Robert Brown, III v. the City of Austin

• Court: Court of Appeals of Texas
• Decided: August 31, 2022
• Docket: 03-21-00499-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00499-CV

Robert Brown, III, Appellant

v.

The City of Austin, Appellee

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-002934, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING

MEMORANDUM OPINION

Robert Brown III appeals the trial court’s judgment dismissing his suit against the

City of Austin. See Tex. Civ. Prac. & Rem. Code §§ 14.002–.003 (providing procedures for

dismissing certain claims brought by inmates). We affirm.

Brown initiated this suit with both a document titled, “Request Under the Freedom

Public Information Act Under the Gov[’]t Code [Sections] 552.021, 552.023 & 552.108,”

and an associated motion for in camera inspection of certain documents under Family Code

section 261.201, which provides for confidentiality of material relating to reports and

investigations of abuse or neglect of children and procedures for disclosing such material. He

seeks from the City certain police investigative reports and notes related to cases from 2003 and

2004. He has unsuccessfully sought the same or similar documents before. See, e.g., Brown v.

City of Austin, No. 03-19-00035-CV, 2019 WL 4068559, at *1–3 (Tex. App.—Austin Aug. 29,

2019, no pet.) (mem. op.). During a hearing before the trial court in this suit, Brown asserted that the documents are needed to overturn his convictions from many years ago for several counts of

indecency with a child. See generally Brown v. State, No. 03-06-00526-CR, 2007 WL 2214591

(Tex. App.—Austin Aug. 1, 2007, pet. ref’d) (mem. op., not designated for publication), habeas

corpus denied without written order, No. WR-71,460-02 (Tex. Crim. App. May 6, 2009), habeas

corpus dismissed without written order, No. WR-71,460-04 (Tex. Crim. App. Apr. 15, 2015).

We review a dismissal order under Civil Practice and Remedies Code

section 14.003 for an abuse of discretion. Brown, 2019 WL 4068559, at *1. A trial court abuses

its discretion only when its decision is made without reference to guiding rules and principles and

is arbitrary or unreasonable. See id. A district court may dismiss an inmate’s suit if the court finds

that it is frivolous. See Tex. Civ. Prac. & Rem. Code §§ 14.002, 14.003(a)(2). Brown does not

dispute that he is currently an inmate. But he does dispute that his suit is frivolous.

Because Brown is an inmate, the City was not required to accept or comply with

Brown’s request under the Public Information Act (PIA). See Tex. Gov’t Code § 552.028(a)(1);

Brown, 2019 WL 4068559, at *1; Reger v. Attorney Gen. of Tex., No. 03-17-00306-CV, 2017 WL

5559939, at *2 (Tex. App.—Austin Nov. 17, 2017, pet. denied) (mem. op.). There is thus no

arguable basis in law for Brown’s suit to compel compliance with his PIA request. See Tex. Civ.

Prac. & Rem. Code § 14.003(b)(3) (court may consider whether suit has no arguable basis in law

when deciding whether suit is frivolous); Brown, 2019 WL 4068559, at *1 (“[A] governmental

body’s compliance with an inmate’s PIA request is purely discretionary.”).

On appeal, Brown raises other arguments for why his request for the documents

and motion for in camera inspection are not frivolous. He argues that he has complied with Family

Code section 261.201, but as with his previous similar request for documents, he has not shown

that he made a request for documents from the Department of Family and Protective Services

2 (Department), see Tex. Fam. Code § 261.201(g), or that he is a “parent, managing conservator, or

other legal representative of [a] child” entitled to benefit from the statute, see id. § 261.201(k).

See Brown, 2019 WL 4068559, at *2–3.

Specifically under Section 261.201(b), even when a movant has met the statutory

requirements, a court still retains discretion about whether it will order disclosure of the subject

information. See S.C.S. v. Texas Dep’t of Fam. & Protective Servs., Nos. 02-09-00341-CV,

02-09-00343-CV, 2010 WL 2889664, at *2 (Tex. App.—Fort Worth July 22, 2010, no pet.) (mem.

op.). The trial court in its final judgment noted the statutory requirement that a movant under

Section 261.201(b) must “serve[] on the investigating agency and all other interested parties” a

notice of hearing for the motion. See Tex. Fam. Code § 261.201(b)(2). It then noted that even

though the City had raised in its motion to dismiss Brown’s failure to serve a notice of hearing on

any party besides the City, Brown had let seven weeks elapse and had taken “no action in response

to the City’s motion to dismiss.” The City had suggested that the interested parties needing service

here include the Department’s investigations division and the victim of the counts of indecency

with a child for which Brown was convicted. At the hearing before the trial court, Brown asserted

that the victim is now an adult. In these circumstances, we agree with the City that the victim

amounted to an “interested party” entitled to service of a notice of hearing. See id. Because Brown

had not served the victim with a notice of hearing of the motion, the trial court was within its

discretion to deny the motion for in camera inspection under Section 261.201(b). Brown also told

the trial court that he is forbidden from contacting the victim. But be that as it may, the court could

exercise its discretion under the statute only after its requirements had been met. Because they

were not, irrespective of the reason, Section 261.201(b) cannot serve as the basis for Brown’s

request for documents or for an in camera inspection.

3 Brown next argues from Government Code section 552.023 and its “special right

of access to confidential information” by people “to whom the information relates.” See Tex.

Gov’t Code § 552.023(a)–(b). Presumably, Brown is asserting that the police-report documents

relate to him. A person with a special right of access to information may not be denied access

to that information “on the grounds that the information is considered confidential by privacy

principles,” but a governmental entity resisting such a person’s PIA request still may deny it under

“other provisions of this chapter or other law that are not intended to protect the person’s privacy

interests.” Id. § 552.023(b). The City here is not asserting that it is denying Brown’s PIA request

based on his privacy interests. Rather, it is choosing to deny it under “[an]other provision[] of this

chapter,” namely Section 552.028(a)(1), which gives the City discretion to deny Brown’s request.

Finally, Brown argues from Pennsylvania v. Ritchie that he was entitled to a hearing

on his request for an in camera inspection. See generally 480 U.S. 39 (1987). Ritchie concerned

a criminal defendant’s subpoena—within his criminal prosecution—to a child-protection agency’s

records concerning the alleged victim. See id. at 42–44. By contrast here, this suit is not a criminal

prosecution, and Brown has provided no applicable authority other than the PIA for his request for

an in camera inspection. Because the PIA lets the City deny his request, we conclude that the trial

court need not have held a hearing on his motion. We hold that the trial court did not abuse its

discretion by ruling that Brown’s suit is frivolous and accordingly dismissing it.

4 CONCLUSION

We affirm the dismissal order.

__________________________________________ Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Kelly and Smith

Affirmed

Filed: August 31, 2022