### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00237- CV

Juan E nriqu ez, A ppellan t

v. Rissie Ow ens, Ind ividu ally, and in h er Offi cial Capacity as Chairm an,

Texas Board of

P ardons an d Par oles, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0121 9, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J uan Enriquez, an inmate in the Texas Depa rtment of Correc tions, appea ls from

a final summary judgme nt that he take nothing on claims he had asser t ed against appellee Rissi e Owens, individually and in he r officia l c apac ity as chair man of the Texas B oard of Pardons and P ar o les (Owe ns). I n three issues, Enriquez complains of di scover y , evidentiar

y , and recordssealing order s that prec eded the district court’s summ ar y -j udg ment ruling

. Finding no abuse of discretion or harm from the ruling s Enriquez challeng es on appea l, we will aff irm the district court’s judgme nt.

BACK GR OUND

Ap p ell ant Enriquez was convicted in 1968 of murder with malice and sent en ce d
to death. After the statutory scheme under which his capital punishment was imposed was decla redunconstitutional under the 1972 Furman v. Georgia decision, Enrique z’s sentence was c ommuted

to imprisonment for life. 1

E n r iq u e z f il e d h is p r e s e nt action complaining that the Boa rd improper ly r e v ie w e d h im for pa role in 2006 with a two-thirds vote of the entire body and should ha ve instead a cted throug h

a three -member panel of the board. Enri q u ez re l i ed on section 508.045 of the g overnme nt code, which re quires that “[e]x cept a s provided by [gover nment code] Section 508.046, board me mbers and parole commissioners shall act in panels composed of three in matters of: (1) rele ase on parole .” Tex. Gov’t Code Ann. § 5 0 8

. 0 4 5 (a) (West 2004). Section 508.046, the exception to section 508.045’s thre e-me mber panel requir ement, cur rently require s a two-thirds “e x traordina ry vote” of the entire Boa

rd to rele ase on parole an inmate who was convicted of cer tain sexual offe nses

or who is require d under section 508.145(c) of the g overnme nt code to serve 35 cale nd ar y ear s befor e becoming elig ible for rele ase on parole

. See id. § 508.046 (West Supp. 2009). Although Enriquez does not come within the curr ent lang uag e of section 508.046, the Boa rd took the position that Enriquez is nonetheless g overne d by a prior ve rsion of the statute that required the two-thirds “extraordinar

y vote” of the entire Boa

rd to parole “an inmate who was convicted of a capital felony .” See Act of May 8, 1997, 75th L eg ., R.S., ch. 165, § 12.01, 1997 Tex. Gen. L aws 327, 418, amende d by Act of May 25, 2005, 79th L eg ., R.S., ch. 787, § 3, 2005 Tex. Gen. L aws 2705, 2705 (dele ting ref ere nce to inmates convicted of capital f elonies); see also Act of Ma y 25, 2005, 79th L eg ., R.S., ch. 787, § 17, 2005 Tex. Gen. L aws 2705, 2709 (making amendments applicable solely to offe nses

Enriquez’s filings below ref lect that he was also convicted of other murders in the 1960s 1 but has alre ady

discharg ed his sentenc es for those offe nses. 2committed afte r eff ective date and continuing eff ect of prior law as to felonies commit t ed b efore that date)

. Re l ev an t t o t h e issues he raises on appea l, Enriquez asser ted liability theories that includ ed eq u al protec tion violations—he alleg ed that the Boa rd single d him out based on his Hispanic ethnicity in revie wing him for parole under section 5 0 8.046’s “extraordinar y vote” proce dures while using three -member panels to consider all other “similarly situated” inmates (i.e., those who wer e convicted of murder with malice prior to 1972 and whose death s en t en ce s wer e commuted to life imprisonment).

Enriquez soug ht discovery reg arding the Boa rd’s consideration of parole for twenty

four inmates that he asser ted wer e “similarly situated” to him, including production of the Boa rd’s minutes from meeting s in which a three -member panel consider ed p ar o le for these “similarly

s ituated” inmates, and reque sting that eac h inmate be identified by name, Texas Depa rt m en t o f Criminal J ustice (TDCJ) number, offe nse, offe nse date, rac e, initial parole elig ibilit y date, last parole revie w date, and curr ent parole status. Enriquez also reque sted commitment inquiry data, including the names of

all inmates who had be en convicted of murder w ith malice bef

ore 1973 but who ha d been e x cluded f

rom parole elig ibilit y under section 508.045. The district c ourt ultimately order ed Owens to produc e the boa rd minutes and the c ommitm ent i nquiry data. To the extent that Owens claimed that any portions of t he documents wer e privil eg ed or confide ntial by law, Owens was t o submit them to the district court for in came ra revie w and asser t an y p ri v i l ege or confide ntiality claims in a privil eg e log s erve d on Enriquez. As for Enr iquez’s other di scover y , the di strict court order ed h i m t o s erve one reque st for admission to Owens inquiring whether he was being trea ted differ ently from the other inmates with reg ard to full-boar d versus three -member panel revie w. The

3court further instructed that if Owens denied that Enriquez was being trea t ed d i fferently , she was

to provide the court specific examples of other inmates to whom th e s ame proce dure or policy is applied. Any

such examples wer e to be submitted to the court f or in ca mera

revie w. Owens submitt ed a packa g e of documents to the district court, including bo ard minutes and commitment inquiry data, for in came ra revie w, along with a motion to seal, asser ting that the information was confide ntial under section 508.313 of the g overnme nt code. See Tex. Gov’t Code Ann. § 508.313 (West 2004) (“A ll information obtained and maintained [by the Boa rd], including a victim protest letter or other corr espondenc e, a victim impact statement, a list of inmates elig ible for rele ase on parole , an d an ar re s t record of an inmate, is confide ntial and privileg ed if the information rela tes to: (1) an inmate of the instit utional division subject to rele ase on parole ”). Owens also provided Enriquez the i nformation contained i n the documents in a randomiz ed chart format. The char

t lists inmates in random order , without any identify ing information, and indicates whether eac h inmate was convicted of murder wit h m al i ce, whether his sentenc e was commuted from death to life in prison under Furman , and whe t h er he is revie wed by the full panel under section 508.046, as i s Enriquez, or under a thre e-me mber panel under section 508.045. The chart shows that at l east six simil arly s i t u at ed o ff ender s are revie wed for parole under section 508.046, as is Enriquez. After rec eiving the documents, the district court indicated that documents submitt ed fo r i n ca m era revie w would be reta ined by the court pending future motions to which th o s e documents would be rele vant. Owens there afte r filed a motion for summary judgme nt. I n support, Owens attache d the above- ref ere nced char

t a s Ex hibit A and the underly ing documents, submitt ed

4for in came ra revie w, as E x h i b i t B. Enriquez objected to both exhibi ts, and the district court

overr uled these obje ctions, expl aining :

The Def endant complied with the co u rt ’s o rder of J anuar y 6, 2009 and provided the court a privileg e log and documents (Exhibi t B, s u b m i t t ed for in came ra inspection only

) proper ly authentica ted by business rec ords aff idavits supporting the information demonstrated in E x hibit A. The court finds that the documents are privileg ed pursua

nt to Section 508.313 of the Texas Governme nt Code.

On April 8, 2009, the district court also signe d an order sealing the rec ords, finding them confide ntial pursuant to g overnme nt code se ction 508.313. See Id. § 508.313. On April 24, 2009, the district court signe d an order deny ing Enriquez ’s m o t i o n for summary judgme nt and g ranting Owens’ s motion for summary judgme nt. By this order , the court d i s m i s s ed all claims ag ainst Owens. This appe al followed.

ANALYSIS

I n his first issue, Enriquez ar gu es that the district court abused its discretion by deny ing him discovery of the Boa rd’s minutes. He urg es that, contra ry to the district court’s ruling s, the minutes are not confidential unde r sec tion 508.313 of the g overnme nt code.

Section 508.313 provides:
(a) All information obtained and maintained, including a victim protest letter or other corr espondenc e, a victim impact statement, a list of inmates elig ible for rele ase on parol e, an d an arr est rec ord of an inmate, is confide ntial and privileg ed if the infor

mation relate s to: (1) an inmate of the instit utional division subj ec t t o re l ea s e o n parole , rele ase to manda tory

supervision, or executive c lemency ;

5(2) a re lease e; or (3) a perso n d i re ct l y i d en t i fi ed in any proposed plan of rele ase f or an inmate.

Id. The documents reque sted by Enriquez wer e board meeting minutes and commitment i n q u i ry data. Enriquez reque sted these documents beca use they contain parole information for other inmates and par olees, the ve ry

information expressly

made c onfidential by

section 508.313. Enriquez relies on W

eisel Enterprises, Inc. v. Curry , 718 S.W .2d 56, 58 (Tex. 1986), arg uing that Owens failed to prese nt any evidenc e to substantiate her claims of privileg e. Enriquez arg ues t h at Ow ens relied “solely on her cite to §508.313 to support her privileg e motion,” and,

acc ording to Enriquez, there is no evidenc e that the documents reque sted and submitt ed for in

came ra revie w do, indeed, contain such confide ntial information. Contrary to Enriquez’s asser tion, howeve r, W

eisel rec og nizes that documents s u b m i t t ed to a trial court in came ra may constitute the only evidenc e substantiating a claim of privileg e. See id. The court in W eisel held that the d istrict court abused its discretion beca use it denied discovery without evidenc e to support the cl ai m o f p ri vileg e and ref used to conduct an in came ra revie w. Id. at 57-58. Her e, by contra s t , Owens submitt ed t h e re q u es t ed documents to the court for in came ra revie w, and, as discussed ab o v e, the court conducte d an in came ra revie w and deter mined that those documents wer e confide ntial under section 508.313. Given the plain lang uag e of section 508.313, which makes the reque sted inmate information confide ntial as to “an i n m ate of the instit utional division subject to rele ase on parole ,” as is Enriquez, the district court acte d within its discretion in deny ing discovery of these documents. See Ford Motor Co. v. Castil lo , 279 S.W .3d 656, 661 (Tex. 2009) (trial court

6abuses its discretion in deny ing discovery only when it rea ches a decision so arb i t ra ry an d

unrea so n ab l e as t o amount to a clea r and prejudicia l err or of law). Acc ording ly , we overr ule Enriquez’s first issue.

I n his se cond issue, Enriquez arg ues that the district c ourt err ed by making a “cour t

rec ords” deter

mination without g iving notice to allow intervention. Enriquez specific ally ref ers to Rule 76a(7) , which provide s:

Continui ng J urisdiction. Any person may intervene as a matter of rig ht at any time befor e or afte r judgme nt to seal or unseal court rec ords. A court that issues a sealing order reta ins continuing jurisdiction to enfor ce, alter, or vacate that order

. An order sealing or unsea ling c ourt rec ords shall not be re considere d on motion of any party or intervenor who had actual n o t i ce of the hear ing prec eding issuance of the order , without first showing chang ed circ umstances materia lly aff ecting the order

. Such circ umstances n ee d not be rela ted to the case in which the order was issued. Howeve r, the burden of making the showing require d by para g raph 1 shall alway s be on the par ty seeking to seal re cords.

Acc ording to Enriquez, “[t] he trial court was n o t fre e to make a ‘cour t rec ords’ deter

mination without giving notice to allow interve ntion.

Enriquez’s issue is without merit. At the time that the rec ords wer e seale d, Enriquez

was a party to the l itigation, not a potential intervenor

. He can, thus , show no harm

. S ee T ex . R. App. P. 44.1(a)

. Fur

ther, pursuant to the plain lang uag e of Rule 76a , the documents a t issue were
not court re cords. Rule 76a (2) pr ovides:

For purposes of this rule, c ourt rec ords means: (a) all documents of any nature filed in connec tion with an y matter befor e any civil court, except:

7(1) documents filed wi t h a co u rt i n camera, solely for the purpose of obtaining a

ruling on the discover ability of such doc uments; (2) documents in court files to which acc ess is otherwise rest ri ct ed by law; (3) documents filed in an action orig inally arising under th e Family Code.

Tex. R. C iv. P. 76a(2)(a ).

As discussed above, acc ess to the rec ords at iss u e is expressly restric ted by section 508.313. See Tex. Gov’t Code Ann. § 508.313. Pursuant to the plain lang uag e of the rule, they are not court rec ords, and are not subject to th e re q u i re m ents of Rule 76a. Contrary to Enriquez’s asser

tion, nothing in Rule 76a require s public notice befor e the court makes an initial deter mination that documents are not court rec ords. See Tex. R. Civ. P. 76a; Gene ral Tire v. Kepple , 970 S.W .2d 520, 524 (Tex. 1998). Acc ording ly , we ove rrule E nriquez’s second issue.

I n his third issue, Enriquez arg ues that the parole board minutes ar e public rec ords, and, ther ef

o re , t h e dis trict court abused i ts discretion by sealing those rec ords. He arg ues t hat hi s ag ent, Yolanda Torre s, reque sted and rec eived copies of the board minutes that Owens claims

are confide ntial. This voluntar y disclosure, Enriquez arg ues, has waived any privileg e that Owens could have asser

ted. As discussed above, the rec ords Enriquez seeks are unavailable to him under the express lang uag e of section 508.313. See Tex. Gov’t Code Ann. § 508.313. Contrary to Enriquez’s

asser tion, the district court did not make a finding that the reque sted documents wer e public rec ords. And, even if it had, and even if the rec ords are p u blic, it rema ins that the express lang uag e of the

s ta tu te ma k e s th e m u

navailable to Enriquez throug h public information reque st or thr o u g h d is c o v e r y . 8See id. I n addition, Enriquez cannot show harm. His waiver arg ument is based on the fac t tha t his ag ent was able to obtain the very documents he had reque sted. He, thus, has acc ess to the documents and cannot arg ue that he has been harme d by the district court’s sealing order

. See Tex. R. App. P. 44.1(a) . Acc ording ly , we ove rrule E nriquez’s third issue.

Having overr

uled eac h of Enriquez’s issues, we aff irm the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: Apr il 14, 2010

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