In re Jobe

42 S.W.3d 174, 2001 Tex. App. LEXIS 758, 2001 WL 99435
CourtCourt of Appeals of Texas
DecidedFebruary 2, 2001
DocketNo. 07-00-0507-CV
StatusPublished
Cited by12 cases

This text of 42 S.W.3d 174 (In re Jobe) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jobe, 42 S.W.3d 174, 2001 Tex. App. LEXIS 758, 2001 WL 99435 (Tex. Ct. App. 2001).

Opinion

BOYD, Chief Judge.

In this proceeding, relator Keith Jobe (Jobe) asks us to issue a writ of mandamus requiring the Honorable J. Blair Cherry, Jr., Judge of the 72nd District Court of Lubbock County, to vacate two orders he has issued. The effect of these orders was to compel the production of certain documents and information which, Jobe asserts, are statutorily made confidential and, therefore, are not discoverable. For reasons we later state, relator’s petition is conditionally granted.

The facts underlying this petition concern the actions of Jobe, a former Lubbock Police Officer. Barbara Kearse (Kearse), as next friend of Ray Kayla Fairly, filed the lawsuit underlying this proceeding. In her suit, Kearse alleged that Jobe, while acting as a security officer for Macherich Lubbock Limited Partnership d/b/a South Plains Mall Associates, Ltd., intentionally inflicted emotional distress upon Kearse’s daughter, Fairly.

Sometime during the summer of 1999, Lubbock Police Chief Ken Walker had occasion to investigate Jobe’s conduct. That investigation resulted in an “Order for Suspension Without Pay and Statement of Charges,” which was issued on May 16, 2000. Pursuant to city policy, the order was placed in Jobe’s civil service (a) file.1 In his 36 page order, Walker detailed the charges and the reasons why he found probable cause to support each charge. Ultimately, Jobe received a 16 day suspension and later resigned from the police department effective January 2, 2000.

During discovery in the underlying suit, Kearse subpoenaed Walker, Sergeant Robert Ferguson and Detective Leland Huf-stedler to appear for oral depositions and to produce documents which would include the investigative materials leading to the suspension order that had been placed in the (g) file. The City of Lubbock (the City) then sought a protective order from the trial court. In doing so, it pointed out that pursuant to city policy, only the suspension order was placed in Jobe’s (a) file, and all the remaining documents pertaining to Jobe’s investigation not placed in the (a) file remain in the (g) file and, by virtue of Texas Government Code section 143.089(g), they were privileged and confidential. After hearing the City’s application for protective order, the trial court granted the protective order as to any materials related to alleged misconduct by Jobe which did not result in disciplinary action, but required the City to produce “any letter, memorandum or document [in the (g) file] related to any misconduct of Defendant Keith Jobe if the letter, memorandum or document resulted in disciplinary action by the Lubbock Police Department.” The trial court later entered an order compelling the production of the documents upon which it had refused a protective order.

Initially, the City poses a question as to whether relator followed the proper procedure in attempting to obtain the materials. The City sought and obtained an attorney general’s opinion as to the confidentiality of the material remaining in the (g) file. In his opinion, the attorney general concluded that the material contained in the (g) file is privileged and must be withheld. In raising its question, the City, [177]*177citing Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex.App.—Austin 1992, no writ), and Felix v. Thaler, 923 S.W.2d 650 (Tex.App.—Houston [1st Dist.], no writ) argues that in view of the attorney general’s opinion, the proper procedure would have been for relator to seek mandamus directly against it, rather than obtaining the trial court order compelling production.

However, in Gilbreath, the court noted that once the attorney general has rendered an opinion in instances in which allegedly public information is sought, the material is privileged and that opinion is subject to judicial review. 842 S.W.2d at 411-12. While the procedure referred to in the opinion was the possibility of review by way of mandamus, the thrust of the court’s observation is that a decision to withhold is subject to judicial review. We see nothing in the opinion that would suggest the only acceptable method of judicial review would be by mandamus. The gist of the court’s opinion in Felix is that if a mandamus review of a refusal to furnish material is sought, it must meet the same standards as any other mandamus proceeding. Felix, 923 S.W.2d at 651-54. Thus, there is nothing in either opinion suggesting that a trial court could not, in its discovery process, and in pursuance of a duly issued subpoena, order the production of information or documents by an employee of the record holder. In that connection, the Rules of Civil Procedure specifically provide that a nonparty may be required to appear for deposition and also to produce documents or other materials. Tex.R.Civ.P. 205.3.

Therefore, we decline to hold that the only way the validity of the City’s position could be tested would be to bring a mandamus action directly against it. This is particularly true in this case where the City intervened in the trial court suit and invoked that court’s power to determine whether or not it was entitled to a protective order. By doing so, the City sought, and has obtained, a judicial review of its right to withhold the requested material. As a nonparty, it was entitled to seek appellate review of the trial court’s decision by this mandamus proceeding, which, of course, it has done.

Having held that the question of the propriety of the trial court’s order is properly before us, we must now decide if the court’s order requiring the production of the investigative materials generated by the Lubbock Police Department underlying the disciplinary action by it against Jobe, retained in the (g) file, was proper.

Mandamus is an extraordinary writ that should only be issued when the trial court clearly abused its discretion and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833 (Tex.1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. at 839. This standard, however, may have different applications in different circumstances. With respect to the resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court and may not disturb the trial court’s judgment unless that judgment is shown to be arbitrary and unreasonable. Id. at 839-40.

However, the review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. Id. at 840. A trial court has no “discretion” in determining what the law is or in applying established law to the facts before it. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal [178]*178by extraordinary writ. Id. Because our task in this case is to determine whether the trial court correctly interpreted Texas Government Code section 143.089, we treat the trial court’s decision with limited deference. See Oyster Creek Financial Corp. v. Richwood Investments II, Inc.,

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42 S.W.3d 174, 2001 Tex. App. LEXIS 758, 2001 WL 99435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jobe-texapp-2001.