Robert Brown III v. City of Austin

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00035-CV

Robert Brown III, Appellant

v.

City of Austin, Appellee

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-006945, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

MEMORANDUM OPINION

Robert Brown, III, pro se, appeals the trial court’s dismissal of his petition for a

writ of mandamus seeking to compel the City of Austin to produce two police reports pursuant

to Brown’s request under the Texas Public Information Act (PIA). The trial court dismissed

Brown’s suit on the City’s motion to dismiss filed under chapter 14 of the Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code § 14.003(a)(2) (permitting courts to dismiss

inmate claims that are frivolous). We affirm the trial court’s dismissal order.

BACKGROUND AND STANDARD OF REVIEW

After the City refused to produce two police reports1 to Brown in response to his

PIA request, he filed a suit for writ of mandamus in the trial court seeking to compel the City to

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The two police reports that Brown sought were concerning (1) “an offense” allegedly

committed by him on or about May 20, 2004 and (2) “an offense” allegedly committed by a third

party in September 2003. His petition alleged that the reports “are needed in the interest of justice,”

and his appellate brief contends that the reports “are essential to me proving my innocence” of

produce the reports. See Tex. Gov’t Code § 552.321 (authorizing suits for writ of mandamus to

compel governmental body to make available information that is public). Brown was an inmate

at the Texas Department of Criminal Justice when he filed his petition and remains incarcerated.

The City answered the lawsuit and then filed a chapter 14 motion to dismiss. See Tex. Civ. Prac.

& Rem. Code § 14.003.

In its motion, the City contended that Brown’s suit has no arguable basis in law

because he is and was at all relevant times an inmate, and a governmental body’s compliance

with an inmate’s PIA request is purely discretionary. See Tex. Gov’t Code § 552.028 (pertaining

to PIA requests from inmates). The City also contended that Brown could not meet the

requirements of entitlement to mandamus relief. See, e.g., Republican Party of Tex. v. Dietz,

940 S.W.2d 86, 88 (Tex. 1997) (noting that movant seeking mandamus relief must establish that

public official or body failed to perform ministerial duty or committed clear abuse of discretion

and that there is no adequate remedy at law).

We review the trial court’s order dismissing Brown’s petition for an abuse of

discretion. See Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no

pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules and principles. Crawford v. XTO Energy, Inc., 509 S.W.3d 906,

911 (Tex. 2017).

the charges for which he was convicted. While the record does not contain information specifically

identifying the offense(s) for which Brown was convicted, his petition and appellate briefs make

reference to sexual abuse of a child, identify the child at issue as his “soon to be step-son” (because

Brown had been engaged to the child’s mother), and identify Brown as “the alleged perpetrator.”

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DISCUSSION

The PIA affords governmental bodies discretion in determining whether to comply

with information requests of inmates. Tex. Gov’t Code § 552.028(a) (“A governmental body is

not required to accept or comply with a request for information from . . . an individual who is

imprisoned or confined in a correctional facility[.]”), (b) (“This section does not prohibit a

governmental body from disclosing to an [inmate] information held by the governmental body

pertaining to that individual.”); see Harrison v. Vance, 34 S.W.3d 660, 662–63 (Tex. App.—

Dallas 2000, no pet.) (“We join our sister courts in holding disclosure of information is

discretionary when that information is requested by an individual imprisoned or confined in a

correctional facility, regardless of whether such information pertains to the individual requesting

it.”); Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. denied) (holding that

governmental body is not required to furnish requested information to inmate even if information

pertains to inmate and dismissing inmate’s lawsuit); Moore v. Henry, 960 S.W.2d 82, 84 (Tex.

App.—Houston [1st Dist.] 1996, no writ) (same). Because a governmental body’s disclosure of

information requested by an inmate is discretionary—rather than a ministerial act—mandamus

will not issue to compel the act, and Brown has no arguable basis in law to support his claim.

See Harrison, 34 S.W.3d at 663; Moore, 960 S.W.2d at 84.

While appearing to concede this point on appeal, Brown contends that the trial

court abused its discretion in dismissing his case because the City must nonetheless provide him

the police reports under section 261.201 of the Family Code,2 which in relevant part provides:

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While Brown did not cite to this section of the Family Code in his petition, at the

hearing on the City’s motion to dismiss he cited it and made the same basic argument to the trial

court that he makes on appeal. We conclude that he, therefore, preserved the argument. See Tex.

R. App. P. 33.1 (to present complaint on appeal, record must show that appellant made complaint

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(a) Except as provided by Section 261.203, the following information is confidential,

is not subject to public release under [the PIA], and may be disclosed only for

purposes consistent with this code and applicable federal or state law or under

rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and

the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records,

communications, audiotapes, videotapes, and working papers used or developed

in an investigation under this chapter or in providing services as a result of an

investigation.

(b) A court may order the disclosure of information that is confidential under this

section if:

(1) a motion has been filed with the court requesting the release of the

information;

(2) a notice of hearing has been served on the investigating agency and all other

interested parties; and

(3) after hearing and an in camera review of the requested information, the court

determines that the disclosure of the requested information is:

(A) essential to the administration of justice; and

(B) not likely to endanger the life or safety of:

(i) a child who is the subject of the report of alleged or suspected

abuse or neglect;

(ii) a person who makes a report of alleged or suspected abuse or

neglect; or

(iii) any other person who participates in an investigation of

reported abuse or neglect or who provides care for the child.

...

(g) Notwithstanding subsection (b), the department [of Family and Protective

Services], on request and subject to department rule, shall provide to the parent,

managing conservator, or other legal representative of a child who is the subject

of reported abuse or neglect information concerning the reported abuse or neglect

to trial court by timely request, objection, or motion and that trial court expressly or impliedly

ruled on it or refused to rule and complaining party objected to refusal).

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that would otherwise be confidential under this section if the department has

edited the information to protect the confidentiality of the identity of the person

who made the report and any other person whose life or safety may be endangered

by the disclosure.

...

(k) Notwithstanding Subsection (a), an investigating agency, other than the

department or the Texas Juvenile Justice Department, on request, shall provide to

the parent, managing conservator, or other legal representative of a child who is

the subject of reported abuse or neglect, or to the child if the child is at least 18

years of age, information concerning the reported abuse or neglect that would

otherwise be confidential under this section. The investigating agency shall

withhold information under this subsection if the parent, managing conservator, or

other legal representative of the child requesting the information is alleged to have

committed the abuse or neglect.

Tex. Fam. Code § 261.201.

We understand Brown to be contending that he is entitled to the police reports

under subsections (g) and (k) of section 261.201. However, subsection (g) on its face applies

only to requests for information made to the Department of Family and Protective Services (the

Department). See id. § 261.201(g) (“[T]he [D]epartment . . . shall provide to the parent . . .

information concerning the reported abuse . . . .”). Brown made his request to the City, not the

Department, and subsection (g) is thus inapplicable. Cf. Rodarte v. Texas Dep’t of Family &

Protective Servs., No. 04-10-00880-CV, 2012 WL 2020989, at *3 (Tex. App.—San Antonio

June 6, 2012, no pet.) (mem. op.) (holding that section 552.028 of Government Code does not

relieve Department from its obligation under section 261.201(g) of Family Code to provide

access to its file on children who were subject of reported abuse or neglect to inmate parent of

those children). Brown’s suit against the City, therefore, has no arguable basis in law under

Family Code section 261.201(g).

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We similarly conclude that subsection (k) is inapplicable to the facts as alleged by

Brown. Subsection (k) allows a “parent, managing conservator, or other legal representative of a

child” to obtain requested reports of abuse or neglect of that child from an investigating agency,

unless the requesting person “is alleged to have committed the abuse or neglect.” Brown alleged

that, at the relevant time, he was the “soon to be” step-father of the child allegedly abused, co-

habited with the child’s mother, played a “parental role” with the child, and was a “de facto”

parent to the child by “routinely perfom[ing] a share of the care-taking functions at least as great

as that of the parent who has been the child’s primary caregiver without any expectation of

compensation for his care.” However, Brown has not alleged any facts supporting his status as a

parent or managing conservator as those terms are defined in the Family Code, see Tex. Fam.

Code §§ 101.019 (defining managing conservatorship), .024(a) (defining parent), and he has not

alleged any facts supporting a contention that he is or was ever a legal representative of the

child.3 Furthermore, Brown admits that one of the two police reports identifies him as the

alleged perpetrator and, for that reason, he additionally has no right to that report under section

261.201. See id. § 261.201(k) (“The investigating agency shall withhold information . . . if the

parent . . . is alleged to have committed the abuse or neglect.”). We conclude that Brown’s suit

as to that report has no arguable basis in law under Family Code section 261.201(k) either.

Lastly, Brown appears to be complaining that the trial court erred in not conducting

an in camera inspection of the reports, as contemplated by subsection (b) when a party has filed a

motion under the subsection for release of documents and has served notice of a hearing on the

motion on all interested parties. See id. § 261.201(b). However, the record does not show that

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Brown alleged that the child’s date of birth was September 5, 1991, which would make

him now 28 years old.

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Brown filed any such motion, served the requisite notice on all interested parties, or requested

that the trial court review the reports in camera. Brown is appealing the trial court’s dismissal of

his mandamus action under chapter 14. The trial court has made no ruling on a section 261.201(b)

motion for us to review because there is no such motion in the record. We overrule Brown’s

issues on appeal.

CONCLUSION

The trial court did not abuse its discretion in dismissing Brown’s petition for writ

of mandamus. Accordingly, we affirm its dismissal order.

__________________________________________

Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: August 29, 2019

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