Sep 30 2013-0859 AM City of El Paso vs Greg Abbott - TRANSCRIPT

Plea to the JurisdictionSeptember 30, 2013

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1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES

2 TRIAL COURT CAUSE NO. D-1-GV-12-001731

3 CITY OF EL PASO ) IN THE DISTRICT COURT )

4 vs. ) TRAVIS COUNTY, TEXAS )

5 GREG ABBOTT ) 261ST JUDICIAL DISTRICT

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8 _____________________________________________

9 PLEA TO THE JURISDICTION

10 SEPTEMBER 30, 2013

11 _____________________________________________

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14 On the 30th day of September, 2013, the following

15 proceedings came on to be held in the above-titled and

16 numbered cause before the Honorable Orlinda Naranjo,

17 Judge Presiding, held in Austin, Travis County, Texas.

18 Proceedings reported by computerized stenotype

19 machine.

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1 APPEARANCES

2 Lowell Denton State Bar No. 05764700

3 Scott M. Tschirhart State Bar No. 24013655

4 Denton, Navarro, Rocha & Bernal, P.C. 2517 N. Main Avenue

5 San Antonio, Texas 78212 Telephone: 210-227-3243

6 E-mail: [email protected] COUNSEL FOR PLAINTIFF

7 Bill Aleshire

8 State Bar No. 24031810 Riggs Aleshire & Ray

9 700 Lavaca Street Suite 920

10 Austin, Texas 78701 Telephone: 512-457-9806

11 E-mail: [email protected] COUNSEL FOR INTERVENOR

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13 Kimberly Fuchs State Bar No. 24044140

14 Texas Attorney General's Office PO Box 12548

15 Austin, Texas 78711-2548 Telephone: 512-475-4195

16 E-mail: [email protected] COUNSEL FOR ATTORNEY GENERAL'S OFFICE

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1 PROCEEDINGS

2 September 30, 2013

3 THE COURT: Okay. The Court will Cause

4 No. D-1-GV-12-001731, the City of El Paso vs. Greg

5 Abbott. Is that correct?

6 MR. DENTON: Correct.

7 THE COURT: All right. Counsel, if you

8 would announce who you are and who you represent.

9 MR. DENTON: Yes. Lowell Denton from the

10 City of El Paso appearing with Scott Tschirhart from my

11 office. We are ready to proceed on our plea to the

12 jurisdiction and then, pending the Court's determination

13 on that motion, potentially on the motion to quash

14 discovery.

15 THE COURT: I'm sorry, your name, sir?

16 MR. TSCHIRHART: I'm Scott Tschirhart,

17 Your Honor.

18 THE COURT: How do you spell your last

19 name?

20 MR. TSCHIRHART: It's spelled

21 T-S-C-H-I-R-H-A-R-T, Your Honor.

22 THE COURT: Okay.

23 MR. ALESHIRE: Your Honor, my name is Bill

24 Aleshire. I represent the intervenor, Stephanie Allala,

25 A-Y-A-L-A. And we are ready.


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1 THE COURT: All right. Let's see, from

2 the City, why don't you tell me what the case is about

3 and then we will get into the substance of the case.

4 MR. DENTON: Certainly, Your Honor. This

5 case is about a Texas Public InforMation Act case. It's

6 about obtaining information, City public information

7 records from the City of El Paso in connection primarily

8 with the government of the ball park out there,

9 longstanding controversy that was adjudicated on a 1205

10 Nonvalidation Proceeding in front of Judge Sulak some

11 time ago in this courthouse.

12 The requestor, Stephanie Allala, filed

13 several requests with the City of El Paso, very

14 voluminous requests, for communication among council

15 members, City staff, and outside individuals.

16 When that request was filed, the City

17 responded, in part, and under the statute -- and I will

18 get to the statutory references in a minute -- filed a

19 request to the Attorney General to determine whether or

20 not the information was appropriate to be produced,

21 citing exceptions and so forth.

22 The Attorney General made a determination,

23 and under the statute, the City of El Paso filed suit

24 against the Attorney General to contest the public

25 nature of some of that information.


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1 This plea to the jurisdiction is before

2 the Court. And as the Court knows, this Court's

3 jurisdiction is framed by the pleaded allegations.

4 THE COURT: Before we go into the

5 substance, I just wanted to get an understanding.

6 MR. DENTON: That's the nature of the

7 case. The rest of the nature is the City changed its

8 position and now agrees with the Attorney General and

9 has done what the Attorney General determined. We

10 believe the case has been mooted by that development.

11 THE COURT: Oh, okay. And so, in other

12 words, you've produced what the Attorney General said

13 was public information and that you should produce.

14 MR. DENTON: Yes.

15 THE COURT: Mr. Aleshire?

16 MR. ALESHIRE: Your Honor, Ms. Allala was

17 the -- one of the requesters of the information. She

18 asked for correspondence that had occurred between the

19 City Council members and made it clear in the request

20 that it didn't matter to us whether that correspondence

21 occurred through -- like e-mails -- occurred through the

22 city computer, or whether they corresponded with each

23 other on official business using their personal e-mail

24 accounts.

25 In the request to the Attorney General,


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1 that issue came up. The Attorney General addressed that

2 in their ruling.

3 Under the Public Information Act, if a

4 governmental body sues the Attorney General, they have

5 to sue them here.

6 But the requester is permitted to

7 intervene. And Ms. Allala intervened with the petition

8 asking that all of the information that she had

9 requested be turned over.

10 And one of the -- one of the smaller

11 issues that's relevant to the plea to the jurisdiction

12 is, when they did disclose the information, they

13 redacted the personal e-mail address that was used by

14 the public officials in communicating with each other.

15 There is a section in the Public

16 Administration Act that makes e-mail addresses of a

17 member of the public, for purposes of communicating with

18 the governmental body, confidential.

19 We also argue in this case that they

20 should not have redacted that information. So that's a

21 separate issue as to whether they turned the records

22 over.

23 The issue of fact that is before the Court

24 underlying the plea to the jurisdiction is whether they

25 have actually turned over all of the records that


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1 Ms. Allala asked for.

2 That is where the depositions come in. We

3 have not had the opportunity to conduct depositions of

4 these custodians.

5 THE COURT: Mr. Aleshire, before we go

6 into the underlying argument, let me turn it back over

7 to the City for purposes of their argument on the plea

8 to the jurisdiction, only because I want to get an

9 understanding of what the case is about.

10 MR. ALESHIRE: Our position is that Your

11 Honor should not decide the plea to the jurisdiction

12 until we have been permitted to do at least the basic

13 depositions to see if there is records still out there.

14 MS. FUCHS: Your Honor, I'm Kimberly Fuchs

15 from the Attorney General's Office. And I apologize for

16 walking in a couple minutes late. I was in uncontested

17 and I started talking to Judge Meachum about the new

18 statute dealing with the -- with the courts handling the

19 records, and I lost track of time. I didn't know how

20 close to 9:00 it was.

21 We don't have anything on file. We are

22 not opposing the plea to the jurisdiction. But -- and

23 we are not taking a position on the motion for discovery

24 to decide the plea, so I'm just here to represent the

25 Attorney General.


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1 THE COURT: All right.

2 MS. FUCHS: But I don't need any speaking

3 time.

4 THE COURT: All right. Thank you.

5 Counsel, I will let you go ahead and do your plea to the

6 jurisdiction.

7 MR. DENTON: Thank you. May it please the

8 Court. I would ask the Court --

9 THE COURT: Do you have a book for the

10 Court or --

11 MR. DENTON: I do. May I approach?

12 THE COURT: I saw a lot of binders over

13 there.

14 MR. DENTON: Yes, indeed. And that's

15 mostly for reference. It will not be the focus of a

16 great deal of my discussion. I will hand the Court a

17 copy of some cases here in a moment.

18 As I started to outline for the Court,

19 this plea to the jurisdiction litigation in the context

20 of the Public Information Act is very unique.

21 Under Texas law, the plea -- the Court's

22 jurisdiction is framed by the pleadings. And so the

23 Court has to look at what's happened here under the

24 Public Information Act.

25 Under 552.321, 324, and 325, there are


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1 lawsuits that are permitted. City of El Paso has

2 immunity from litigation over this issue except as that

3 immunity has been waived under the Public Information

4 Act. Those sections of the Act, 552.321, 324 and 325

5 are the circumstances under which litigation can take

6 place. We filed this lawsuit against the Attorney

7 General to contest the issue.

8 Now, as the Court knows, I'm sure, what

9 typically happens under the Texas Public Information

10 Act, it doesn't involve any courts. A request is made

11 to the City.

12 The City decides what it thinks the law

13 is, produces information. And if it doesn't believe

14 that some of that information can be produced, the

15 Legislature has set up a very effective process that's

16 worked hundreds of times, maybe thousands of times a

17 day, with 254 Texas cities over all of the different

18 counties that are involved all over the State of Texas

19 and other state agencies. And those are carried out by

20 sworn governmental officials.

21 They are not court-supervised. They are

22 not the subject of discovery. They are the subject of

23 individuals complying with the Act. That request goes

24 to the Attorney General that receives the relevant

25 materials and makes a determination pursuant to the


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1 public policy that's in the Public Information Act. And

2 that happened in this case.

3 The City of El Paso could have chosen to

4 just give the information and there would have been no

5 case or controversy in terms of jurisdiction of Texas

6 courts.

7 The City decided that it disagreed with a

8 part of the Attorney General's determination and filed

9 this lawsuit. As they are entitled to do, the

10 intervenors intervened in the case. And their pleadings

11 only say two things. They want us to produce materials

12 that they originally asked for.

13 Their pleadings do not raise any issue of

14 the City's refusal to produce information, which is the

15 subject of a separate statute for mandamus. This is not

16 a mandamus action. This is an action to determine which

17 records are to be produced.

18 If the City had agreed to begin with, that

19 would be the law in that particular dispute.

20 In this case, having conceded judicially

21 in this case, because there is another court that's

22 involved here; that's a euphemistic term, it's a court

23 of public opinion.

24 Democracy in El Paso changed directions

25 during the course of this case. After we were retained


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1 and authorized and there was an issue that we were

2 authorized in the past, authorized to file this lawsuit

3 on behalf of the City of El Paso, and to take issue on

4 the legal questions that were involved, the democratic

5 process changed the public policy position of the City

6 of El Paso.

7 And the City Council directed that we

8 throw in the towel, which we have done. So we have

9 judicially conceded that the Attorney General's

10 determination is correct, and we accept it.

11 So our original lawsuit, normally, would

12 just result in a nonsuit and we would be done but for

13 the intervention. The intervention raises no new issue.

14 It does not say that we have refused to produce any

15 public records.

16 Now, under the Giggleman case, which I

17 want to hand you a copy of real quick, the case that was

18 decided by Judge Yelenosky here to begin with, went to

19 the Court of Appeals.

20 THE COURT: I think it's in your book,

21 isn't it?

22 MR. DENTON: I don't think it's in the

23 book. So I am going to hand you, if I may, this one

24 because it's highlighted.

25 So what I would like to point out -- and I


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1 will just summarize and the Court can look at the

2 highlighted sections there -- under these statutes that

3 we are talking about, the City has produced -- and I

4 will get to our plea to the jurisdiction evidence in

5 just a moment -- the records that are in question.

6 THE COURT: You are talking about the

7 facts, is that right?

8 MR. DENTON: No. I'm talking about in the

9 case that you are looking at here, the El Paso case, the

10 City has produced these records. And I will get to, in

11 a minute, the affidavit from Joyce Wilson, the City

12 Manager, that's attached to our plea.

13 But I want the Court to understand the

14 context that the City has produced those documents,

15 posted them on its website, and given them to the

16 intervenors.

17 So there may be questions about, we think

18 something wasn't included that was an attachment. There

19 may be questions about why there is missing page 16 on a

20 particular document. That happens all the time. That's

21 not an issue for judicial determination.

22 The City of El Paso is now bound to do

23 what the Attorney General determined that they were

24 bound to do. It is that law of the case outcome

25 that's -- that is in existence today, that moots this


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1 Court's jurisdiction under Giggleman.

2 What happened in Giggleman was fairly

3 complicated. He was a veterinarian medicine doctor. He

4 got accused of violating the Texas statutes. His

5 license was at risk. He was trying to get a copy of the

6 complaint and all of the exhibits that were attached to

7 it, and that's what the fight was about.

8 Ultimately the Veterinarian Medical Board

9 produced to him all of the exhibits to the original

10 complaint. They did that after a summary judgment

11 motion was granted in favor of that veterinarian medical

12 doctor by Judge Yelenosky.

13 The Court concluded that, once they

14 produced all the exhibits, the case was moot and the

15 Court lost jurisdiction. And that's exactly where we

16 are today.

17 In this case, the only question that's

18 before the Court in the pleadings is the law of the case

19 represented by the Attorney General's determination.

20 The City of El Paso fully and completely intends to

21 comply with it.

22 Now, Mr. Aleshire is going to argue that

23 this Court should continue to exercise jurisdiction it

24 doesn't have in order to allow him to go chase down

25 rabbits about whether or not somebody has a document


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1 that is not in the City's possession, that isn't on a

2 City computer, that's not at a City office, that the

3 City can't get.

4 What the Court will see -- and we have in

5 our jurisdictional evidence here, offered the affidavit

6 of Joyce Wilson, who is the City Manager. And her

7 testimony in that affidavit, for jurisdictional

8 purposes, establishes that the City has obtained,

9 assimilated, put together, and published on its website

10 all of the -- all of the documents that are responsive

11 to the request per the Attorney General's determination.

12 And having done that, we are finished.

13 If issues happen after this Court

14 dismisses this lawsuit that are within the scope of that

15 Attorney General's decision, Mr. Aleshire can pick up

16 the phone or write us a letter, and we will go get it

17 and find it and produce it to him, because that's our

18 legal obligation under the law. That is the law of the

19 case as we speak today. That doesn't require court

20 supervision.

21 Under the Public Information Act,

22 discovery running down all of these people that might

23 have had a document is not authorized under the statute.

24 It says nothing about that.

25 Under Mr. Aleshire's version, what could


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1 happen is, is that somebody could make a request to the

2 City of Austin for something that had do with the fire

3 run, and then go depose all of the people on the fire

4 truck that had a personal computer about what they put

5 on Facebook after they went on an emergency run for the

6 City of Austin.

7 This lawsuit, Judge, is against the City

8 of El Paso. It's not against all those other people,

9 present or former public officials.

10 It is defined by the Act. The Court's

11 jurisdiction is defined by the Act. And having released

12 all the information and accepted the law of the case,

13 the Court has lost jurisdiction.

14 I will wait to talk about the other

15 issues. But I think it's important for the Court to see

16 the distinction here.

17 Some of these other cases, like the City

18 of Dallas cases that deal with public information that

19 are cited in our pleading, those are cases that deal

20 with whether or not public information, by definition,

21 includes things that are on the private personal

22 computer of other individuals.

23 But the City of Dallas case makes it clear

24 that a case against the city government is limited to

25 things that the city has or has a right of access to.


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1 There is no jurisdictional pleading here

2 that says that the city has a right of access to

3 something that it has not provided, and that's a

4 critical fact.

5 THE COURT: And I will let Mr. Aleshire

6 make his argument.

7 MR. DENTON: Thank the Court.

8 THE COURT: Counsel?

9 MR. ALESHIRE: Thank you, Your Honor.

10 Well, I agree with most of what Mr. Denton

11 said about the process. If an open records request is

12 refused and they request an Attorney General's opinion.

13 But he left out an important thing.

14 The requester, under the Public

15 Information Act, has authority under Section 552.321 --

16 and, Your Honor, I've included -- it's stuck in the --

17 in the responses that I have given a copy of the Public

18 Information Act as well as the Local Government Records

19 Act.

20 And under 552.321, a requester can file

21 suit any time if they have been denied records that they

22 asked for.

23 Perhaps what I should do, Your Honor, if

24 you don't mind, let me just walk you through real quick

25 what I have given you.


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1 THE COURT: Sure.

2 MR. ALESHIRE: There is a document called

3 Intervenor Allala's Response and Objections to the

4 Plaintiff El Paso's Plea to the Jurisdiction.

5 And included in there is a supplemental

6 that we just filed last night -- and I provided a copy

7 this morning -- that gives the Court some additional

8 case law on this core issue of whether or not the Court

9 should decide the plea to the jurisdiction before there

10 has been a reasonable opportunity for us to conduct

11 discovery on the core issue of whether they've actually

12 turned the records over. That is a core fact issue. It

13 is the essence of our pleading. We intervened and filed

14 suit.

15 And by the way, Your Honor, I point out to

16 you, we asked for a writ of mandamus, as we are

17 authorized to do, to turn over all the records.

18 So the key fact issue that would make the

19 case moot is whether or not the City has, in fact,

20 turned over all the records that are covered by the

21 Public Information Act.

22 This case kind of becomes a big deal, as I

23 will explain -- as we get through this, because if a

24 city official can correspond offline using their

25 personal e-mail address for official -- for the


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1 transaction of official business and are left to decide

2 whether or not to turn that over to the City. And if

3 they decide not to -- which we have in this case by the

4 way; one of the pieces of evidence we have in here is a

5 statement from former El Paso representative Steve

6 Ortega, indicating he declines to provide the

7 information to the city. So there is evidence right

8 there that there is some records we've requested that

9 are not -- that has not been turned over.

10 The other thing I provided Your Honor

11 is --

12 THE COURT: So former representative Steve

13 Ortega states that he has, in fact, conducted official

14 business on his personal phone or e-mail?

15 MR. ALESHIRE: And declines to turn over

16 those records, the requested records.

17 When we framed the Open Records Request,

18 we were very careful to be indicate that all we were

19 asking for is records that were in the transactional

20 official business.

21 And, if you will, Your Honor, let me show

22 you what I have separated. In here there is a copy of

23 the -- Section 552.2137 of the Public Information Act.

24 That's the provision regarding whether they can redact

25 e-mail addresses of City Council members, and whether or


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1 not those e-mail addresses are e-mails addresses of the

2 members of the public.

3 Most important is that next document, it's

4 552.002. That's the definition of what public

5 information is. And it is not information that's just

6 in the possession of the governmental body. It's

7 information that the governmental body owns or has a

8 right of access to.

9 Then Section 552.321, which is the suit --

10 that is the section under which we brought this lawsuit,

11 our pleadings, the essence of our pleading, says,

12 intervenor seeks an order of mandamus against the City

13 of El Paso pursuant to 552.321 to disclose all of the

14 information intervenor requested in the request dated

15 September 5th and October 5th, 2012.

16 And then the next section of statutes I

17 have given you is out of what's called the Local

18 Government Records Act. I tell folks in conversation

19 about open government Texas, this is the neglected area

20 of law that has a big deal to do with open records,

21 because these are the statutes that define what a public

22 record is, and what has to happen to it.

23 Most importantly, Your Honor, I would

24 point out that in Section 201.009, it says that local

25 government records are subject to the TPIA. That's a


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1 real simple statement. But our argument, Your Honor, is

2 that when you are looking at the reach of the Public

3 Information Act, if a local government record has been

4 created or received in the transaction of official

5 business by a city official or employee, it's subject to

6 the Act.

7 And the other -- these other provisions --

8 and I have put them in the brief, and I will refer to

9 them as we get into that argument. Local government

10 records are owned by the government. They are

11 government property. The Local Government Records Act

12 even says that the individual employee who creates the

13 record has no ownership interest in it.

14 So, one of the kind of hidden issues that

15 Your Honor would need to decide is the reach of the

16 Public Information Act, and whether it reaches anything

17 that would be a local government record.

18 Our contention is that, fundamentally, we

19 are entitled to do discovery to determine whether there

20 are local government records that are still out there in

21 the possession of -- and by the way, Your Honor, public

22 officials are required by the Local Government Records

23 Act as well, to turn over their records to their

24 successor. In fact, it's a class A misdemeanor if they

25 don't.


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1 So if even former officials have a

2 statutory obligation to turn those records over that are

3 owned by the city, and the city has an obligation, under

4 the Public Information Act, for both current officials

5 and former officials -- anyone who has a local

6 government record in their possession can be compelled

7 to give that to the government so the government can

8 give it to us.

9 The other document I gave you is our

10 response to their motion to quash. They initially filed

11 those objections based on time and place.

12 I made it real clear, including to Scott

13 this morning, that we are willing to work with them on

14 when the depositions would occur.

15 After Mr. Ortega submitted his statement

16 to the City that he wasn't going to turn those records

17 over, we issued a notice of intent to subpoena him for

18 deposition to find out what records he's got. And we

19 set that deposition for December 4th.

20 I haven't mentioned this, Your Honor, but

21 the circumstances we were operating in, and the way

22 we've got here today, Ms. Fuchs is leaving on leave from

23 the Attorney General's office this Friday the 4th, and

24 won't return until December.

25 She wants to participate or be present for


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1 the depositions, so I was doing everything I could to

2 try to schedule the depositions before she left.

3 The City Manager and former Council Rep

4 Niland and Council Member Byrd, we set those depositions

5 for Wednesday morning, Wednesday afternoon, and Thursday

6 morning of this week.

7 And we did that 30 days ago. We served

8 them with all the notices. We served the individuals

9 with all the notices.

10 But we are willing to postpone those if

11 Your Honor decides -- so Ms. Fuchs can participate. I

12 got a feeling this is going to go up, Your Honor, one

13 way or the other.

14 If you grant the plea to the jurisdiction

15 without affording us an opportunity to conduct

16 discovery, we think that's error that actually makes it

17 almost impossible for us to ever prove whether or not

18 they turned over the records or not, because we were

19 never allowed to do the discovery.

20 And I suspect that if Your Honor does what

21 we are asking, which is, just don't act on the plea to

22 the jurisdiction but permit us to do the targeted

23 discovery to determine whether or not they had, in fact,

24 turned over all the records -- even the City of El

25 Paso -- we have evidence that we included in here in


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1 affidavit, when they sent us the e-mails, they didn't

2 include the attachments.

3 So they withheld -- right there, the City

4 withheld information that was covered by the request and

5 just -- and it wasn't contested with the Attorney

6 General, but that's irrelevant.

7 If the Attorney General had never become

8 involved in this case, we are still entitled to make a

9 request. If it's turned down, we are entitled to go to

10 court.

11 It's a venue difference. That's all it

12 is. If the City says, we are not giving you any

13 information, we are not asking for an AG opinion, I

14 ought to have the suit in El Paso, because venue would

15 be there, just the suit, between the requester and the

16 City.

17 But once the City asks for the AG ruling

18 and doesn't want to comply, they have to sue the

19 Attorney General here in Travis County. And we

20 intervened here. So our lawsuit is the same under

21 552.321. We didn't have to wait for an AG opinion in

22 order to sue.

23 Now, there hadn't been any mention of the

24 standard that the City must meet in order to get their

25 plea to the jurisdiction. And it is similar to a


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1 summary judgment. They must prove as a matter of law

2 the fact. The fact is whether or not the City has

3 turned over all the records.

4 Since the -- that is the core part -- most

5 of the time, Your Honor, as you know, you don't -- you

6 don't have to take discovery in every plea to the

7 jurisdiction.

8 But if there is an underlying fact

9 question, you should take evidence. But then you've got

10 the issue of whether or not the parties have both been

11 provided an opportunity to do discovery to submit the

12 evidence that would go to this fact.

13 The cases that I cite for you are cases

14 that say that -- from the Supreme Court, that the

15 discovery goes to the core issue of the pleading. We

16 said, Give us these records; you haven't given them to

17 us; we have gone to the court; we want you to give us

18 those records. That's the core part of our pleading, we

19 must be allowed to do discovery.

20 There is a couple of cases that, I think

21 are particularly helpful. In the supplement that I gave

22 you this morning, Your Honor, at paragraph 5 on page 2,

23 it's our supplemental response.

24 There is a case that -- the Diocese

25 Galveston Houston vs. Stone. This is a case where a


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1 teacher --

2 THE COURT: Do you have a copy of it?

3 MR. ALESHIRE: Yes, I do, Your Honor.

4 Mr. May was a teacher at the Catholic

5 school, and he got fired. And he filed suit against

6 them. Because of the issue of First Amendment of

7 Separation of church and state, the Diocese filed a plea

8 to the jurisdiction and said, Hey, he was fired for

9 religious reasons.

10 And, Your Honor, if you would look around

11 175 to 176 in the -- I'm sorry, I didn't get time to

12 mark it this morning.

13 THE COURT: Let's see. What page is it on

14 this? On top, what page number is that?

15 MR. ALESHIRE: If you look on page 9,

16 Headnote 17.

17 You will see that what May said is, Wait a

18 minute, I wasn't fired for religious reasons. And the

19 school went up after the -- what the Court did in that

20 case -- in fact, Your Honor, if I could go back a bit.

21 There is an interesting discussion. If you will look on

22 page 7 -- can I approach, Your Honor, and show you where

23 I am?

24 THE COURT: Yes.

25 MR. ALESHIRE: On page 7, this paragraph


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1 right here. Notice what it says down in that -- "In

2 discussing the plea to the jurisdiction with the

3 lawyers, trial Judge Kathleen Stone opinioned that the

4 constitutional issue of separation of church and state

5 would more properly presented in a motion for summary

6 judgment, following limited discovery to respond to the

7 jurisdictional attack.

8 "May filed a motion to take limited

9 discovery in a motion to compel. Judge Stone entered an

10 order expressly withholding a ruling on the plea to the

11 jurisdiction allowing limited discovery and providing

12 for post discovery presentation of the jurisdictional

13 issue in the motion for summary judgment as

14 appropriate."

15 THE COURT: Counsel, I had a case -- I

16 think it's still up on the Court of Appeals, though, but

17 it was related to the -- you know, the Court -- related

18 to the state and its restrictions, what TexDOT did was

19 place restrictions on allowing H-2 workers to get

20 driver's licenses. And I ruled against the State

21 Department.

22 But, initially, at the plea to the

23 jurisdiction, I did not grant or deny. I allowed

24 discovery on that very issue -- was whether they were,

25 in fact, not allowing individuals who came into their


27

1 facilities to get driver's licenses as a basis --

2 because they were H-2 workers, and they were not here

3 more than a year, which is longer than -- they had set a

4 restriction that was broader than the federal court, so

5 I said they couldn't do that.

6 And so ultimately that's what I ruled, but

7 I allowed discovery on that issue, which is what the key

8 issue is. So I would agree with you, under certain

9 circumstances, the Court should deny a plea to the

10 jurisdiction -- or not grant or deny, but basically

11 postpone it, allowing some discovery. And then

12 ultimately I denied the jurisdiction, and that's what

13 went up.

14 MR. ALESHIRE: That's exactly what

15 happened. And on page 9 --

16 THE COURT: So I'm familiar with this

17 concept of why it goes to the core issue that maybe we

18 should allow some discovery.

19 MR. ALESHIRE: And the Court of Appeals

20 held here that several -- especially the nature of the

21 discussion of the case before us, whether or not -- and

22 this is -- that was at 176 and 177.

23 THE COURT: Is that back to the Headnote

24 17?

25 MR. ALESHIRE: That's Headnote -- it is 20


28

1 and 21 on page 11.

2 It says, "Similarly, the speculative

3 nature of the discussion of the case before us, which is

4 whether or not Mr. May had been fired for religious

5 purposes or secular purposes, which would invoke the

6 First Amendment issue or not. Demonstrates why it was

7 premature for Judge Stone to foreclose this case on

8 judicial grounds."

9 And they ended up holding at 177 further

10 down that: "We believe that the trial court did not

11 abuse its discretion in allowing limited discovery to

12 clarify the context of the Diocese jurisdictional plea

13 to determine whether the decision to fire May was

14 religious-based. Further, because Judge Stone has not

15 yet ruled on the plea to the jurisdiction because her

16 order contemplates an adequate remedy at law, mandamus

17 will not lie at this stage of the proceeding." There is

18 other cases along the same line.

19 The last thing I would say, Your Honor, I

20 think that, under rules of discovery, considering we

21 haven't been able to do discovery on this core issue of

22 whether they, in fact, withheld records that we are

23 entitled to, but they have the burden to prove as a

24 matter of law that they have -- that they had in fact --

25 even the City has, even if you accept their idea, that


29

1 if current -- we have evidence in our -- in here, for

2 example, that the City Manager has not turned over some

3 correspondence that she conducted on her personal

4 computer.

5 THE COURT: Could you identify where that

6 evidence is?

7 MR. ALESHIRE: Yes, Your Honor.

8 We start on page 10 of our response to the

9 plea, paragraph 19. I had numbered our exhibits "I" for

10 "Intervenor." And here is -- here is our evidence to

11 respond to them that -- they have provided at Exhibit

12 I-8, the affidavit of Joyce Wilson. She is the City

13 Manager.

14 We ask the Court to strike that affidavit

15 as being conclusory and full of unsubstantiated factual

16 and legal conclusions. There is nothing in this

17 affidavit, even though Ms. Wilson claims that the City

18 gathered all the information in their control, their

19 lawyer is arguing that if an individual decides to hold

20 back a local government record and keep it in their

21 personal e-mail account, that it's not within the City's

22 control. That's the issue under the definition of

23 public information.

24 If it's a local government record, they do

25 own it, under the Local Government Act. And if they own


30

1 it, they have a right of access to it, and they should

2 be compelled to go get it from the officials, if it's

3 local government record.

4 Then the other thing, Ms. Allala says, it

5 says: "The City of El Paso conducted a diligent

6 search" -- this is down toward the bottom of her

7 deposition -- "for the information and does not have any

8 additional responsive documents."

9 But the affidavit does not explain any

10 factual basis on how she concluded -- conclusionary,

11 concluded that they performed a diligent search. What

12 did they do? The affidavit gives this Court no

13 information to judge whether they even did a diligent

14 search within the City to locate those.

15 We believe the Wilson affidavit, which is

16 the only evidence they've submitted in support of the

17 plea, is deficient.

18 But we will go another step. There is

19 evidence from our side that they actually didn't turn

20 over all the information.

21 The first item on page 11, paragraph 20,

22 they didn't give us any of the attachments that were

23 attached to those e-mails. We got the e-mails. We have

24 done through them and done a diligent search. And at

25 Exhibit I-9, I provide an affidavit from my client who


31

1 actually has the paper copy of the records that the City

2 gave. And she has gone through all of them and searched

3 for the attachments that are shown on the e-mails, and

4 then provided some examples of e-mails that showed they

5 have attachments. But the attachments were not included

6 with what the City provided.

7 Secondly, we told you about Steve Ortega,

8 Exhibit I-6. It's his statement where he says that what

9 the City did in August was to go out and send letters to

10 all of these City Council members, former City Council

11 members, and City Manager, and asked them to voluntarily

12 turn over everything to the City. And, he gave them

13 until September 16th to do so.

14 THE COURT: I am looking at that request.

15 And that was the request that was sent. It doesn't even

16 try to limit the e-mail request that relate to the

17 public official business.

18 I mean, I am just looking at that exhibit.

19 So that individual might say, Well, I am not going to

20 give you my private e-mails that I am sending to my

21 mother. But it doesn't at any time indicate -- I am

22 only looking for, you know, your personal e-mails.

23 MR. ALESHIRE: I didn't include it, Your

24 Honor, but it's included in their -- as an attachment in

25 their motion.


32

1 The letter from the City repeated the

2 request, the language from the request. And our request

3 was for e-mails, including e-mails using personal

4 e-mails accounts, letters, memorandum, notes, and other

5 forms of written communication regarding any matter of

6 public business of the City of El Paso.

7 So the request that Mr. Ortega received --

8 and there are several requests. And by the way, Your

9 Honor, I hadn't mentioned this. We are not the only

10 requester who is affected by this case. There were, I

11 think, three or four other -- that is the City -- they

12 had gone to the Attorney General and asked to withhold

13 records and then incorporated those requests in this one

14 lawsuit. Those others have not chosen to intervene, at

15 least not at this point.

16 There is also -- if you will look at

17 Exhibit I-11, the last exhibit, this is -- there was a

18 request from -- while the request was for a copy of the

19 e-mails the City Manager received from certain citizens

20 about the ballpark issue in the petition for it.

21 I-11 is an e-mail that was disclosed to

22 the City. But if you read it, it says -- if it matters,

23 Ms. Wilson writes that these were sent to me by several

24 citizens who attended some of the forums last week. And

25 she's cut and pasted part of the e-mail that she


33

1 received about the decision process and the petitions

2 and so forth.

3 Well, the request was for the originals of

4 those requests and any of the e-mails the City Manager

5 was conducting offline. They sent them to her, not on

6 the City site. They sent them to her on her personal

7 e-mail account. And this hasn't been turned over.

8 So here is one that even the City Manager

9 has apparently not turned over to the City and not

10 provided.

11 I think that's enough, Your Honor, to at

12 least raise a fact issue as to whether or not the City

13 has proven as a matter of law that all the records have

14 been turned over.

15 But even if we didn't go there, we

16 wouldn't even have to consider that, considering that

17 all the depositions that we are asking to do would be

18 targeted, and we are willing to accept the limitation of

19 those depositions and the questions that I would ask,

20 they are scheduled for a short period of time each,

21 would be directed to determine what records they had,

22 where they are, whether they have been turned over.

23 And we are willing to work on the

24 scheduling. We had proposed that they occur at my

25 client's law office in El Paso, which is one block from


34

1 the city hall. They objected to that as not being a

2 neutral location. We will work with them on that.

3 They objected to the date of this week on

4 the depositions of Wednesday and Thursday. But the City

5 Council meets on Tuesdays, and they are closed -- the

6 city government is closed on Fridays. So I had kind of

7 a small window to meet Ms. Fuchs' schedule as well.

8 THE COURT: Ms. Fuchs, so when are you

9 due? I'll ask that question.

10 MS. FUCHS: I'm due on Sunday, Your Honor.

11 THE COURT: On Sunday. All right. So you

12 might not even make it until Thursday?

13 MS. FUCHS: That's true, Your Honor.

14 THE COURT: Okay.

15 MR. DENTON: May I, Your Honor?

16 THE COURT: Yes. Are you going to add to

17 her when she's due?

18 MR. DENTON: No.

19 THE COURT: Okay. I am going to let you

20 respond.

21 MR. DENTON: I am just waiting my time.

22 THE COURT: Okay. And I know you are not

23 taking a position; is that correct?

24 MS. FUCHS: That's correct, Your Honor.

25 MR. ALESHIRE: Your Honor, just the best


35

1 review that I did in relationship with the local

2 government records and how that ties in is in the

3 response to the motion to quash.

4 And it's not real long, but it cites each

5 of the provisions of the local government record in how

6 that Act ends up building up to a level of defining what

7 the records are that may still be out there, and why the

8 City has an obligation as the owner of those records to

9 go get them and give them to us.

10 THE COURT: Did you want to respond to the

11 Giggleman case?

12 MR. ALESHIRE: Your Honor, first of all,

13 that was an issue about attorney's fees. And it isn't

14 as clearly an issue of whether or not a fact condition

15 existed. I also don't know whether or not they were

16 able, in that case, to have conducted discovery.

17 The difference here is we haven't been

18 allowed to depose any of these witnesses to find out

19 whether the underlying fact question -- I saw this case.

20 I didn't think it was relevant to this, the issue of

21 whether or not they prevailed on attorney's fees.

22 And it says that their claim for his

23 relief was rendered moot before final judgment when the

24 board had eventually produced the disputed exhibits to

25 them, obviating any judicial controversy regarding his


36

1 entitlement to the writ. But we don't have any evidence

2 that proves as a matter of law nor have we had an

3 opportunity to determine whether the City has turned

4 those over.

5 The issue of whether or not the board had

6 turned all the disputed records over to Giggleman wasn't

7 disputed in this case. It's disputed in this case as to

8 whether the City has turned over all the records.

9 THE COURT: Okay. And it's Mr. Denton,

10 correct?

11 MR. DENTON: Yes, Your Honor.

12 THE COURT: Mr. Denton, it seems to me --

13 and I wanted to let you both know that I had that case

14 with the Department.

15 Actually, like I said, I think it's still

16 before the Court of Appeals. I know it's still before

17 the Court of Appeals. But I made that ruling a couple

18 of years ago.

19 But it seems to me that if the Court issue

20 here, and some of the evidence produced by Mr. Aleshire

21 is that documents haven't been -- haven't been produced

22 completely and, you know, even without looking at the

23 affidavit and making rulings on their objections to your

24 City Manager's or mayor's --

25 MR. DENTON: Yes, ma'am.


37

1 THE COURT: -- affidavit, that the

2 attachments weren't produced. You've got one

3 representative -- is the representative -- is that the

4 same as the City Council member here and you call them

5 representative there? -- that a City Council member is

6 saying, I am refusing to turn over any documents that I

7 may have on my e-mail account, my personal e-mail

8 account that relates to conducting official business.

9 You have those right there saying not

10 everything has been turned over. How can the Court then

11 grant the plea to the jurisdiction on that issue,

12 because your position is that issue is moot, we have

13 turned over everything, so there is nothing before this

14 Court to decide?

15 MR. DENTON: Let me answer the Court real

16 directly then.

17 I think that Giggleman, or Giggleman, or

18 however you say it, clearly indicates that when there

19 has been -- Giggleman.

20 THE COURT: Giggleman.

21 MR. DENTON: Giggleman. On the issue that

22 was the case of controversy before the Court, under the

23 limited jurisdiction of the Texas Public Information

24 Act, has been resolved. And in this case, it has been

25 resolved by the City's change of position in judicial


38

1 admission.

2 Ms. Allala's affidavit on this business

3 about the attachment that she's diligently searched,

4 she's determined that many e-mails attachments were not

5 included. Some examples are provided with Exhibit A.

6 And she attaches a number of those.

7 Joyce Wilson's affidavit says, The City

8 has produced them all and posted them all on its

9 website.

10 Now, in circumspect here, Judge, I'm

11 limiting my comments to what is on the record about the

12 jurisdictional evidence.

13 The website has the attachments on it. We

14 don't believe that the fact that we may still -- we

15 still have a legal duty to produce everything in

16 accordance with the AG's determination. That was the

17 case for controversy.

18 I don't believe that jurisdiction means

19 that if they can find a page 18 somewhere that was

20 missed in the copying process inadvertently, that the

21 Court has jurisdiction over page 18. And that's

22 effectively what they are arguing.

23 THE COURT: If I put it on the website,

24 but I have not produced it to the intervenor, then that

25 should take care of that problem.


39

1 MR. DENTON: That is what I am arguing.

2 Now, I agree with the principle that if the Court cannot

3 determine the core facts that give rise to jurisdiction

4 in Giggleman, there is no controversy. It just says in

5 there -- it doesn't say anything about discovery. It

6 just says that the board turned over all the exhibits.

7 That's what the City chose to do. That's what we have

8 confessed before this Court by judicial admissions, that

9 we have changed our mind.

10 THE COURT: I need to address the

11 objection to that affidavit on that point, because there

12 is nothing in there that says, this is what the City

13 did -- you know, it is a conclusion, just as

14 Mr. Aleshire has indicated.

15 MR. DENTON: And I agree with the Court's

16 concept about that.

17 MR. ALESHIRE: I'm sorry, but I probably

18 should object to the introduction of issues about the

19 website. I'm not aware of what's on the website at all.

20 And I don't know if it's been proven that the

21 attachments are actually on the website and when they

22 got on there.

23 THE COURT: And I am --

24 MR. ALESHIRE: And there is no mention of

25 it in the affidavit.


40

1 THE COURT: And that's what I was looking

2 for. It says, The public availability of the

3 information disclosed on the city of El Paso website,

4 and it provided them with link address.

5 MR. DENTON: The first issue, as I see it

6 for the Court, is whether or not there is some question

7 about whether or not we had complied with the Attorney

8 General's decision.

9 THE COURT: That's what I presented to you

10 first. That's the question. It seems from

11 Mr. Aleshire's perspective, there seems to be -- there

12 is to be -- there seems to be some evidence that shows

13 that City hasn't.

14 MR. DENTON: And I have a proposed answer

15 for that that's short of taking a bunch of lawyers to El

16 Paso and deposing a bunch of people, which I think it's

17 totally unnecessary. But that's really under the motion

18 to quash.

19 Secondarily, I think the argument goes way

20 beyond that when you talk about trying to discover

21 information from a person that's no longer an employee

22 or an officer of the City of El Paso and not a party in

23 this case.

24 The Court has no jurisdiction over that

25 question. And I think it's important -- I will hand the


41

1 Court, if I may approach, Judge, a copy of the Dallas

2 Morning News case. Counsel has it and is familiar with

3 it. I think it is on page 4 there in that opinion.

4 There is a couple of things that I just

5 want to point out to the Court. There are two things

6 here that are fatal and that continue to be fatal. In a

7 case against the City of El Paso, which is what we are

8 here on today, that they can get records by discovery,

9 subpoenaes, and depositions of a nonparty, former city

10 employee.

11 There were two things in the Dallas

12 Morning News case. They argued that, since the City of

13 El Paso did not send to the Attorney General for review

14 materials that it couldn't get from its public officials

15 on their private devices, that they waived any exception

16 under the Act. The court disposes of that and says, the

17 city doesn't claim an exception. It argues that

18 personal e-mails accounts are not public information

19 under the Act. And the court agrees with that. And it

20 concludes that a governmental body does not include May

21 or Miller.

22 THE COURT: Okay. So where are you

23 reading?

24 MR. DENTON: I believe that's still on

25 page 4, Judge.


42

1 THE COURT: Oh, okay.

2 MR. DENTON: It's right before the City's

3 summary judgment motion.

4 THE COURT: What does the paragraph begin

5 with?

6 MR. DENTON: I'm sorry, I had miscited.

7 It's on page 6.

8 THE COURT: Okay.

9 MR. DENTON: And I want to make sure the

10 Court has the same. I have the Westlaw copy. I want to

11 make sure it's the same as the one I handed you, Your

12 Honor. It's on page 7, right at the bottom there.

13 THE COURT: Okay.

14 MR. DENTON: "A governmental body does not

15 include Mayor Miller" -- who was still the mayor -- "or

16 city employees. Personal e-mail accounts are not public

17 information. It goes beyond the expressed language of

18 the statute requiring request for the Attorney General's

19 decision. And it says, accordingly, the News had the

20 burden to show the city had refused to produce existing

21 e-mails, collected, assembled, or maintained in

22 connection with the transaction of official city

23 business, which e-mails are owned by the city, or which

24 it has a duty to produce or right of access."

25 THE COURT: I am trying to find where you


43

1 are reading.

2 MR. DENTON: Okay. That's right before

3 the City's --

4 THE COURT: Do you have a headnote? Can

5 you cite the Court with a headnote?

6 MR. DENTON: It's right before where it

7 says, the City's summary judgment motion.

8 THE COURT: Okay. Right before. Okay.

9 I've got it.

10 MR. DENTON: So if I may, now, I had not

11 really addressed the motion to quash question because we

12 believe that under --

13 THE COURT: Okay. Hold on. We are not

14 there yet.

15 MR. DENTON: All right. So, to recap, the

16 City believes there is no jurisdiction over people that

17 are not City employees that don't have access that is

18 equal to the City of El Paso's access, because that's

19 who I represent, and that's the party to this case, and

20 that's the scope of the limited waiver under the TPIA.

21 Secondarily, the City doesn't have -- the

22 issue that was before this Court as is the case for

23 controversy, is the Attorney General's determination

24 that is the scope of our duty.

25 We don't think that discovery is


44

1 appropriate, necessary, or indicated. And I am not

2 arguing now that the Court couldn't order that as a part

3 of making an ultimate determination on the plea to the

4 jurisdiction.

5 But I am telling the Court that if the

6 Court wants to take this case under advisement until we

7 satisfy them that we've given them all the attachments

8 that are within the scope of the Attorney General's

9 determination, that's fine with us. We are not trying

10 to hide the ball. We are trying to hand them the ball.

11 And I don't want to have a silly

12 controversy over whether or not we have handed them the

13 ball or not because that's what we decided to do. What

14 Joyce Wilson's affidavit says that she did, and she

15 believes that she did it, and if somehow there is

16 inadvertence that it didn't happen, we are prepared to

17 fix it. That doesn't take depositions.

18 THE COURT: I started reading the case

19 that you gave me, and it seems to say, okay, there is

20 not evidence to show what is, in fact, accessible to the

21 City as it relates to personal e-mail accounts, because,

22 in this case, it said we cannot grant summary judgment

23 because the evidence is conflicting.

24 You know, even the evidence provided by

25 the City showed that they did have access to -- because


45

1 they produced some personal e-mails between the mayor

2 and the City Manager or whoever, some other city

3 employee.

4 MR. DENTON: As had we --

5 THE COURT: Hold on. So clearly, they had

6 access to them. So you cannot -- you know, it's a right

7 to access.

8 So, you know, we have these discovery

9 disputes all the time. Well, Judge, it's the docket.

10 Yeah, you have a right to access that information. It

11 doesn't mean you have it. It means you have a right to

12 get it.

13 And so that's what the case is saying

14 here. That's why the summary judgment was -- it was

15 just -- it had -- you know, again, it says, because a

16 fact issue exists, the trial judge did not err in

17 granting summary judgment. So it went to the whole

18 analysis of the right to access.

19 Anyways, Mr. Aleshire, anything to add on

20 this point?

21 MR. ALESHIRE: And the Dallas Morning News

22 case, what it points out is, it was an issue brought up

23 on summary judgment when the issue was whether there was

24 sufficient summary judgment evidence to do it.

25 What was missing from that case, what was


46

1 not pled and was not argued is the role of the local

2 Government Records Act. There was no argument presented

3 to the Court in that case as we have in this case, that

4 you must look to whether or not it's a public record if

5 the City doesn't -- for records the City doesn't

6 actually have in its hands. Because if it's a local

7 government record, they do own it, they have right of

8 access to it, and it is within the scope of the Public

9 Information Act. And we are entitled to a writ of

10 mandamus.

11 One of the things that Mr. Denton has done

12 this morning is to argue to the Court that the

13 information that is at issue as to whether or not they

14 turned it over was the information they chose to

15 withhold when they asked for an Attorney General

16 opinion. And they want to limit the Court's attention

17 to just that set of information.

18 What they have left out is that the City

19 had withheld information within the scope of

20 Ms. Allala's open records request and didn't ask for an

21 Attorney General's opinion on it.

22 We believe that that's our contention.

23 That's why we filed a lawsuit, not just over what they

24 withheld from the A.G, but we broadly pled, under

25 552.321, that we wanted a writ of mandamus for them to


47

1 turn over all the information we asked for. Not all the

2 information they withheld from the City. And so we

3 don't believe that they have turned that over.

4 And while it is absolutely true that if we

5 submitted a request for a fire run in San Antonio for

6 records about a fire run in San Antonio, we don't invoke

7 any right of discovery just filing an open records

8 request.

9 But if the City either doesn't turn over

10 the records, we have a reasonable belief they didn't, we

11 can file suit under 552.321 and have the same discovery

12 rights any litigant would have.

13 Now, the last thing about the former

14 officials, I had cited in our response to the motion to

15 quash the portions of the Local Government Code that

16 define who a "custodian" is of the local government

17 records.

18 The "local government records" definition

19 is very broad. It says, anything, basically, any kind

20 of record, that is created or received by the City

21 official or employee in the transaction of official

22 business. It is a very broad thing.

23 And then it defines "custodians" to be

24 each of those council representatives was a custodian of

25 the records in their office. The City Manager is the


48

1 custodian of the records in their office.

2 They have legal obligations under the

3 Local Government Records Act to turn those over to the

4 City. And if that doesn't work, then we are denied our

5 rights under Public Information Act.

6 So that's how -- if somebody is in office,

7 creates local government records, takes them with them

8 when they leave, despite the specific responsibility

9 under the Code as the custodian of those records to turn

10 them over to their successor in office, then -- if

11 that's going to be the way the Public Information Act is

12 written, that you can't touch them, you can't even ask

13 them questions about what they've got. We've got the

14 Public Information Act that says anybody who wants to

15 could just go offline, keep it offline, never even be

16 questioned about what records they actually have. They

17 are official government records.

18 MR. DENTON: I would be remised, Judge, in

19 not making it clear to the Court that we think Mr.

20 Aleshire's argument, under the Records Retention Act,

21 has nothing to do with this case.

22 Nothing in that statute gives any right of

23 private or similar enforcement. Nothing in that statute

24 is any waiver of sovereign immunity of any state

25 government, any agency, any local government.


49

1 He is attempting to import into a totally

2 different comprehensive local government management

3 responsibility that has no waiver of sovereign immunity,

4 the right to go in there through the back door of the

5 TPIA and enforce all of those standards for records

6 retention and records management.

7 There is no cause of action for that. And

8 I want the Court to understand that we think that that

9 does not create jurisdiction at all.

10 THE COURT: All right. For our purposes

11 here, what I would like to do is, let me just go ahead

12 and rule on what I am going to do with the plea to the

13 jurisdiction.

14 First of all, I'll grant -- I'll sustain

15 the objection to that portion of the affidavit of Joyce

16 Wilson and that it's conclusory.

17 The Court finds that it is conclusory.

18 And that is the last sentence on paragraph 1, 2, 3, 4.

19 It says, the City of El Paso has conducted a diligent

20 search for information but does not have any additional

21 responsive documents which have not been published or

22 disclosed without stating the basis, the factual basis

23 for that statement.

24 The Court is going to not rule on the plea

25 to the jurisdiction. I am not going to grant it or deny


50

1 it. I'm holding the ruling on the plea to the

2 jurisdiction to allow some limited discovery, and then

3 provide, perhaps, proposed discovery presentation of the

4 jurisdictional issue.

5 So let's -- so then, now let's go to the

6 motion to quash.

7 MR. DENTON: If I may?

8 THE COURT: And is that in here as well,

9 Counsel?

10 MR. DENTON: It is in my notebook, and I'm

11 assuming it's in his notebook.

12 MR. ALESHIRE: It is.

13 THE COURT: Okay.

14 MR. DENTON: And I will be very brief

15 about this, Judge.

16 THE COURT: Counsel, let's just take a

17 two-minute break, five-minute break, and then we'll come

18 back.

19 (Break taken.)

20 THE COURT: All right. You may be seated,

21 Counsel.

22 All right. Let's go right to the motion

23 to quash. Have you been able to reach any type of

24 agreement on this?

25 MR. DENTON: Counsel has agreed that we


51

1 can postpone depositions in this case to the extent that

2 the Court chooses to permit them under the December

3 timeframe. And we would appreciate the professional

4 courtesy. And I am sure co-counsel especially

5 appreciates the courtesy.

6 I will make my comments brief on the

7 motion to quash that's before the Court. In the context

8 of the Court's intention at this point, we would

9 initially request that the Court limit discovery to

10 Joyce Wilson.

11 If the Court is going to allow discovery

12 to proceed as to other City officials, then we will

13 certainly comply with that request.

14 We would strongly urge the Court not to

15 permit discovery and to quash the discovery at least for

16 the time being, if not permanently, against individuals

17 that are no longer public officials of the City of El

18 Paso that we don't represent as their counsel, because

19 we think that they have legitimate privacy interest as

20 well as interest under the Texas Public Information Act.

21 To the extent that the Court refuses that

22 request, the quash of the depositions of nonofficials or

23 nonemployees, we would ask the Court, as a condition of

24 that deposition, to limit any production of documents

25 pursuant to subpoena from their private devices, that


52

1 they had not otherwise voluntarily produced or don't, at

2 this point, voluntarily produced, to be produced solely

3 in-camera's for the Court's jurisdiction of any privacy

4 interest that they may have.

5 If somebody is writing their grandmother

6 or their daughter away in college, you know, about what

7 happened at the City of El Paso on the ballpark issue, I

8 don't think that's a public e-mail under the TPIA. But

9 those witnesses should have the ability to have you rule

10 on that question instead of just opening the door and

11 letting Mr. Aleshire ask about and compel the production

12 of everything from their personal computer.

13 THE COURT: That relates to the ballpark.

14 And you're saying, if it was just an e-mail to grandma

15 saying, the issue, the election, or the issue was

16 resolved this way?

17 MR. DENTON: Yes, ma'am.

18 THE COURT: That you would say that that's

19 still private?

20 MR. DENTON: But in any event, my primary

21 objective there, the people that are City employees or

22 officials will be attended on behalf of their

23 depositions by counsel provided by the City.

24 Those other individuals are no longer City

25 employees. And since these proceedings are to take


53

1 their depositions as witnesses, we would request that

2 the Court consider that.

3 Mr. Allala's request. Although I don't

4 want to misrepresent this, these are things that he is

5 asking for by way of example. And he does not put them

6 in his motion as a proposed limit on what the deposition

7 should cover.

8 But I think that the Court should limit

9 the depositions to the proper scope that the

10 jurisdictional issue is raised. What steps Joyce Wilson

11 took to preserve to lead -- to preserve and disclose the

12 requested information, and what became of any materials

13 that have not been produced?

14 And we think that should be the scope as

15 to all of them. My concern, of course, is that under

16 the current rules, we have a keep-your-mouth-shut

17 deposition system, not like in the old days when I grew

18 up. So that he asked the question. Unless it's

19 privileged, I can't object.

20 So we don't want a fishing expedition or a

21 philosophical discussion or debate or a bunch of

22 interrogation that's for, you know, future communication

23 to the press about what people's, you know, public

24 service is, or whether or not they should be subject to

25 public scorn for choices or decisions that they have


54

1 made, because that's not what this is about. It should

2 be limited to the legitimate issues that the Court needs

3 evidence on.

4 THE COURT: Okay.

5 MR. ALESHIRE: Your Honor, if I could

6 direct your attention to our response to their first

7 amended motion to quash.

8 I want to first clear up what the subpoena

9 asked for.

10 THE COURT: Go ahead.

11 MR. ALESHIRE: Exhibit I-15 is a copy of

12 the subpoena. We are asking them to sit for an oral

13 deposition. And I will say to this Court that the scope

14 of that deposition, if it needs to be included in the

15 order, I will do so. But I will represent right here to

16 this Court that my -- that I will limit the questions in

17 the deposition to discovery and what records they

18 created or received, and where those records are,

19 whether they have been turned over.

20 But as far as the duces tecum, as they

21 used to call it, if you look at Exhibit 15, I-15, you

22 will see what it asks -- what we asked them to produce.

23 We are not asking them to produce their

24 e-mails accounts. We are asking them to go through and

25 select, just like you might do in any discovery, go


55

1 through your records and bring us these.

2 And what this number 1 is and goes on to

3 number 2 on the second page is, word-for-word, what we

4 asked for in the open records request.

5 That is repeating the open records request

6 as a duces tecum, and just asking, if they still have

7 those records, we are asking them to bring them to the

8 deposition. We are not going beyond that.

9 THE COURT: But, Counsel, but I'm

10 noticing it's very broad. It's not limited to the

11 business in the City of El Paso and limited to a certain

12 area of business. I am looking at I-15.

13 MR. ALESHIRE: There were two requests.

14 The first request was for all communication on any

15 matter of public business of the City of El Paso that

16 occurred between the Council members themselves and/or

17 the City Manager. That was the first request.

18 The second request concerned the ballpark

19 and any communication they've had with them. And we

20 would ask for all e-mails between the City Council

21 members from January 1st, 2012. Without regard to a

22 subject matter, our request was, if you've talked to

23 each other about City business by e-mail since

24 January 1st up to September 5th, or actually

25 October 5th, 2012, we would like to have those e-mails.


56

1 They have produced a bunch of them,

2 thousands of them. There was a lot of discussion going

3 on outside the City's computer system on their personal

4 e-mail accounts, but they withheld some.

5 And so that's what the first point is,

6 that we are only asking for what was within the scope of

7 the original open records request. And it was limited

8 to correspondence regarding any matter of public

9 business of the City of El Paso.

10 THE COURT: And I just -- I guess my whole

11 point about my comment was, it says, public business.

12 And I realize that that would -- you know, I'm just

13 saying it's about a certain matter. I say, why don't we

14 limit it to a certain matter.

15 MR. ALESHIRE: No. The lawsuit is about

16 that as well -- the lawsuit is about the request. And

17 the request was for all the e-mails between the Council

18 members and/or the City Manager, just that group, about

19 any topic of that City business. That was the first

20 request. That's what this lawsuit is about.

21 THE COURT: And then the second one was

22 about that. Okay.

23 MR. ALESHIRE: That's right.

24 THE COURT: Okay. I understood it to be

25 only about the ballpark.


57

1 MR. ALESHIRE: No, Your Honor. We have

2 repeated here -- and I have a copy of the requests

3 themselves. It says 1 and 2. On the other notebook

4 that I gave you, it's the actual request so you can see

5 we have done it.

6 Okay. Now, Representative Niland,

7 N-I-L-A-N-D, and the City Manager, Ms. Wilson, are

8 current city officials.

9 We had issued just a regular notice of

10 deposition with the request for production to them. But

11 just for belts and suspenders, we then turned around and

12 issued a notice and then subsequently a subpoena to them

13 to appear for the deposition.

14 Former Representative Byrd submitted an

15 unsworn statement that she had some additional records

16 she was turning over this last week or so. And she

17 turned some additional records over.

18 But she and representative -- former

19 Representative Ortega, I would question them as

20 witnesses.

21 Whether the City represents them or not, I

22 can tell you from experience, Your Honor, sometimes,

23 especially in a deposition setting, the government

24 lawyers were still representing former officials as it

25 concerns the business they had when they were in office,


58

1 which is exactly what this is.

2 I want to make clear that Representative

3 Byrd and Representative Ortega were in office and are

4 part of the scope of the open records request that we

5 made. They produced -- they created and received

6 records at that time.

7 THE COURT: In other words, they were in

8 office in January of 2012 to October 5th, 2012?

9 MR. ALESHIRE: Yes, Your Honor.

10 And those, Representative Byrd and

11 Representative Ortega, were two of the biggest

12 proponents of the stadium and very much involved in the

13 proposal to get that done.

14 So they are being questioned like you

15 would -- if you step back from this, they are witnesses.

16 They may have records that would be relevant to why

17 local government records were created or what records

18 existed at some point. They can even testify that they

19 turned all the records over.

20 So we think it's -- we think we should be

21 allowed -- they are relevant witnesses because they

22 created or received records within the scope of those

23 open records requests. They have turned some -- all

24 except for Mr. Ortega -- turned some records over. And

25 we want to see if there is anything else out there.


59

1 Your Honor, if we get to the conclusion

2 that after we conduct our discovery and are satisfied

3 that, in fact, they have turned everything over that is

4 available under the Public Information Act, we will

5 nonsuit.

6 THE COURT: All right. Counselor, any

7 brief response?

8 MR. DENTON: I don't think anything

9 further, Judge.

10 Just to clarify what I am asking the Court

11 to do for the no longer City officials is merely to give

12 them the prerogative to assert a privacy interest as to

13 what materials that they would produce in-camera so that

14 the Court can decide on it. That may not even be

15 necessary.

16 But because this is their private devices,

17 Counsel is exactly right. If we were taking depositions

18 about stuff that's on the City computer, we wouldn't

19 have a problem, and we would attend on their behalf.

20 But they may have privacy interest about their own

21 materials that they want to assert.

22 And I am merely asking, even though they

23 are not my clients, for the Court to accommodate that,

24 because all the Court would have to do is then decide

25 whether they were right or wrong and those materials


60

1 were public or not.

2 THE COURT: Okay.

3 MR. ALESHIRE: Your Honor, we can agree to

4 that. If we are in a deposition and they assert --

5 yeah, I've got some records, but I don't want to turn

6 them over, I've got a privacy interest, I will ask the

7 court reporter to certify the question, and we will

8 reserve that for later, and we can come back and see

9 whether not that should be --

10 THE COURT: Then there is agreement,

11 depending on what that was.

12 MR. DENTON: That's what I was asking for.

13 We still assert that they are beyond the Court's

14 jurisdiction to read, but we will do whatever the Court

15 tells us to do.

16 MR. ALESHIRE: And we've issued them

17 subpoenaes, with notice of subpoenaes. We will serve

18 them with the actual subpoena.

19 THE COURT: Okay. So I think Counsel has

20 stated on the record the limited scope of the

21 examination, has also agreed that the nonformer

22 employees can assert a privacy issue, and that that

23 issue will be certified, and the Court will then make a

24 determination whether some of those documents that

25 are -- that they are withholding are, in fact, private


61

1 or not.

2 MR. DENTON: That's correct. Those are

3 accommodated in my request.

4 THE COURT: Okay. Other than, I think,

5 limiting it to Joyce Wilson, I think the Court is going

6 to allow the depositions to go forward on current

7 nonemployees -- of the limited -- but limited to the

8 scope as set out in the subpoena duces tecum, the

9 subpoena related to that time frame when they were

10 employees, the time related to e-mails -- I mean, the

11 scope related to e-mails that are, in fact, conducting

12 official business even in their personal accounts.

13 But if they assert a privacy privilege,

14 then that will be raised at the time of the deposition.

15 MR. ALESHIRE: Regarding the recordkeeping

16 issue, Your Honor -- and I didn't have a chance to ask

17 this -- we should probably have -- in the recorded -- in

18 the record the exhibits, their exhibit with their plea

19 to the jurisdiction of Ms. Wilson's affidavit, and our

20 exhibits attached to our response.

21 THE COURT: Do you want to go ahead and --

22 MR. ALESHIRE: And I would -- I would --

23 with no objection?

24 MR. DENTON: They are attached to

25 documents that the Court takes judicial notice of. They


62

1 are in the record.

2 MR. ALESHIRE: Just as long as they are

3 accepted as the evidence as the affidavits.

4 THE COURT: All right. The Court will

5 take judicial notice of the Court's file, including the

6 affidavit of Ms. Wilson and then the other exhibits that

7 were submitted by the Intervenor, including the -- I

8 think Exhibit -- Intervenor's 6.

9 MR. ALESHIRE: It is actually, it's 1

10 through 17 that is attached.

11 THE COURT: Okay. 1 through 17.

12 Anything else?

13 MR. DENTON: Nothing further, Judge.

14 THE COURT: All right. Then you are

15 excused.

16 MR. DENTON: And Mr. Aleshire will prepare

17 an order and present it?

18 MR. ALESHIRE: If it's not more

19 complicated than that. But if we need to put something

20 else in, we will work on that.

21 And with the stipulation I made on the

22 record.

23 THE COURT: I since I -- you know, I made,

24 on the record, that I was neither denying or granting

25 the plea to the jurisdiction.


63

1 MR. DENTON: Yes. I understand that part.

2 MR. ALESHIRE: But we would need --

3 THE COURT: Do you want a motion to quash?

4 MR. DENTON: May I --

5 THE COURT: It's just a denial.

6 MR. DENTON: Okay. May I see the order?

7 THE COURT: It's just a denial.

8 MR. DENTON: I would merely propose that

9 the Court modify that to say, denies the motion except

10 to the extent of the limitations granted on the record,

11 or something like that and sign it. That's fine.

12 THE COURT: Okay.

13 MR. DENTON: Because I am perfectly

14 comfortable with what the record reflects are our

15 responsibilities as officers of the Court, Judge.

16 MR. ALESHIRE: And we will work on a

17 reasonable date and time in December.

18 MS. FUCHS: Thank you.

19 THE COURT: Okay. So basically what I did

20 was -- I'm adding, "Denies the motion except to the

21 extent that the parties agreed to limitations," because

22 there was some agreements, and those ordered by the

23 Court and read into the record.

24 MR. DENTON: Thank you, Your Honor.

25 THE COURT: All right. So let me give you


64

1 this. September 30th, all day. Can you believe October

2 1 is manana?

3 Here is the order and here is your stuff.

4 MR. TSCHIRHART: For clarification

5 purposes, we have agreed not to do depositions later

6 this week.

7 MR. ALESHIRE: That's correct.

8 THE COURT: Yes.

9 MR. DENTON: I thank the Court for its

10 patience and consideration.

11 THE COURT: Sure, Counsel.

12 (End of Proceedings.)

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65

1 STATE OF TEXAS

2 COUNTY OF TRAVIS

3 I, Dora M. Canizales, Official Court Reporter in and

4 for the 419th District Court of Travis, State of Texas,

5 do hereby certify that the above and foregoing contains

6 a true and correct transcription of all portions of

7 evidence and other proceedings requested in writing by

8 counsel for the parties to be included in this volume of

9 the Reporter's Record in the above-styled and numbered

10 cause, all of which occurred in open court or in

11 chambers and were reported by me.

12 I further certify that this Reporter's Record of the

13 proceedings truly and correctly reflects the exhibits,

14 if any, offered by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $ and

17 was paid/will be paid by .

18 WITNESS MY HAND on this the 4th day of October,

19 2013.

20 /S/Dora M. Canizales Dora M. Canizales, CSR #5360

21 Official Court Reporter 419th District Court

22 Travis County, Texas 1000 Guadalupe St., Room 325

23 Austin, Texas 77002 Telephone: 512-854-9329

24 Expiration: 12/31/2013

25

Documents

Sep 30 2013-0859 AM City of El Paso vs Greg Abbott - TRANSCRIPT