ACCEPTED 03-14-00314-CV 3617224 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/30/2014 2:15:31 PM JEFFREY D. KYLE CLERK CAUSE NUMBER 03-14-00314-CV ----------------------------------------------------------------------------------------------- IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS ---------------------------------------------------------------------------------------------- 12/30/2014 2:15:31 PM JEFFREY D. KYLE Clerk RANDY TRAVIS, APPELLANT V. TEXAS DEPARTMENT OF PUBLIC SAFETY AND TEXAS ATTORNEY GENERAL, APPELLEES
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ON APPEAL FROM THE 353rd DISTRICT COURT OF TRAVIS COUNTY, TEXAS TRIAL COURT CASE NUMBER: D-1-GN-13-001617 The Honorable Judge Stephen Yelenovsky, Presiding -------------------------------------------------------------------------------------------
REPLY BRIEF OF APPELLANT RANDY TRAVIS ------------------------------------------------------------------------------------------------------------------
ORAL ARGUMENT REQUESTED
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Martin J. Cirkiel, Esq. State Bar No. 00783829 Cirkiel & Associates, P.C. 1901 E. Palm Valley Blvd. Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile] marty@cirkielaw.com [Email] Mr. John Nix, Esq. State Bar No. 24025564 Nix, Hoover & Kreck 514 North Elm Sherman, Texas 75090 (903) 868-2600 [Telephone] (903) 868-2330 [Facsimile] jhnixlaw@yahoo.com [Email]
Mr. John Friedman, Esq. State Bar No. 07469300 Friedman & Feiger, LLP 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 (972) 788-1400 [Telephone] (972) 788-2667 [Facsimile] lfriedman@fflawoffice.com [Email]
ATTORNEYS FOR APPELLANT TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
I. REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. GENERAL MATTERS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. REPLY TO OBJECTIONS ON STATEMENT OF FACTS . . . . . . . . . . . . 2
C. THE DASHCAM INFORMATION IS CONFIDENTIAL . . . . . . . . . . . . . . 4
D. THE INFORMATION SHOULD NOT BE RELEASED DUE TO TRAVIS’ CURRENT INCAPACITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. CERTIFICATE OF SERVICE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IV. APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Appellant’s Rely Brief iii TABLE OF AUTHORITIES
Supreme Court Cases
Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Cases
Bing Shun Li v. Holder, 400 Fed. App’x 854-857-858 (5th Cir. 2010) . . . . . . . . . . 2
State Cases
Lyons v. Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. – El Paso, 1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985).. 3
State Statutes
Texas Health & Safety Code §571.015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Appellant’s Rely Brief iv I. REPLY
A. GENERAL MATTERS
1. As a matter of course, Randy Travis substantially relies upon his Brief Of
Appellant (hereinafter referred to and cited as “Applnt.”) except where more
specifically addressed herein. In addition, and as a threshold consideration, he
reiterates and underscores his contention that the District Court erred by failing
to consider that the release of audio-visual material should be afforded a
different standard of review than print material (Applnt. At p. 15, ¶37-39,
citing Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) [release of video has
greater capacity for evil]).
2. Travis also reiterates and underscores his contention, that if written medical
information is generally confidential as a matter of law, then so should be any
audio or visual depiction of those otherwise confidential medical conditions
(Applnt. At p. 21, ¶53-54). If not, and for example, then while a person’s
mental health records may remain confidential, (see, Texas Health & Safety
Code §571.015), under the Attorney General’s argument, the video camera
depiction of them being picked up off the streets of Austin by the police and
then brought to the State Hospital, would be of a public interest. Surely, such
a result cannot be correct.
Appellant’s Rely Brief 1 B. REPLY TO OBJECTIONS ON STATEMENT OF FACTS
3. In their Brief Of Appellee (hereinafter referred to and cited as “Applee.”), the
Texas Attorney General first attacks portions of Travis’ Statement of Facts,
Applee. at p. 2-3. The initial concern is that certain personal information
about Travis, both as a historical nature and subsequent to the incident in
question is immaterial, is based upon unreliable citation, is based upon self-
serving opinion and that Travis’ current mental and medical condition is
“irrelevant.”
4. It is important to note that the incident in question occurred on August 7, 2012
(Applnt. at p. 4, ¶9). Just about a year later on July 15, 2013 Travis suffered
a stroke, had brain surgery, and is now unable to speak and is borderline
mentally incapacitated (Applnt. at p. 7-8, ¶17-18). This particular piece of
information, which has easily been procured from public sources of
information like Wikipedia, is not only reliable and uncontroverted. In fact, the
information about his current incapacity was likewise found on the TMZ
website. This writer must comment on the irony of Appellee’s position, that
TMZ is a credible enough entity to seek public information but not publish it.
5. In any case, the Appellee relies upon Bing Shun Li v. Holder, 400 Fed. App’x
854-857-858 (5th Cir. 2010) and other similar cases, for the proposition that
Appellant’s Rely Brief 2 reliance upon Wikipedia or other internet sources of information is
“unreliable.” First, reliance upon this case and others cited by Appellee is
misplaced, as the internet material cited therein was used for legal citation
purposes. It is not cited for legal conclusion or reliance by Travis.
6. Moreover, this case does not say what Appellee states, rather it merely
implores to be cautionary and not to place any “improper reliance” upon such
sources. Travis fails to see how reliance on his current medical and mental
state, which is well-known now, is somehow “improper.”
7. Further, Travis’ current medical and mental condition is integral to his
argument that certain audio-visual information in the record, even if arguably
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ACCEPTED 03-14-00314-CV 3617224 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/30/2014 2:15:31 PM JEFFREY D. KYLE CLERK CAUSE NUMBER 03-14-00314-CV ----------------------------------------------------------------------------------------------- IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS THIRD DISTRICT OF TEXAS AUSTIN, TEXAS ---------------------------------------------------------------------------------------------- 12/30/2014 2:15:31 PM JEFFREY D. KYLE Clerk RANDY TRAVIS, APPELLANT V. TEXAS DEPARTMENT OF PUBLIC SAFETY AND TEXAS ATTORNEY GENERAL, APPELLEES
-------------------------------------------------------------------------------------------
ON APPEAL FROM THE 353rd DISTRICT COURT OF TRAVIS COUNTY, TEXAS TRIAL COURT CASE NUMBER: D-1-GN-13-001617 The Honorable Judge Stephen Yelenovsky, Presiding -------------------------------------------------------------------------------------------
REPLY BRIEF OF APPELLANT RANDY TRAVIS ------------------------------------------------------------------------------------------------------------------
ORAL ARGUMENT REQUESTED
------------------------------------------------------------------------------------------------------------------
Martin J. Cirkiel, Esq. State Bar No. 00783829 Cirkiel & Associates, P.C. 1901 E. Palm Valley Blvd. Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile] marty@cirkielaw.com [Email] Mr. John Nix, Esq. State Bar No. 24025564 Nix, Hoover & Kreck 514 North Elm Sherman, Texas 75090 (903) 868-2600 [Telephone] (903) 868-2330 [Facsimile] jhnixlaw@yahoo.com [Email]
Mr. John Friedman, Esq. State Bar No. 07469300 Friedman & Feiger, LLP 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 (972) 788-1400 [Telephone] (972) 788-2667 [Facsimile] lfriedman@fflawoffice.com [Email]
ATTORNEYS FOR APPELLANT TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
I. REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. GENERAL MATTERS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. REPLY TO OBJECTIONS ON STATEMENT OF FACTS . . . . . . . . . . . . 2
C. THE DASHCAM INFORMATION IS CONFIDENTIAL . . . . . . . . . . . . . . 4
D. THE INFORMATION SHOULD NOT BE RELEASED DUE TO TRAVIS’ CURRENT INCAPACITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. CERTIFICATE OF SERVICE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IV. APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Appellant’s Rely Brief iii TABLE OF AUTHORITIES
Supreme Court Cases
Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Cases
Bing Shun Li v. Holder, 400 Fed. App’x 854-857-858 (5th Cir. 2010) . . . . . . . . . . 2
State Cases
Lyons v. Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. – El Paso, 1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985).. 3
State Statutes
Texas Health & Safety Code §571.015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Appellant’s Rely Brief iv I. REPLY
A. GENERAL MATTERS
1. As a matter of course, Randy Travis substantially relies upon his Brief Of
Appellant (hereinafter referred to and cited as “Applnt.”) except where more
specifically addressed herein. In addition, and as a threshold consideration, he
reiterates and underscores his contention that the District Court erred by failing
to consider that the release of audio-visual material should be afforded a
different standard of review than print material (Applnt. At p. 15, ¶37-39,
citing Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) [release of video has
greater capacity for evil]).
2. Travis also reiterates and underscores his contention, that if written medical
information is generally confidential as a matter of law, then so should be any
audio or visual depiction of those otherwise confidential medical conditions
(Applnt. At p. 21, ¶53-54). If not, and for example, then while a person’s
mental health records may remain confidential, (see, Texas Health & Safety
Code §571.015), under the Attorney General’s argument, the video camera
depiction of them being picked up off the streets of Austin by the police and
then brought to the State Hospital, would be of a public interest. Surely, such
a result cannot be correct.
Appellant’s Rely Brief 1 B. REPLY TO OBJECTIONS ON STATEMENT OF FACTS
3. In their Brief Of Appellee (hereinafter referred to and cited as “Applee.”), the
Texas Attorney General first attacks portions of Travis’ Statement of Facts,
Applee. at p. 2-3. The initial concern is that certain personal information
about Travis, both as a historical nature and subsequent to the incident in
question is immaterial, is based upon unreliable citation, is based upon self-
serving opinion and that Travis’ current mental and medical condition is
“irrelevant.”
4. It is important to note that the incident in question occurred on August 7, 2012
(Applnt. at p. 4, ¶9). Just about a year later on July 15, 2013 Travis suffered
a stroke, had brain surgery, and is now unable to speak and is borderline
mentally incapacitated (Applnt. at p. 7-8, ¶17-18). This particular piece of
information, which has easily been procured from public sources of
information like Wikipedia, is not only reliable and uncontroverted. In fact, the
information about his current incapacity was likewise found on the TMZ
website. This writer must comment on the irony of Appellee’s position, that
TMZ is a credible enough entity to seek public information but not publish it.
5. In any case, the Appellee relies upon Bing Shun Li v. Holder, 400 Fed. App’x
854-857-858 (5th Cir. 2010) and other similar cases, for the proposition that
Appellant’s Rely Brief 2 reliance upon Wikipedia or other internet sources of information is
“unreliable.” First, reliance upon this case and others cited by Appellee is
misplaced, as the internet material cited therein was used for legal citation
purposes. It is not cited for legal conclusion or reliance by Travis.
6. Moreover, this case does not say what Appellee states, rather it merely
implores to be cautionary and not to place any “improper reliance” upon such
sources. Travis fails to see how reliance on his current medical and mental
state, which is well-known now, is somehow “improper.”
7. Further, Travis’ current medical and mental condition is integral to his
argument that certain audio-visual information in the record, even if arguably
public at one point in time, lost that character with his changing medical
condition. It’s inclusion may be disagreeable to the State, but it is not
improper or irrelevant, as they suggest.
8. On a related note, the Appellee also argues that certain portions of Travis’
factual resume is based upon “opinion” (Applee. at p. 3, fn. 4) or “hearsay
(Applee. at p. 3, fn. 5).” Travis believes that what the Appellee characterizes
as “opinion” or even “hearsay”, he characterizes as an inference that must be
afforded to him at this stage of the litigation, Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985), especially since it is
Appellant’s Rely Brief 3 based upon their own evidence. See also Tex. R. Civ. P. 193.7; Lyons v.
Lindsey Morden Claims Mgmt. 985 S.W.2d 86, 92 (Tex. App. – El Paso, 1998,
no pet.)[Plaintiff may rely upon other party’s pleadings as “judicial
admissions”]. As such, Appellees argument that certain portions of his factual
resume be stricken, should be denied.
C. THE AUDIO-VISUAL DASHCAM INFORMATION IS CONFIDENTIAL
9. In his Brief, (Applnt. at p. 9, ¶20; p. 16, ¶16-17) Travis noted that the State of
Texas has already deemed the information in question to contain “information
that was highly intimate with embarrassing facts.” In their response, the
Attorney General (Applee. at p. 21-22) now wants to qualify this statement, to
mean something other than it clearly says. They benefit from no such
inferences as does Travis. What the DA’s statement is “more properly
understood” to be, is not an issue; rather what the statement specifically said,
is the issue. Such an attempt by the State to re-characterize its own evidence
should likewise be rejected. As such, Travis’ argument based upon the theory
of Judicial Estoppel should continue to control on this point.
D. THE INFORMATION SHOULD NOT BE RELEASED DUE TO TRAVIS’ CURRENT INCAPACITY
10. Last, this writer feels compelled reiterate the rather common-sense argument
Appellant’s Rely Brief 4 that if Travis no longer has the medical or mental capacity or ability to speak
for himself, then any public right to know was extinguished upon such
incapacity (Applnt. at p. 22, ¶56). At the time he presented no case law in
support of such a proposition, which the Appellee duly noted. Nevertheless,
Travis now takes the opportunity to address his argument.
11. The underlying tug-of-war in this case, is the public’s right to know versus an
individual’s sense of privacy. If a Court would permit release of the current
audio-visual portions of the dashcam, then the current requestors and in fact,
all other media, would surely have numerous questions for Travis. But he has
no ability to defend himself or his actions or in any way discuss them, as he
cannot speak. In fact there is some question as to whether or not he has legal
capacity. Surely, the public’s right to know should end, when the individual,
like Randy Travis, may no longer even have the ability to know or remember
what happened that summer, let alone discuss it.
II. CONCLUSION AND PRAYER
12. WHEREFORE, PREMISES CONSIDERED, Appellant prays in the manner
and particulars noted above, that his Appeal be GRANTED, that the Final
Judgment be vacated, that he be declared a prevailing party, have his attorneys
fees paid by Appellee and for such other further relief as the Court may deem
Appellant’s Rely Brief 5 just and proper in law or in equity.
Respectfully submitted,
/s/ Martin J. Cirkiel
Martin J. Cirkiel, Esq. State Bar No. 00783829 Cirkiel & Associates, P.C. 1901 E. Palm Valley Blvd. Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile] marty@cirkielaw.com [Email]
Mr. John Nix, Esq. State Bar No. 24025564 Nix, Hoover & Kreck 514 North Elm Sherman, Texas 75090 (903) 868-2600 [Telephone] (903) 868-2330 [Facsimile] jhnixlaw@yahoo.com [Email]
Mr. John Friedman, Esq. State Bar No. 07469300 Friedman & Feiger, LLP 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 (972) 788-1400 [Telephone] (972) 788-2667 [Facsimile] lfriedman@fflawoffice.com [Email]
ATTORNEYS FOR APPELLANT
Appellant’s Rely Brief 6 III. CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 1,704 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer-generated document created in WordPerfect X7, using 14-point typeface for all text, except for footnotes which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
/s/ Martin J. Cirkiel Martin J. Cirkiel
Appellant’s Rely Brief 7 IV. CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing has been forwarded to the following parties on the 30th day of December, 2014 by Notice of Electronic Filing from the Clerk of the Court:
Mr. Matthew Entsminger, Asst. Attorney General State Bar No. 24059723 Open Records Litigation Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-4151 [Telephone] (512) 457-4686 [Facsimile] mathew.entsminer@texasattorneygeneral.com [Email] Electronically through the Electronic Filing Manager Attorney for Texas Attorney General
Ms. Kimberly L. Fuchs, Asst. Attorney General State Bar No. 24044140 Chief, Open Records Litigation Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 475-4195 [Telephone] (512) 320-0167 [Facsimile] kimberly.fuchs@texasattorneygeneral.com [Email] Electronically through the Electronic Filing Manager Attorney for Texas Department of Public Safety
Appellant’s Rely Brief 8 IV. APPENDIX
A. CD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Appellant’s Rely Brief 9