

line, or while attending a school sponsored or school related activity: . .

. possesses . . . an alcoholic beverage.

Clark said Hinterlong's possession

of the Ozarka water bottle in his Blazer mandated his expulsion under this

policy. Clark's discipline of Hinterlong also included the requirement that he

complete intervention counseling prior to returning to AMHS.

On October 28, a Level II appeal

conference was held with the building principal, Mr. Jacoby. At that conference,

Jacoby noted that Hinterlong's parents presented "compelling"

information regarding a possible "set up." However, Jacoby upheld

Hinterlong's expulsion from AMHS and placement in alternative school, citing

"concerns about the operation of the crime stoppers program, the fact the

windows on the Blazer are dark, and the parent having driven the car over the

weekend." For these reasons, Jacoby "made the decision to support the

Level I decision made by Mrs. Clark because Matt did have possession of alcohol

on school property."

Following the appeal conference,

Hinterlong's parents provided to AMHS a list of names of the students who were

ticketed or reprimanded in connection with the July trespassing incident at

their home. The Hinterlongs indicated that more students could be involved;

however, because the case was still open, police refused to verify the list of

names. Several months later, the list was shown to Clements, and she denied that

the student informant's name was on the list. No crime stoppers reward money was

ever requested or paid to the student informant regarding the Hinterlong tip.

Hinterlong was prosecuted in

municipal court. A jury acquitted him of the minor in possession of alcohol

charge because the prosecution failed to produce the expert who tested the

contents of the Ozarka water bottle. Following his acquittal, Hinterlong filed

suit against Arlington ISD, Rynthia Clements, and John Doe or Jane Roe Number 1

and John Doe or Jane Roe Number 2 (the student informant and the person or

persons who planted the Ozarka water bottle in his vehicle) for malicious

prosecution, defamation, and negligence.

Hinterlong sought to discover the

identity of, and other information relating to, the student informant. Real

parties in interest, (3) asserting the statutory

crime stoppers privilege, refused to answer requests for disclosure and

interrogatories seeking the name, address, and telephone number of the student

tipster. Real parties in interest also refused to produce documents "that

would disclose or suggest the identity of" the informant. Clements likewise

refused in her deposition to disclose the identity of the student tipster.

Finally, Hinterlong filed a motion

to compel discovery of this information and the relevant documents. Hinterlong's

motion to compel discovery raised in the trial court the same issues he raises

in this original proceeding: that the crime stoppers privilege does not apply

because AMHS's crime stoppers program is not a crime stoppers organization; that

the "tip" was not a true crime stoppers tip; and that the statutory

crime stoppers privilege as applied to him unconstitutionally violates the Texas

Constitution's open courts provision. Following an evidentiary hearing, the

trial court found that AMHS's crime stoppers program is a valid crime stoppers

organization, that the AMHS's crime stoppers organization falls within the

statutory definition of a crime stoppers organization, and that the tip made

regarding Hinterlong was a privileged crime stoppers communication. The trial

court did not make an express ruling on Hinterlong's as-applied challenge to the

constitutionality of the crime stoppers privilege under the Texas Constitution's

open courts provision. (4) The trial court denied

Hinterlong's motion to compel discovery, ruling that the student's identity was

privileged, and therefore exempt from discovery, under the crime stoppers

statute. It is from this order that Hinterlong seeks mandamus relief.

III. Due Diligence

We first address real parties in

interest's contention that Hinterlong did not exercise due diligence in seeking

mandamus relief. Real parties in interest urge us to deny Hinterlong's petition

for writ of mandamus on the ground that he has provided no explanation for his

lack of diligence in waiting four and one-half months to file his petition for

writ of mandamus. Hinterlong, however, claims that he has provided a reasonable

explanation for the delay and that, in any event, real parties in interest have

shown no harm resulting to them from the delay.

Although mandamus is not an

equitable remedy, its issuance is largely controlled by equitable principles. In

re Users Sys. Servs., Inc. , 22 S.W.3d 331, 337 (Tex. 1999) (orig.

proceeding); Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex.

1993) (orig. proceeding); Bailey v. Baker , 696 S.W.2d 255, 256 (Tex.

App.--Houston [14 th Dist.] 1985, orig. proceeding). One such

principle is that "[e]quity aids the diligent and not those who slumber on

their rights." Rivercenter Assocs. , 858 S.W.2d at 367 (quoting Callahan

v. Giles , 137 Tex. 571 , 155 S.W.2d 793, 795 (1941) (orig. proceeding)).

Thus, it is well-settled that mandamus relief may be denied where a party

inexplicably delays asserting its rights. See , e.g. , Rivercenter

Assocs. , 858 S.W.2d at 367 ; Bailey , 696 S.W.2d at 256 .

In determining if a relator's delay

in seeking a writ of mandamus is a barrier to the issuance of the writ, a court

may analogize to the doctrine of laches, which bars equitable relief. Sanchez

v. Hester , 911 S.W.2d 173, 177 (Tex. App.--Corpus Christi 1995, orig.

proceeding). A party asserting the defense of laches must show both an

unreasonable delay by the other party in asserting its rights and harm resulting

to it because of the delay. In re Bahn , 13 S.W.3d 865, 871 (Tex.

App.--Fort Worth 2000, orig. proceeding); Sanchez , 911 S.W.2d at 177

(citing Rogers v. Ricane Enters ., 772 S.W.2d 76, 80 (Tex. 1989)).

Here, counsel for Hinterlong filed

an affidavit providing a reasonable explanation for the delay. Counsel's

affidavit explains that at the conclusion of the August 16, 2001 hearing on

Hinterlong's motion to compel, he asked the official court reporter, who was

present, to prepare the record from the hearing. He paid for the reporter's

record, but did not receive it until late October 2001.

By that time, real parties in

interest had filed their own motion to compel discovery seeking information from

Hinterlong that he contended was attorney-work-product privileged. A hearing on

this motion was set for November 8, 2001. Hinterlong's counsel explained that he

wanted a ruling on that motion before he filed the petition for writ of mandamus

so he could include this discovery issue in his petition, if necessary.

Additionally, lead counsel for

Arlington ISD and Clements requested a brief moratorium on activity in the case

because her father passed away. Hinterlong's counsel agreed to accommodate her

and waited a few extra weeks to file the petition for writ of mandamus.

Hinterlong's counsel now asserts that Arlington ISD and Clements cannot use the

delay they requested against him. The trial court denied real parties in

interest's motion to compel by order dated December 20, 2001. Hinterlong filed

his petition for writ of mandamus with this court on January 14, 2002.

Under these facts, we conclude that

Hinterlong has provided a reasonable explanation for his delay in seeking

mandamus relief. See, e.g. , In re Bahn , 13 S.W.3d at 871

(recognizing relator provided reasonable explanation for three-month delay in

filing petition for writ of mandamus). Further, real parties in interest have

failed to show how they have been harmed by the delay. Id. In fact,

real parties in interest requested a delay in the case and also did not oppose

Hinterlong's motion for temporary stay of the underlying case pending the

outcome of this mandamus proceeding. Accordingly, we hold that Hinterlong is not

barred from seeking mandamus relief.

IV. Availability of

Mandamus Relief

Mandamus is an extraordinary remedy

and will issue only if the trial court has committed a clear abuse of discretion

and the relator has no adequate remedy at law. Tilton v. Marshall , 925

S.W.2d 672, 682 (Tex. 1996) (orig. proceeding); Walker v. Packer , 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court clearly abuses its

discretion if "it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law." Walker , 827

S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals , 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding)). A trial court has no discretion in

determining what the law is or applying the law to the facts. Thus, a clear

failure to analyze or apply the law correctly will constitute an abuse of

discretion and may result in appellate reversal by extraordinary writ. Walker,

827 S.W.2d at 840 .

Remedy by appeal in a discovery

mandamus is not adequate where a party is required "to try his lawsuit,

debilitated by the denial of proper discovery, only to have that lawsuit

rendered a certain nullity on appeal." Id. at 841 (quoting Jampole

v. Touchy , 673 S.W.2d 569, 576 (Tex. 1984) (orig. proceeding)). Remedy by

appeal is likewise not adequate where the trial court's discovery order

disallows discovery that cannot be made a part of the appellate record, thereby

denying the reviewing court the ability to evaluate the effect of the trial

court's error. In re Colonial Pipeline Co. , 968 S.W.2d 938, 941 (Tex.

1998) (orig. proceeding); Walker , 827 S.W.2d at 843-44 . Remedy by

appeal may also be inadequate when it is insufficient to protect a specific

constitutional right asserted by relator. See Tilton , 925

S.W.2d at 682 .

V. Crime Stoppers

Privilege

Generally, privileged matters are

not discoverable. In re Anderson, 973 S.W.2d 410, 411 (Tex.

App.--Eastland 1998, orig. proceeding). The party claiming a privilege has the

burden to establish that privilege. Jordan v. Court of Appeals, 701

S.W.2d 644, 648-49 (Tex. 1985) (orig. proceeding). Thus, in considering whether

an abuse of discretion occurred, we must determine if Arlington ISD, as the

party asserting the privilege, discharged its burden of proof as a matter of

law. See In re WHMC , 996 S.W.2d 409, 411 (Tex. App.--Houston [14 th

Dist.] 1999, orig. proceeding).

A. Crime Stoppers

Organization

In his first issue, Hinterlong

challenges the trial court's finding that the student informant's identity is

privileged. Hinterlong first contends that no privilege exists because the AMHS

crime stoppers program is not a "crime stoppers organization" as

defined by the crime stoppers statute.

Chapter 414 of the Texas Government

Code defines a "crime stoppers organization" as:

(A) a private, nonprofit organization that is operated on a local or statewide

level, that accepts and expends donations for rewards to persons who report to

the organization information about criminal activity and that forwards the

information to the appropriate law enforcement agency; or

(B) a public organization that is operated on a local or statewide level, that

pays rewards to persons who report to the organization information about

criminal activity, and that forwards the information to the appropriate law

enforcement agency.

Tex. Gov't. Code Ann. §

414.001 (2)(A), (B) (Vernon Supp. 2003).

Hinterlong argues that the AMHS

program does not qualify as a crime stoppers organization under subsection (B)

because it is not a "public organization," even though AMHS is a

public school. He also argues that the AMHS crime stoppers program does not

qualify as a crime stoppers organization under subsection (A) because it does

not accept or receive donations; rather, all its tip reward money comes from the

Tarrant County crime stoppers. Because we determine that AMHS's crime stoppers

program is a public organization under subsection (B), we need not consider

Hinterlong's argument that the program does not receive or accept donations as

required under subsection (A).

The statute does not define the

term "public organization," so Hinterlong cites to common definitions

of the terms "public" and "organization." See Tex.

Gov't. Code Ann. § 311.023 (Vernon 1998); City of Dallas v. Cornerstone

Bank, N.A., 879 S.W.2d 264, 270 (Tex. App.--Dallas 1994, no writ) (both

recognizing that words in statutes are given ordinary meanings unless they are

defined by the statute, used regarding particular trade or subject matter, or

constitute a term of art). The common definitions provided by Hinterlong,

however, demonstrate that the AMHS program is a public organization.

Citing Black's Law Dictionary,

Hinterlong urges us to define the term "public" as "proceeding

from, relating to, or affecting the whole body of people . . . relating to or

affecting the whole people of a . . . whole community . . . ." Hinterlong

relies upon a broad definition of the term "organization," which

includes "two or more persons having a joint or common interest . . .

." Here, the entire student body at AMHS is the "community" or

"body of people" the crime stoppers program relates to and affects,

and the AMHS crime stoppers program is comprised of two or more persons with a

common interest. Therefore, utilizing the common definitions urged by

Hinterlong, the AMHS program is a "public organization" that qualifies

as a crime stoppers organization under subsection (B).

Moreover, several campus crime

stoppers programs, such as the one established at AMHS, are set up by, and

operate under, the Tarrant County crime stoppers program. AMHS is therefore

considered a participating member of the Tarrant County crime stoppers

organization. Hinterlong argues, however, that section 414.001(2) does not

confer crime stoppers status on the AMHS program simply because it is acting

under the Tarrant County program. He cites no authority for this proposition,

and the statute does not support such an interpretation. The statute defines a

"crime stoppers organization" as a public organization, such as the

Tarrant County program in which AMHS participates, and does not limit the number

of subgroups that may participate under the umbrella of the local or statewide

crime stoppers organization. We hold that the trial court did not abuse its

discretion in determining that the AMHS crime stoppers program meets the

statutory definition of a crime stoppers organization.

B. Crime Stoppers

Tip

Hinterlong next contends that, even

if AMHS crime stoppers qualifies as a crime stoppers organization, nonetheless

the communication by the student informant was not a privileged "crime

stoppers tip" under section 414.008. Section 414.008 provides, in pertinent

part:

(a) Evidence of a communication between a person submitting a report of a

criminal act to the council or a crime stoppers organization and the person

who accepted the report on behalf of the council or organization is not

admissible in a court or an administrative proceeding.

(b) Records of the council or a crime stoppers organization concerning a

report of criminal activity may not be compelled to be produced before a

court or other tribunal except on the motion of a criminal defendant to

the court in which the offense is being tried that the records or report

contains evidence that is exculpatory to the defendant in the trial of that

offense.

Tex. Govt. Code Ann. § 414.008 (a),

(b) (emphasis added). Unauthorized disclosure of crime stoppers privileged

information constitutes an offense:

(a) A person who is a member or employee of the Council or who accepts a

report of criminal activity on behalf of a Crime Stoppers Organization commits

an offense if the person intentionally or knowingly divulges to a person not

employed by a law enforcement agency the content of a report of a criminal act

or the identity of the person who made the report without the consent of the

person who made the report.

Id. § 414.009(a).

Hinterlong claims the student

informant's tip was not a valid crime stoppers tip because: the student did not

communicate the alleged tip to a person designated or authorized to receive

crime stoppers tips; no evidence exists that the student intended to make a

crime stoppers tip; and the AMHS crime stoppers committee did not establish a

file on the student's alleged tip or maintain any information regarding the tip.

In short, Hinterlong argues that no privilege exists because the proper crime

stoppers tip procedure was not followed in this case. We address these arguments

in turn.

AMHS's student handbook and

numerous written crime stoppers flyers indicate that students may report

information regarding illegal activities to Dr. Terri Lindsey, who is an

assistant principal and a faculty sponsor of the AMHS crime stoppers committee,

or place an anonymous call to a specified telephone number. Hinterlong points

out that the student here did not follow either of these procedures, but instead

communicated the alleged tip to a teacher, Clements, during lunch. Lindsey

testified, however, that students could go to any teacher to make a crime

stoppers tip and that students were not restricted to reporting tips to only

certain individuals. Additionally, although the student handbook and the flyers

set forth several alternative ways that a student may make a crime

stoppers tip, the materials do not indicate these are the exclusive

ways to make a report. Thus, while Hinterlong correctly asserts that the student

handbook and written flyers set forth crime stoppers tip reporting procedures

that were not followed by the student here, Lindsey's testimony that a student

could make a tip to any teacher created a fact issue concerning whether the

information provided by the student about Hinterlong was properly reported. We

will not resolve disputed fact issues in a mandamus proceeding. See In re

Ford Motor Co. , 988 S.W.2d 714, 722 (Tex. 1998) (orig. proceeding).

Likewise, the statute itself does

not mandate reporting to only particularized persons to invoke the crime

stoppers privilege. To the contrary, both section 414.008 and section 414.009

characterize the disclosure triggering the privilege as one to a person

"who accepts a report of criminal activity on behalf of a crime stoppers

organization." Tex. Gov't Code Ann. §§ 414.008 - .009. Here, evidence

exists that Clements had authority to accept the student informant's tip on

behalf of the AMHS crime stoppers program. Accordingly, we hold that the trial

court did not abuse its discretion in determining that the student informant

made the tip to an appropriate school official, invoking section 414.008's crime

stoppers privilege.

Moving to Hinterlong's argument

that a student informant must intend to make a crime stoppers tip in

order to trigger the crime stoppers privilege, we find nothing in the statute

superimposing an intent requirement on the privilege. The statute protects

records of the crime stoppers organization generated after a person makes

"a report of a criminal act." Id . § 414.008(a), (b). The

intent to make a specific crime stoppers tip, as opposed to a report of a

criminal act generally, is not required.

We also reject Hinterlong's claim

that the tip at issue was not a crime stoppers tip because the AMHS crime

stoppers committee failed to create a file or maintain information relating to

the tip. Again, to invoke the privilege, the statute requires only that a person

submit a report of a criminal act to a person who accepts the report on behalf

of a crime stoppers organization. Id. Here, the student informant made

a report of what he or she believed to be a criminal act to an AMHS teacher and,

according to Lindsey, all AMHS teachers are authorized to accept such

information on behalf of the AMHS crime stoppers organization. We hold that the

trial court did not abuse its discretion in determining that the report made by

the student informant in this case constituted a crime stoppers tip, invoking

section 414.008's crime stoppers privilege.

Hinterlong also contends that

disclosure of the identity of the student informant by real parties in interest

is mandated by the rules of evidence and civil procedure. He contends that

disclosure of the identity of a person with knowledge of relevant facts

is required under rules 192.3(c),(i) and 192.5(c)(3) of the Texas Rules of Civil

Procedure and rule 501 of the Texas Rules of Evidence even if that person made

nondiscoverable, privileged communications. Tex. R. Civ. P. 192.3(c),(i),

192.5(c)(3); Tex. R. Evid. 501.

Rule 192.3, governing the scope of

discovery, provides: "[i]n general, a party may obtain discovery regarding

any matter that is not privileged and is relevant to the subject matter

of the pending action." Tex. R. Civ. P. 192.3(a) (emphasis added). While

the identity of a potential party or witness's identity is generally

discoverable, section 414.009 of the crime stoppers statute specifically

prohibits disclosure of the identity of a crime stoppers tipster. Tex. Gov't

Code Ann. § 414.009 . Consequently, the identity of a crime stoppers tipster is

privileged and beyond the scope of relevant, nonprivileged discovery authorized

by 192.3. (5) See Tex. R. Civ. P.

192.3(a).

We have addressed each of

Hinterlong's arguments claiming that the crime stoppers privilege is not

applicable to the present facts; therefore, we overrule his first issue.

VI. Open Courts

Violation

In his second issue, Hinterlong

challenges the constitutionality of Texas Government Code section 414.008 as

applied to him in the present case. Specifically, he claims that the statutory

crime stoppers privilege, applied here to prevent him from discovering the

identity of the student informant, violates the open courts provision of the

Texas Constitution. See Tex. Const. Art. I,§ 13.

Real parties in interest contend

that the crime stoppers statute has already been held to be constitutional in Thomas

v. State, 837 S.W.2d 106, 113 (Tex. Crim. App. 1992). At the time the Court

of Criminal Appeals decided Thomas , the crime stoppers statute provided

no exception to the crime stoppers confidentiality privilege set forth in

section 414.008. See Act of April 30, 1987, 70 th Leg., R.S.,

ch. 147, §1, 1987 Tex. Gen. Laws 316 , 383 (amended 1993, 1997, 1999) (current

version at Tex. Gov't Code Ann. § 414.008 (Vernon Supp. 2002)). Thomas involved

a criminal defendant's Sixth Amendment Confrontation Clause challenge and

Fourteenth Amendment due process challenge to the constitutionality of the then

existing crime stoppers statute. Thomas, 837 S.W.2d at 109-10 . The

court of criminal appeals recognized that "the confidentiality provisions

of the crime stoppers statute . . . reach too far . . . . Denial of access to

information which would have a reasonable probability of affecting the outcome

of a defendant's trial abridges a defendant's due process rights and undermines

the court's duty to vindicate Sixth Amendment rights." Id. at 112 .

Consequently, after balancing the defendant's constitutional rights with the

State's interest in fostering law enforcement, the court ordered the trial court

to review the crime stoppers information in camera and to determine whether any

of the information was material. Id . at 114. Thus, the court of

criminal appeals in Thomas determined that the crime stoppers

confidentiality privilege was unconstitutional and did

abridge Thomas's due process and Sixth Amendment rights unless the trial

court, in violation of the then existing statutory crime stoppers privilege,

reviewed the crime stoppers information in camera to determine whether it

contained Brady material.

In response to the court of

criminal appeals' decision in Thomas , the legislature amended the

statute. In 1993, after the 1992 Thomas decision, the legislature

codified the Thomas opinion's in camera review procedure. See

Act of May 26, 1993, 73 rd Leg., R.S., ch. 711, § 1, 1993 Tex. Gen.

Laws 2787 , 2787 (amended 1997, 1999) (current version at Tex. Gov't Code Ann. §

414.008 (Vernon Supp. 2003)). Under the procedure now set forth in the statute,

a criminal defendant may file a motion asserting that the crime stoppers

privileged report or information contains exculpatory material. Tex. Gov't. Code

Ann. § 414.008 (b). The trial court may then subpoena the relevant records,

review them in camera, determine whether they contain evidence exculpatory to

the defendant, and present to the defendant any exculpatory information in a

form not requiring the disclosure of the identity of the tipster unless required

by the state or federal constitution. Id. § 414.008(c), (d).

Therefore, we cannot agree with the position of real parties in interest that Thomas

ends the constitutional inquiry in the present case.

In fact, the Thomas

decision supports Hinterlong's challenge to the constitutionality of the crime

stoppers privilege as applied to him in this civil case. Thomas successfully

claimed that the then absolute crime stoppers privilege unconstitutionally

abridged his federal constitutional rights in a criminal case, and the

legislature subsequently created a statutory exception applicable to criminal

cases. Hinterlong asserts that because the crime stoppers privilege is absolute

in civil cases, providing no corollary civil case exception, it

unconstitutionally violates the open courts provision of the Texas Constitution.

Hinterlong claims that the lack of an exception to the crime stoppers privilege

in civil cases renders the statute unconstitutional as applied to him in his

civil case, just as it was unconstitutional as applied to Thomas in his criminal

case.

The open courts provision in

article I, section 13 of the Texas Constitution provides that "[a]ll courts

shall be open, and every person for an injury done him, in his lands, goods,

person or reputation, shall have remedy by due course of law." Tex. Const.

Art. I, § 13. The Texas Supreme Court explained:

The provision's wording indicates the high value the drafters and ratifiers

placed on the right of access to the courts. First, the language is mandatory:

" shall be open" and " shall have remedy by due

course of law." Further, it is all-inclusive: " all

courts" are to be open; "for every person"; for all

interests, "lands" (real property), "goods" (personal

property), "person" (body and mind), and "reputation"

(good name); at all times , since there is no emergency exception.

LeCroy v. Hanlon , 713

S.W.2d 335, 339 (Tex. 1986) (orig. proceeding). The open courts provision is

premised upon the rationale that the legislature has no power to make a remedy

by due course of law contingent upon an impossible condition. Moreno v.

Sterling Drug, Inc. , 787 S.W.2d 348, 355 (Tex. 1990). A statute or

ordinance that unreasonably abridges a justiciable right to obtain redress for

injuries caused by the wrongful acts of another is void as amounting to a denial

of due process. Sax v. Votteler , 648 S.W.2d 661, 665 (Tex. 1983). To

establish an open courts violation, a plaintiff must satisfy a two-part test:

(1) he must show he has a well recognized common law cause of action that is

being statutorily restricted; and (2) he must show the restriction is

unreasonable or arbitrary when balanced against the legislature's actual purpose

in enacting the statute. See Owens Corning v. Carter , 997 S.W.2d 560,

573 (Tex.), cert. denied, 528 U.S. 1005 (1999); Moreno , 787

S.W.2d at 355 .

A strong presumption exists that a

valid legislative enactment is constitutional. Enron Corp. v. Spring Indep.

Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996). Therefore, in analyzing the

constitutionality of a statute, we begin with a presumption that the statute is

constitutional and that the legislature has not acted unreasonably or

arbitrarily. Id. The party challenging the constitutionality of a

statute bears the burden of demonstrating that the enactment fails to meet

constitutional requirements. Id.

A. Restriction of

Cognizable Common Law Causes of Action

Hinterlong pleaded defamation,

malicious prosecution, and negligence causes of action against Arlington ISD,

Clements, the tipster, and the unknown person or persons whom he alleges planted

the Ozarka water bottle in his vehicle. (6) These

claims are all well-established common law causes of action. See Tex.

Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 1997) (codifying common law

libel cause of action); Cain v. Hearst Corp., 878 S.W.2d 577, 580 (Tex.

1994) (recognizing slander as a common law cause of action); In re W.C.,

56 S.W.3d 863 , 872 n.3 (Tex. App.--Houston [14 th Dist.] 2001, no

pet.) (recognizing malicious prosecution as a common law claim); Horizon/CMS

Healthcare Corp. v. Auld , 34 S.W.3d 887, 903 (Tex. 2000) (recognizing that

"all negligence actions are common-law claims").

Real parties in interest contend

for the first time in their motion for rehearing that, at common law, Arlington

ISD has sovereign immunity against Hinterlong's claims and that Clements has

official immunity from such claims. They further contend that the Texas Tort

Claims Act's limited waiver of immunity with regard to school districts for

injuries resulting from motor vehicle accidents is not applicable in this case. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 , 101.051 (Vernon 1997). Real

parties in interest therefore contend that Hinterlong has no cognizable common

law claims and that therefore the open courts guarantee is not implicated.

Real parties in interest fail to

consider, however, that regardless of his claims against Arlington ISD and

Clements, Hinterlong has pleaded cognizable common law claims against both the

tipster and the person or persons who planted the Ozarka water bottle in his

vehicle; neither of these parties is entitled to immunity.

Additionally, real parties in

interest fail to distinguish between immunity from suit and immunity from

liability, which are two distinct principles. See Tex. Dep't of Transp. v.

Jones , 8 S.W.3d 636, 638 (Tex. 1999). While immunity from suit (sovereign

immunity) abridged claims at common law, immunity from liability (official

immunity) is an affirmative defense to common law claims that must be pleaded or

it is waived. See Green Int'l, Inc. v. State, 877 S.W.2d 428, 436-37

(Tex. App.--Austin 1994, writ dism'd) (holding sovereign immunity is common-law

doctrine that preceded Texas Constitution so application of doctrine to preclude

litigation of breach of contract and quantum meruit claims does not violate open

courts provision); Jones, 8 S.W.3d at 638 (recognizing distinction

between immunity from liability, which is an affirmative defense that must be

pleaded or it is waived, and immunity from suit, which is jurisdictional and

requires complaining party to establish state's consent to be sued); Hayes

v. Patrick, 71 S.W.3d 516, 521 (Tex. App.--Fort Worth 2002, no pet.)

(noting official immunity is common law affirmative defense that protects

government officers and employees from liability for conduct that would

otherwise be actionable). Absent both pleading and proof of immunity, Clements

can be held liable under Hinterlong's claims. See Univ. of Houston

v. Clark, 38 S.W.3d 578, 580 (Tex. 2000) (noting that official immunity is

affirmative defense that protects government employees from personal liability,

and that, to be entitled to summary judgment on immunity defense, employee must

conclusively prove each element of defense); see also Myers v. Doe, 52

S.W.3d 391, 395-96 (Tex. App.--Fort Worth 2001, pet. denied) (addressing school

district employees' entitlement to immunity if all elements under section

22.051(a) of the Education Code are established); see also Tex. Educ.

Code Ann. § 22.051 (a) (Vernon 1996) (stating that professional school district

employees are not personally liable for actions incident to or within the scope

of duties performed that involve the exercise of judgment or discretion, unless

there is an excessive use of force or negligent discipline resulting in bodily

injury to students).

Clements is also not cloaked with

immunity from personal liability where her actions are not incident to or within

the scope of her professional duties or while she is performing duties that are

ministerial and, therefore, do not involve the exercise of judgment or

discretion. See Tex. Educ. Code Ann. § 22.051 ; Myers, 52

S.W.3d at 396 ; cf. Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994)

(holding that government-employed medical personnel are not immune from tort

liability if the character of the discretion they exercise is medical and not

governmental). Hinterlong's pleadings allege that Clement's acts and omissions

involved ministerial duties and that, at certain times, Clements acted outside

the scope of her employment or official duties. Hinterlong has, therefore,

pleaded cognizable common law claims against Clements, subject to her

affirmative defense of immunity.

Accordingly, we conclude that

Hinterlong has asserted well-established common law causes of action against

Clements, the tipster, and the person or persons who planted the Ozarka water

bottle. Regardless of whether the trial court later holds that Arlington ISD is

sovereignly immune from suit, Hinterlong's assertion of these common law causes

of action against Clements, the tipster, and the person or persons who planted

the Ozarka water bottle satisfy the open courts predicate of assertion of

well-established common law causes of action.

Hinterlong's mere pleading of

common law causes of action, however, does not end our analysis. Hinterlong must

possess "a justiciable right to obtain redress for injuries caused by the

wrongful acts of another." See Sax , 648 S.W.2d at 665 . The supreme

court has explained that, in the context of a criminal defendant seeking civil

redress, the defendant's "illegal conduct . . . is the cause in fact of any

injuries flowing from the conviction, unless the conviction has been

overturned." Peeler v. Hughes & Luce , 909 S.W.2d 494, 498

(Tex. 1995).

In Peeler , a criminal

defendant pleaded guilty, but then sued her lawyer for legal malpractice. The

supreme court held that, although the client made a prima facie case of

malfeasance by showing her attorney failed to communicate an immunity offer to

her, nonetheless, she could not recover unless she first established that she

had been exonerated of the crime. Id. at 497-98 . The court reasoned

that, absent exoneration of the crime, she could not show her attorney's

actions, even if negligent, were the cause of her injuries. Id. at 498 .

Here, Hinterlong was acquitted of

the minor in possession charge. Had Hinterlong not been acquitted, he would

possess no justiciable common law right to obtain redress because he would not

be able to show that the wrongful act of another, as opposed to the criminal

conduct for which he was convicted, caused his injuries. In this instance, as a

matter of law, application of the statutory crime stoppers privilege to him

would not violate the open courts provision of the Texas Constitution. See

id.

Applying the supreme court's

causation reasoning in Peeler to a high school crime stoppers tip

situation, a student's mere exoneration of criminal charges does not necessarily

give rise to "a justiciable right to obtain redress for injuries caused by

the wrongful acts of another." See Sax , 648 S.W.2d at 665 . The

bare fact of a student's exoneration does not imply that any civil injuries

suffered by the student were caused by the wrongful acts of another . A

student could be exonerated for a variety of procedural or substantive reasons

unrelated to any wrongful or nonwrongful acts of another. The violation of

school policy, here possession of a thimble full of alcohol, therefore remains

the sole proximate cause of any civil damages the student suffers unless the

student pleads and offers prima facie proof that his injuries were caused by

the wrongful acts of another . Thus, to meet his burden of showing that the

application of the crime stoppers privilege unconstitutionally abrogated his

cognizable common law causes of action, Hinterlong was required to plead and to

offer prima facie proof that his injuries were caused by the wrongful acts of

another, that is, real parties in interest, the tipster, or the person or

persons who planted the Ozarka water bottle. Accord Peeler , 909 S.W.2d

at 498 (recognizing no tort recovery is available if defendant's illegal acts

remain the sole proximate cause of his injuries); see also Earle v.

Ratliff , 998 S.W.2d 882, 889 (Tex. 1999) (requiring party asserting open

courts violation as basis for avoiding summary judgment on limitations in 4590i

suit to raise a fact issue on the applicability of the provision).

Hinterlong pleaded that real

parties in interest were negligent in acting on the tip and that real parties in

interest and the unknown defendants maliciously prosecuted and defamed him,

causing him to suffer extreme mental anguish, public humiliation, and

embarrassment; causing injury to his reputation, health, and character; causing

him to be suspended from AMHS; and causing him to be required to attend

alternative school. Hinterlong clearly pleaded a right to redress for injuries

caused by the wrongful acts of another.

In support of his motion to compel,

Hinterlong provided the depositions of Clements, Hightower, Lindsey, and Clark.

He also provided the exhibits referenced in each of these depositions. Jacoby's

record of Hinterlong's appeal conference indicates that the Hinterlongs

presented "compelling" evidence that Hinterlong was "set

up." The keys to Hinterlong's Blazer were stolen by AMHS students during

the July trespassing incident. The Hinterlongs pressed charges against

approximately thirteen AMHS students. Approximately three months later, three

days before the regional tennis tournament, a tip was given to Clements that

Hinterlong was "hoarding" alcohol in the trunk of his vehicle for the

regional tennis tournament. Hinterlong's Blazer did not have a trunk and only a

thimble full of a substance never proved to be alcohol was found, which is

hardly a stockpiling or hoarding. Moreover, the tip was not made in accordance

with the typical AMHS crime stoppers procedures. Although the unique path the

tip followed does not invalidate its crime stoppers tip status, it certainly

supports Hinterlong's contention that the tip was a set-up involving

"planted" evidence. Finally, Hinterlong cooperated with Clark in her

search of his Blazer and indicated as they walked to her office that "this

may involve something else." We hold that this evidence presented by

Hinterlong constitutes a prima facie showing that his alleged injuries were

caused by the wrongful acts of Clements, the tipster, and the person or persons

who planted the Ozarka water bottle in his vehicle. We further hold that

Hinterlong, having been exonerated of the minor in possession charge and having

come forward with prima facie evidence that his claimed injuries were caused by

the wrongful acts of another, has satisfied his burden of showing that he

possesses cognizable common law causes of action against Clements, the tipster,

and the person or persons who planted the Ozarka water bottle for malicious

prosecution, defamation, and negligence.

We next address whether the crime

stoppers privilege restricts Hinterlong's common law causes of action. Clearly

it does. The privilege operates as an almost complete bar to Hinterlong's suit

against the tipster and the person or persons who planted the Ozarka water

bottle. The privilege likewise restricts Hinterlong's claims against Clements

because the identity of the tipster and information provided by the tipster may

be critical to Hinterlong's tort claims.

B. Restriction

of Causes of Action Unreasonable

When Balanced Against Statutory Purpose

Having determined that the crime

stoppers privilege restricts Hinterlong's cognizable common law claims, we next

determine whether the abrogation of those claims is arbitrary or unreasonable

when balanced against the legislature's actual purpose in enacting the statute. Lucas

v. United States, 757 S.W.2d 687, 690 (Tex. 1988); Sax, 648 S.W.2d

at 665-66 . In making this determination, we consider both the general purpose of

the statute and the extent to which the litigant's right to redress is affected.

Sax, 648 S.W.2d at 665-66 .

The extent of the abrogation of

Hinterlong's right to redress is almost total. He cannot prosecute his common

law causes against either Clements, the tipster, or the person or persons who

planted the Ozarka water bottle for "injury done him, in his . . . person

or reputation" without learning the tipster's identity. His inability to

obtain discovery concerning how the tipster obtained the information provided to

Clements severely impedes Hinterlong's prosecution of his common law causes of

action against these parties.

The open courts provision test

balances the legislature's actual purpose in enacting a law against that law's

interference with the individual's right of access to the courts. LeCroy ,

713 S.W.2d at 341 . In addressing a "facial" or "per se" open

courts constitutional challenge to legislative action restricting common law

remedies for well established common law causes of action for injuries to one's

lands, goods, person or reputation, courts examine whether the legislature

reasonably substituted another remedy or whether legislative restriction of the

common law causes of action was a reasonable exercise of the police power in the

interest of the general welfare. See Lebohm v. City of Galveston , 154

Tex. 192, 195-96 , 275 S.W.2d 951, 955 (1955) (op. on reh'g) (involving facial

challenge to legislatively approved city charter provision exempting city from

all liability for injuries caused by defective streets); see also Owens

Corning, 997 S.W.2d at 573-74 (involving facial challenge to Texas'

borrowing statute); Hanks v. City of Port Arthur , 121 Tex. 202, 205 , 48

S.W.2d 944, 945 (1932) (involving facial challenge to ordinance exempting Port

Arthur from all liability for injuries caused by defective streets). In

addressing an "as-applied" open courts constitutional challenge to

legislative action restricting common law remedies for well established common

law causes of action for injury to one's lands, goods, person or reputation,

courts also examine whether the restriction is unreasonable or arbitrary when

balanced against the legislative purpose for the statute, including a purpose of

promoting general public welfare through the exercise of police power. See

Sax , 648 S.W.2d at 666 (involving challenge to statute of limitations set

forth in insurance code article 5.82 [article 4590i's predecessor] as

applied to minors ); see also Weiner v. Wasson , 900 S.W.2d

316, 318-19 (Tex. 1995) (involving challenge to article 4590i's statute of

limitations as applied to minors ). That is, a statutory restriction of

a well established common law cause of action may be facially or per se

constitutional under the Texas Constitution's open courts provision, but

nonetheless violate the open courts provision of the Texas Constitution as

applied to a particular category of people if the restriction of the common

law cause of action is unreasonable when balanced against the purpose of the

statute. See Sax , 648 S.W.2d at 667 (recognizing that the "purpose

and basis for article 5.82 are legitimate" but nonetheless holding the

restriction unreasonable as applied to minors); Weiner , 900 S.W.2d at

318 (same).

Here, the legislature has

substituted no remedy in place of its abrogation of Hinterlong's common law

causes of action for malicious prosecution, defamation, or negligence. Thus, the

statutory abrogation of these common law causes of action is not rendered

reasonable based on a substitute remedy. Cf. Tex. Workers' Comp. Comm'n v.

Garcia , 893 S.W.2d 504, 510 (Tex. 1995) (holding workers' compensation

statute does not unreasonably cut off common law claims because it provides a

substitute remedy).

To determine a statute's purpose,

we consider the "object sought to be obtained" by the statute. See

Tex. Gov't Code Ann. § 311.023 (Vernon 1998). The purpose served by the crime

stoppers statute is to foster the detection of crime and to encourage persons to

report information about criminal acts. Tex. Gov't Code Ann. § 414.005 (2)

(Vernon Supp. 2003); Thomas, 837 S.W.2d at 113 . Crime stoppers tips are

to help law enforcement agencies detect and combat crime by increasing the flow

of information to and between law enforcement agencies. Id. §

414.005(5). Additionally, according to the statute, reward money is to be paid

to those persons who report criminal activity. Id. at § 414.010-.011.

There is no question that the crime stoppers statute here has a valid basis and

purpose, i.e., is a valid exercise of police power for general public welfare,

that being to promote, and to encourage through the payment of reward money, legitimate

tips concerning criminal activity. See Sax , 648 S.W.2d at 667

(recognizing in as-applied open courts challenge that the "purpose and

basis for article 5.82 are legitimate"); Owens Corning , 997 S.W.2d

at 574 (holding legislature's adoption of borrowing statute was valid exercise

of police power where statute restricted time period for bringing suit in Texas

to time period allowed in state where cause of action arose).

The question then, pursuant to

Hinterlong's as-applied open courts challenge, is whether the application of the

crime stopper statutory privilege to restrict common law causes of action

brought by a student who has been exonerated of criminal charges and who has

pleaded and offered prima facie proof of a right of redress for the wrongful

conduct of another, is arbitrary or unreasonable when balanced against the

legitimate purpose of the statute. We hold that it is. In Hinterlong's civil

suit, application of the statutory crime stoppers privilege as a complete bar to

disclosure of AMHS's crime stoppers records, including the tipster's identity,

and the resultant restriction of Hinterlong's common law causes of action does

not promote the purpose of the crime stoppers statute. In fact, this application

of the statute in the context of AMHS's zero tolerance policy actually thwarts

the purpose of the crime stoppers statute. Such an application, by totally

insulating the tipster, promotes reports of set up criminal activity involving

"planted" evidence on high school campuses. A student could place a

thimble full of alcohol in another student's locker, car, notebook, purse, or

backpack, and, as explained by Clark, cause the student's automatic expulsion

pursuant to the zero tolerance policy. A tipster, without risking disclosure of

his or her identity or any accountability in a civil lawsuit, could place

alcohol in another student's possession before school, at lunch, or during a

break, and then make a crime stoppers tip, ensuring the student's expulsion and

ineligibility for a football play-off game, a track meet, a regional tennis

tournament, or cheerleader tryouts. The purpose of the crime stoppers statute is

to promote legitimate reports of criminal activities, not to shield a

student who for personal gain or retaliatory motives makes a set up tip to

achieve expulsion of a rival or a competitor.

In fact, outside the ambit of the

public school zero tolerance policy, nonlegitimate crime stoppers tips are not

acted upon. Police must independently corroborate information provided by an

anonymous tipster, including a crime stoppers tipster, in order to justify even

an investigative detention based on the tip. See, e.g., Florida v. J.L., 529

U.S. 266, 273-74 , 120 S.Ct. 1375, 1380 (2000) (holding that an anonymous tip

must be corroborated to provide reasonable suspicion justifying an investigatory

stop); Parish v. State , 939 S.W.2d 201, 202-05 (Tex. App.--Austin 1997,

no pet.) (same). Consequently, nonlegitimate or set up crime stoppers tips that

cannot be corroborated are not acted upon and are not rewarded. Thus, in cases

involving crime stoppers tips occurring outside the unique context of public

schools' zero tolerance setting, the issue of civil damages for illegitimate or

set up tips is unlikely to ever arise.

Finally, we note that when the

legislature enacted the crime stoppers statute in 1987, zero tolerance policies

did not exist at our public schools. Thus, the legislature could not have

anticipated the juxtaposition between the statutory crime stoppers privilege and

schools' zero tolerance policies, resulting in the opportunity for abuse of the

crime stoppers tip program that allegedly occurred here. The statute was

certainly not intended for use as a shield from accountability for set up tips

made for personal or retaliatory reasons. See Tex. Gov't Code Ann. §

311.023 (Vernon 1998); Finley v. Steenkamp , 19 S.W.3d 533, 542 (Tex.

App.--Fort Worth 2000, no pet.) (recognizing court must consider the

consequences that would follow from its construction of a statute and avoid

absurd results).

We hold that the purpose of the

crime stoppers privilege does not justify, in the limited public school zero

tolerance setting, the resultant almost total abrogation of Hinterlong's common

law causes of action against the tipster and the person or persons who planted

the Ozarka water bottle or the partial abrogation of Hinterlong's common law

causes of action against Clements. See Lucas , 757 S.W.2d at 691 ; Sax,

648 S.W.2d at 665-66 . Hinterlong met his burden of establishing that the

application of the crime stoppers privilege to him in this case violates the

Texas Constitution's open courts provision by restricting his recognized common

law causes of action against Clements, the tipster, and the person or persons

who planted the Ozarka water bottle in a way that is arbitrary or unreasonable

when balanced against the legislative purpose in enacting the statute. Thus, we

hold that the trial court abused its discretion by refusing to declare the

absolute crime stoppers privilege set forth in section 414.008 of the Texas

Government Code unconstitutional as applied to Hinterlong in the present case. See,

e.g. , Walker, 827 S.W.2d at 840 (recognizing a trial court has no

discretion in determining what the law is or applying the law to the facts).

C. Appropriate

Remedy

Although the crime stoppers

privilege, as applied to Hinterlong in this case, violates the open courts

provision of the Texas Constitution, Hinterlong nonetheless is not entitled to

mandamus relief unless he possesses no adequate remedy at law. Without knowing

the identity of the tipster or how the tipster learned Hinterlong was supposedly

hoarding alcohol in his trunk, Hinterlong will be forced "to try his

lawsuit, debilitated by the denial of proper discovery, only to have that

lawsuit rendered a certain nullity on appeal." Id. at 841 . Any

judgment against an unnamed, anonymous tipster or person who planted the Ozarka

water bottle is, in effect, a "certain nullity." See id.

Moreover, the trial court's discovery order here disallowed discovery that

cannot be made a part of the appellate record, thereby denying us the ability on

appeal to evaluate the effect of the trial court's error. See In re Colonial

Pipeline , 968 S.W.2d at 941 . Finally, Hinterlong's remedy of this error by

appeal is inadequate because he is constitutionally guaranteed that the Texas

courts "shall be open, and every person for any injury done him, in his

lands, goods, person or reputation , shall have remedy by due course of

law." Tex. Const. Art. I, § 13 (emphasis added); see also Tilton ,

925 S.W.2d at 682 . Because Hinterlong has no adequate remedy at law, mandamus

relief is appropriate.

We now address the scope of the

mandamus relief to be granted Hinterlong. Hinterlong, of course, requests that

we mandamus the trial court to order real parties in interest to comply with his

discovery requests. We are not convinced, however, that this is the proper

remedy.

We understand AMHS's unfortunate

need for a zero tolerance policy. We also understand the usefulness of a crime

stoppers program at AMHS and the need for tipster anonymity. We note that the

court of criminal appeals in Thomas , although finding application of

the crime stoppers privilege to be unconstitutional, did not order Thomas's

unlimited access to the privileged material. Instead, it ordered the trial court

to conduct an in camera review of the information and to determine if the

information contained Brady evidence. Thomas , 837 S.W.2d at

114 .

The Amarillo court of appeals in Martin

v. Darnell followed the Thomas in camera review procedure in a

mandamus action. Martin v. Darnell , 960 S.W.2d 838, 845 (Tex.

App.--Amarillo 1997, orig. proceeding). In Martin , a criminal defendant

sought discovery of a prosecution witness's financial records. The witness was

an employee in the records division of the Lubbock Police Department and was

used by the department in an undercover investigation into the illegal

dissemination of police accident reports. Id . at 840. The defendant

alleged that he had paid the witness to provide him with police reports before

the beginning of the investigation and sought discovery of the witness's bank

records and income tax returns. Id. Ultimately, the Amarillo court held

that the Thomas in camera review procedure would "satisfy the

government's interest in protecting its witnesses while satisfying [the

defendant's] Sixth Amendment rights of confrontation and compulsory

process." Id . at 845.

Additionally, Rule 508 of the Texas

Rules of Evidence provides guidance. It is titled, "Identity of

Informer," and, after generally recognizing that the identity of an

informant may be privileged, provides:

(c) Exceptions.

. . . .

(2) Testimony on merits. If it appears from the evidence in the

case or from other showing by a party that an informer may be able to give

testimony necessary to a fair determination of a material issue on the

merits in a civil case to which the public entity is a party . . . and the

public entity invokes the privilege, the court shall give the public entity

an opportunity to show in camera facts relevant to determining whether the

informer can, in fact, supply that testimony. The showing will ordinarily be

in the form of affidavits, but the court may direct that testimony be taken

if it finds that the matter cannot be resolved satisfactorily upon

affidavit. If the court finds that there is a reasonable probability that

the informer can give the testimony, and the public entity elects not to

disclose the informer's identity, the court in a civil case may make any

order that justice requires . . . . Evidence submitted to the court shall be

sealed and preserved to be made available to the appellate court in the

event of an appeal, and the contents shall not otherwise be revealed without

consent of the public entity. All counsel and parties shall be permitted to

be present at every stage of proceedings under this subdivision except a

showing in camera, at which no counsel or party shall be permitted to be

present.

Tex. R. Evid. 508(c)(2).

We, like the Thomas and Martin

courts, adopt a version of an in camera review procedure here. We agree that

authorizing unlimited access to crime stoppers information would

unnecessarily compromise public high schools' interest in fostering the

reporting of suspected criminal activity. See Thomas , 837 S.W.2d at

114 . Both AMHS's interests and Hinterlong's constitutional rights under the

Texas Constitution's open courts provision may be satisfied here through

application of the in camera procedures set forth in Texas Rule of Evidence 508.

See Tex. R. Evid. 508.

Applying rule 508 to the present

facts, the public entity, here, Arlington ISD and Clements on Arlington ISD's

behalf, has invoked the crime stoppers privilege. Hinterlong clearly has

established that the tipster "may be able to give testimony necessary to a

fair determination of a material issue on the merits in a civil case":

specifically, testimony as to how and from whom the tipster purportedly learned

or heard Hinterlong was hoarding alcohol in the trunk of his car so that

Hinterlong may determine any link between the tipster and the allegedly

disgruntled student trespassers or any other person or persons who may have

planted the Ozarka water bottle in his vehicle. Thus, the trial court shall

order real parties in interest to submit in camera an affidavit from the student

tipster demonstrating how he or she learned of purported stockpiling of alcohol

in Hinterlong's trunk.

If the student tipster's affidavit

demonstrates that the tipster possessed personal knowledge of the information

provided to Clements, the trial court may order disclosure of any information

provided by the tipster necessary to a fair determination of a material issue on

the merits in Hinterlong's case, including disclosure of the tipster's identity.

See Tex. R. Evid. 508(c)(2) (authorizing trial court to make any order

that justice requires if the court finds that there is a reasonable probability

that the informant can give testimony necessary to a fair determination of a

material issue on the merits in a civil case); Tex. Gov't Code Ann. §

414.008 (c), (d) (authorizing trial court disclosure of tipster's identity in

criminal case when "the state or federal constitution requires the

disclosure"). The trial court shall take appropriate means to ensure that

the tipster's identity is protected, however, unless the trial court believes

disclosure is necessary to a fair determination of a material issue on the

merits in Hinterlong's case.

If, however, the tipster's

affidavit reveals that the tip was based on hearsay, then the trial court shall

order disclosed to Hinterlong the name of the person or persons providing the

information to the tipster. See Tex. R. Evid. 508(c)(2). The trial

court may, if necessary to a fair determination of a material issue on the

merits in Hinterlong's case or if the trial court is not satisfied that the

information provided is reasonably reliable, order that the tipster's identity

be disclosed and shall make any other order justice requires. See Tex.

R. Evid. 508(c)(2)-(3); see also Tex. Gov't Code Ann. § 414.008 (c),

(d). Any evidence that the trial court determines shall not be disclosed shall

be sealed and made part of the trial court's record in this case. Accord

Thomas , 837 S.W.2d at 114 ; Tex. R. Evid. 508.

Real parties in interest contend on

rehearing that this remedy is improper because: (1) it orders them to produce a

document that is not within their possession, custody, or control; and (2) it

arguably exposes them to criminal punishment under section 414.009. See

Tex. R. Civ. P. 192.3(b) (requiring parties to produce documents that are within

their "possession, custody, or control"); Tex. Gov't Code Ann. §

414.009 (a), (b) (making it a class A misdemeanor for any person who accepts a

report of criminal activity on behalf of a crime stoppers organization to

intentionally or knowingly divulge the content of the crime stoppers report or

the informant's identity, without the informant's consent).

As recited above, Rule 508

specifically authorizes the use of affidavits to place testimony of an informer,

like the tipster here, before the trial court for an in camera review. Tex. R.

Evid. 508(c)(2). Nothing in Rule 508 indicates that only affidavits already in

the possession, custody and control of the public entity are to be utilized. Id.

To the contrary, the Rule's provision that ordinarily the public entity should

be allowed the opportunity to show facts in camera via an affidavit suggests

that this vehicle, that is the affidavit of the informer, impinges the least on

the asserted privilege. Id . Real parties in interest may certainly

decline the opportunity to present an affidavit from the tipster to the trial

court for an in camera review. In that case, based on our determination that the

absolute crime stoppers privilege as applied in this case violates the open

courts provision of the Texas Constitution, the trial court shall order the

tipster's identity disclosed. See Tex. Gov't Code Ann. § 414.008 (c),

(d).

As for real parties in interest's

contention that disclosure of the tipster's identity arguably exposes them to

criminal punishment under section 414.009, we disagree for several reasons.

First, it is only unauthorized disclosure, or disclosure without the informant's

consent, that invokes these penalties. See id. § 414.009(a).

If the tipster provides the affidavit, it follows that the penalties would not

be invoked.

Additionally, the disclosure

ordered by this court would not subject real parties in interest to the criminal

and other penalties set forth in section 414.009 because the disclosure itself

would be privileged. The absolute immunity of parties and witnesses from

subsequent liability for their testimony in judicial proceedings is well

established at common law. Briscoe v. LaHue, 460 U.S. 325, 331-35 , 103

S. Ct. 1108, 1113-15 (1983). Any communication, even perjured testimony, made in

the course of a judicial proceeding, cannot serve as the basis for a suit in

tort. Laub v. Pesikoff, 979 S.W.2d 686, 689 (Tex. App.--Houston [1 st

Dist.] 1998, pet. denied); see also Bird v. W.C.W., 868 S.W.2d 767,

771-72 (Tex. 1994) (concluding that communications made during the course of

judicial proceedings are privileged). Because the proper administration of

justice requires full and free disclosure from witnesses unhampered by fear of

retaliatory lawsuits, Texas courts have consistently applied the privilege to

claims arising out of communications made in the course of judicial proceedings,

regardless of the label placed on the claim and even though the communications

might otherwise subject a witness to statutory liability. See Bird, 868

S.W.2d at 772 ; Laub, 979 S.W.2d at 690 ; Leigh v. Parker, 740

S.W.2d 101, 103-04 (Tex. App.--Austin 1987, writ denied) (holding that

psychologist witness was protected against liability for statements made during

course of judicial proceedings and ordered by trial court, superseding statutory

liability for psychologist's disclosure of privileged patient information).

Accordingly, any disclosure ordered and made during the course of these judicial

proceedings would be privileged.

Finally, because we have determined

that the statutory crime stoppers privilege, as applied in this case, violates

the open courts provision of the Texas Constitution, it follows that the

penalties provided in section 414.009 for violating the statutory privilege are

likewise unenforceable as applied in this case. An unconstitutional statute is

void and cannot provide a basis for any right or relief. Accord Reyes v.

State, 753 S.W.2d 382, 383-84 (Tex. Crim. App. 1988) (noting in a per se

constitutional challenge that an unconstitutional statute "is invalid and

imposes no duties, confers no rights, creates no office, bestows no power,

affords no protection, and justifies no acts performed under it . . . ."); cf.

Bullock v. ABC Interstate Theatres, Inc., 557 S.W.2d 337, 340-41 (Tex. Civ.

App.--Austin 1977, writ ref'd n.r.e.) (concluding that once statutory tax was

declared unconstitutional, the exemption created by payment of such tax likewise

became inoperative), cert. denied, 439 U.S. 894 (1978). We therefore

reject real parties in interest's suggestion that disclosure will expose them to

criminal punishment.

VII. Conclusion

In summary, we conclude that the

crime stoppers privilege, as applied to Hinterlong under the facts of this case,

unreasonably and arbitrarily restricts his common law claims when those claims

are balanced against the purpose of the statute. Accordingly, we hold that the

statute, as applied in this case, violates the open courts provision of the

Texas Constitution. We conditionally grant Hinterlong's petition for writ of

mandamus and direct the trial court to vacate its August 24, 2001 order denying

Hinterlong's motion to compel the production of evidence regarding the student

informant's identity and other relevant information surrounding the crime

stoppers tip. See Tex. R. App. P. 52.8(c). We order the trial court to

conduct the rule 508(c)(2) in camera inspection, outlined above, within thirty

(30) days of the date of this opinion. See Tex. R. Evid. 508(c)(2). We

are confident the trial court will vacate its order and will conduct the

necessary rule 508 procedures as we have directed. Our writ will issue only if

the trial court refuses to do so.

SUE WALKER

JUSTICE

PANEL A: HOLMAN and WALKER, JJ.;

and DAVID L. RICHARDS, J. (Sitting by Assignment).

DELIVERED: July 3, 2003

1. Fireworks were also found in a bag in Hinterlong's

vehicle, and Hinterlong received a citation for their possession. The record

indicates, however, that Hinterlong's expulsion and placement in an alternative

school resulted from his possession of alcohol, not fireworks. Hinterlong was

required to complete "intervention counseling" regarding alcohol prior

to readmission to AMHS. Additionally, Hinterlong's expulsion from AMHS was

upheld through the administrative appeals process "because Matt did have

possession of alcohol on school property."

2. No tape recording or transcription of the informal

conference exists. Clark attempted to record the informal conference, but the

tape malfunctioned. She informed the Hinterlongs of this and offered to

re-conduct the conference, but they indicated that would not be necessary.

Clark's deposition and her typed report of the conference, however, reflect the

facts recited above.

3. Arlington ISD and Clements are the real parties in

interest in this original proceeding.

4. Hinterlong expressly raised his as-applied

constitutional challenge in his motion to compel and at the hearing on his

motion to compel. Thus, by denying Hinterlong's motion, the trial court

implicitly overruled the constitutional challenge. See Tex. R. App. P.

33.1(a)(2)(A).

5. Section 414.008 cloaks "records" of a crime

stoppers organization with a privilege. When section 414.008 is read in

conjunction with section 414.009, making it a class A misdemeanor to divulge the

identity of an informant, it is clear that the privileged "records"

necessarily include the tipster's identity. Tex. Gov't Code Ann. §§

414.008 -.009.

6. Real parties in interest concede that the crime

stoppers privilege is not an immunity statute and that the tipster is not immune

from suit.