COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-012-CV

J. DOE, INDIVIDUALLY AND AS NEXT APPELLANTS

FRIEND OF F. DOE AND R. DOE, CHILDREN

V.

TARRANT COUNTY DISTRICT APPELLEE

ATTORNEY’S OFFICE

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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Appellants J. Doe, individually, and as next friend of F. Doe and R. Doe

(collectively, “Doe”) appeal from a trial court order denying their cross-claim for

writ of mandamus seeking to compel appellee Tarrant County District
1... As legal counsel to the sheriff’s office, the DA provides legal advice

concerning open records requests. 

2... Tex. Gov’t Code Ann. § 552.301 (Vernon Supp. 2008) (requiring

governmental entity that wishes to withhold documents from disclosure

pursuant to open records request to timely seek and obtain written ruling from

AG).

2

Attorney’s Office (“DA”) to formally disclose documents inadvertently released

pursuant to a public information request. We affirm.

Background

Jacob Muniz pled guilty to indecency with a child and was sentenced to

four years’ confinement. The incident occurred while Muniz was employed by

Boys and Girls Clubs of Greater Fort Worth, Inc. and Boys and Girls Clubs of

America (collectively, the “Clubs”). F. Doe was a victim of Muniz’s crime.

In investigating potential civil claims, Doe sent public information requests

to the DA and to the Tarrant County Sheriff’s Office (the “sheriff’s office”)

seeking documents relating to Muniz’s investigation, prosecution, and

incarceration. The sheriff’s office forwarded the request it received to the DA

for review and written response.1 The DA drafted a letter to the Attorney

General of Texas (the “AG”) asking for an opinion on whether 277 pages of the

requested documents were exempt from public disclosure.2 The DA, however,

inadvertently sent this letter, and the allegedly exempt documents, only to Doe.
3... The AG provided a letter ruling in response to the DA’s request. Tex.

Att’y Gen. OR2006-09590 (2006). In addition to addressing the DA’s claims

of confidentiality, this letter noted, without discussing the error in sending the

original request to Doe, that the DA’s request was untimely.

4... Tex. Gov’t Code Ann. § 552.301. 

3

Doe sued Muniz and the Clubs, alleging among other things that the Clubs

negligently hired Muniz resulting in the sexual assault of F. Doe. Doe provided

the DA documents to the Clubs in discovery and used some of them in

depositions. The DA, upon learning that the AG had not received its letter

requesting an opinion on Doe’s public information request, immediately sent

Doe a formal written demand seeking return of the documents and submitted

a new letter to the AG requesting an opinion regarding Doe’s requests.3 Doe

refused to return the documents, asserting that the DA failed to (1) timely

request a decision from the AG, (2) provide Doe with a written statement that

the DA desired to withhold the requested information, and (3) provide Doe with

a copy of the DA’s request to the AG as required by section 552.301 of the

government code.4

The DA then intervened in the underlying lawsuit and requested a

protective order. After a hearing, the trial court entered a protective order

requiring Doe to return all inadvertently disclosed documents to the DA and to

turn over for in camera inspection all originals and copies of depositions taken
5... See id.§ 552.302 (providing that when governmental body fails to

timely request AG opinion, documents are subject to public disclosure unless

there is a compelling reason to withhold them), § 552.321 (Vernon 2004)

(providing that if governmental body does not request AG opinion or refuses to

supply public information, requestor may file suit for writ of mandamus

compelling disclosure). The DA does not contest that its AG request was

untimely.

6... Doe also fled a petition for writ of mandamus seeking the same relief

sought by way of this appeal. This court denied Doe’s mandamus petition. In

4

in the litigation. The order further required Doe to submit an in camera letter

identifying any party and person to whom Doe had disclosed or further

disseminated the documents. Finally, the order prohibited all parties from

further copying or duplicating, in any way, any of the documents.

Thereafter, Doe filed a cross-claim for writ of mandamus seeking an order

requiring the DA to release all the documents that had been inadvertently

produced to Doe. Doe asserted that the DA’s failure to timely request an AG

opinion resulted in a presumption that the documents were public and that the

DA did not meet its burden to overcome this presumption because the DA did

not present any evidence of a “compelling reason” to withhold the documents.5

After a hearing on Doe’s cross-claim, the trial court found that there was a

compelling reason to withhold the documents and denied Doe’s writ of

mandamus. The trial court severed the mandamus action from the underlying

lawsuit, and Doe perfected this appeal.6
re Doe, No. 02-07-00010-CV, 2007 WL 530008 (Tex. App.–Fort Worth, Feb.

22, 2007, orig. proceeding).

7... See generally id. §§ 552.001–.353 (Vernon 2004 & Supp. 2008).

8... Id. § 552.002(a).

9... Id. § 552.021.

10... See, e.g., id. §§ 552.101, 552.022(a), (b).

5

Applicable Law

A. Texas Public Information Act

The Texas Public Information Act (the “Act”) requires disclosure of public

documents and information upon request to a governmental entity.7

Information is considered public if it is “collected, assembled, or maintained

under a law or ordinance or in connection with the transaction of official

business: (1) by a governmental body; or (2) for a governmental body and the

governmental body owns the information or has a right of access to it.”8

Section 552.021 of the Act requires that public information be made available

to the public during normal business hours of the governmental body.

9

However, some categories of information that would otherwise be public

under the Act are made confidential by law other than the Act, and the Act

excepts such information from the disclosure requirement in section 552.021.10

Section 552.101 of the Act provides that “[i]nformation is excepted from the
11... Id. § 552.101. Section 552.022 of the Act also creates exceptions

to disclosure for information that is “expressly” confidential “under other law.”

Id. § 552.022(a), (b). These provisions are not at issue in this appeal.

12... In re City of Georgetown, 53 S.W.3d 328, 340 (Tex. 2001) (Abbott,

J., dissenting).

13... Tex. Gov’t Code Ann. § 552.301(a), (b). 

14... Id. § 552.301 (d). 

6

requirements of section 552.021 if it is information considered to be

confidential by law, either constitutional, statutory, or by judicial decision.”11

“[G]overnmental compliance with confidentiality laws is mandatory, and their

protections may not be waived by governmental entities.”12

If a governmental agency receives a written request for public information

that it believes to be within an exception to disclosure, the agency must ask the

AG, in writing and within ten days of receiving the request, for an opinion about

the applicability of the exception.13 Also within ten days of receiving the

request, the agency must notify the requestor of its decision to seek an AG

opinion and provide the requestor with a copy of the written communications

to the AG.14 If the agency fails to timely request an open records decision from

the AG, the information requested is presumed to be subject to required public
15... Id. § 552.302. 

16... Id. § 552.321; see Simmons v. Kuzmich, 166 S.W.3d 342, 348

(Tex. App.—Fort Worth 2005, no pet.).

17... Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex.

1991); City of Fort Worth v. Abbott, 258 S.W.3d 320, 323 (Tex. App.—Austin

2008, no pet.).

18... Simmons, 166 S.W.3d at 348. Although Doe’s issues on appeal are

framed in terms of the abuse of discretion standard, we review Doe’s issues

under the appropriate standards of review. Id. at 348 n.2.

7

disclosure and must be released unless the governmental agency provides a

“compelling reason” to withhold the information.15

B. Standard of Review

Once the requested information is presumed to be public information

because of an agency’s failure to make a timely request for an AG opinion, the

party requesting the information may seek a writ of mandamus to compel

release of the information.16 An action for a writ of mandamus initiated in the

trial court is a civil action subject to appeal like any other civil suit.17

Accordingly, although pled as a mandamus action, we do not employ the abuse

of discretion standard applicable to original proceedings in the appellate

courts.18 Rather, we review the trial court's findings of fact and conclusions

of law, whether express or implied, in accordance with the standards generally
19... Anderson, 806 S.W.2d at 794 n.2; Simmons, 166 S.W.3d at 346.

20... Simmons, 166 S.W.3d at 346; Dallas Area Rapid Transit v. City of

Dallas, 4 S.W.3d 469, 473 (Tex. App.—Dallas 1999, no pet.).

21... Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996).

22... Tex. R. App. P. 34.6(c)(4); BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789, 795 (Tex. 2002).

23... Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

8

applicable to a trial court's findings and conclusions in any civil matter.19 That

is, we review findings of fact for legal and factual evidentiary support, and we

review conclusions of law de novo.20

In a trial to the court where no findings of fact or conclusions of law are

filed, the trial court’s judgment implies all findings of fact necessary to support

it.21 Where a reporter’s record is filed, however, these implied findings are not

conclusive, and an appellant may challenge them, as Doe tacitly does here, by

contesting the legal sufficiency of the evidence to support such implied

findings.22 The judgment must be affirmed if it can be upheld on any legal

theory that finds support in the evidence.23

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more
24... Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.

1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"

and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63

(1960).

25... City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

26... City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.

2000) (plurality opinion); Simmons, 166 S.W.3d at 345–46.

27... City of Garland, 22 S.W.3d at 357; Simmons, 166 S.W.3d at 346.

28... Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002).

29... Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex. App.—Austin 2002,

no pet.).

9

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact.24 In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable fact-finder could and disregard evidence contrary to the

finding unless a reasonable fact-finder could not.25

Whether information is subject to the Act and whether an exception to

disclosure applies to the information are questions of law involving statutory

construction.26 We review a trial court’s construction of a statute de novo.27

The overriding goal of statutory interpretation is to determine the legislature's

intent.28 When possible, the court must find legislative intent in the plain and

common meaning of the words used in the statute.29 Moreover, in construing
30... Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d 754, 758 (Tex.

App.—Corpus Christi 2007, pet. denied) (citing Pack v. Crossroads, Inc., 53

S.W.3d 492, 504 (Tex. App.—Fort Worth 2001, pet. denied)).

31... Id.

32... Specifically, Doe requested the following: Muniz’s Tarrant County

Jail telephone call log and telephone record verification and match results;

Muniz’s Tarrant County Jail visitation log; Muniz’s Tarrant County Jail

disciplinary records; all Texas Department of Criminal Justice documents

providing information relating to Muniz’s 1980 and 1988 convictions;

penitentiary packets; F. Doe’s school, medical, and psychological records; all

witness statements and summaries of witness statements; names, addresses,

and telephone numbers of all witnesses the DA interviewed or contacted; all

documents pertaining to the criminal history of any witness or victim; and

10

statutes, we give due consideration to AG decisions even though they are not

binding.30 This is especially so in cases involving public information requests,

as the legislature has imposed on the AG the duty to provide written opinions

to governmental entities that seek to withhold information requested under the

Act.31

Analysis

A. Section 552.101 Exemptions from Disclosure

Doe requested documents from the DA that fall into three categories: (1)

documents used or developed in the investigation of abuse or neglect of a child;

(2) Muniz’s Tarrant County Jail visitation cards; and (3) National Crime

Information Center (“NCIC”) and Texas Crime Information Center (“TCIC”)

reports.32 Doe’s first issue on appeal is whether the DA, after not timely
diagrams, maps, or sketches of the Clubs’ buildings.

33... The DA identified almost 1,000 documents that it was willing to

provide to Doe upon payment of the appropriate fees. See Tex. Gov’t Code

Ann. § 552.2615(a) (requiring governmental body, if request for information

will result in costs over $40.00, to provide cost estimate to requestor

identifying and explaining charges to be imposed). Those documents are not

the subject of this appeal; the only documents at issue here are those the DA

sought to withhold.

34... Id. § 552.101. 

35... Because we conclude that the DA provided evidence to support the

trial court’s determination that there were compelling reasons to withhold the

documents from disclosure, we do not reach the DA’s argument that it was not

required to show a compelling reason.

11

seeking an open records ruling, failed to present any evidence of a compelling

reason sufficient to rebut the presumption that the information Doe requested

is public information.33 Relying on section 552.101,34 the DA argues that these

documents are exempt from public disclosure because they are “confidential by

law” and, therefore, the requirement in section 552.302 that the governmental

body must timely request an AG opinion or else the information is presumed to

be open does not apply. Alternatively, the DA argues that it presented

“compelling reasons” to withhold the documents. We agree with the DA that

it demonstrated compelling reasons to withhold the information.35
36... 166 S.W.3d 342 (Tex. App.—Fort Worth 2005, no pet.).

37... Id. at 350.

38... Id. (“[T]he governmental body must . . . show that its claimed

exception to disclosure falls within one of the statutory exceptions to disclosure

and how that exception creates a compelling reason to withhold the

information.”); see id. at 351–52 (Cayce, C.J., dissenting) (stating that, by

presenting evidence that releasing information could compromise criminal

investigation, governmental actor demonstrated compelling reason to withhold

information).

12

1. Compelling Reasons

Relying heavily on this court’s opinion in Simmons v. Kuzmich,

36 Doe

asserts that the DA’s failure to timely request an AG opinion means that the

documents are presumed to be public information and that the DA was

obligated to provide evidence of a compelling reason to withhold the

documents. In Simmons, this court held that a governmental entity attempting

to overcome the presumption cannot simply assert an exception to disclosure;

rather, the entity must present evidence of a compelling reason to prevent

disclosure under that exception.37 In reaching this conclusion, however, we did

not examine what would constitute a “compelling reason” for a governmental

actor to withhold information. We held only that whether an exception applies

is a different inquiry than whether there is a compelling reason to withhold

information and that the governmental actor must do both in order to withhold

information.38
39... Tex. Att’y Gen. ORD-630 (1994); see also Tex. Att’y Gen. ORD-150

(1977) (“This presumption [of openness after a governmental actor fails to

timely request an AG opinion] can only be overcome by a compelling

demonstration that the information should not be released to the public, as

might be the case if the information is deemed confidential by some other

source of law, or if an exception designed to protect the interest of a third party

is applicable.”).

40... Tex. Gov’t Code Ann. § 552.352; see also Tex. Att’y Gen. ORD-676

(2002) (“Section [552.101] . . . refers to information that a governmental body

may not choose to release, and the improper disclosure of which results in

criminal penalties under the [Act]. Thus, when section 552.101 applies, the

13

The AG has articulated a “general rule” about what constitutes a

“compelling reason” to withhold information from the public in light of the

section 552.302 presumption of openness. Specifically, the AG has identified

two “compelling reasons” for a governmental actor to withhold information:

[T]his presumption may be overcome where [1] the information at

issue is deemed confidential by some source of law outside the

[A]ct, and is therefore excepted from disclosure by section

552.101 . . . , or [2] where the interest of a third party is at stake.

For example, where information is confidential by statute or

implicates the privacy interests of a third party, the information

must be withheld from public disclosure even though the

governmental body maintaining the information has failed to make

a timely request for an open records decision.39

Statutory and case law support the AG’s general rule. The Act itself

provides a “compelling reason” for a governmental actor to withhold

information by imposing criminal penalties on any person who “distributes

information considered confidential under the terms of [the Act].”40 Moreover,
[Act] prohibits the governmental body from disclosing the information.”)

(footnotes omitted).

41... Jackson, 243 S.W.3d at 757–58 (holding that Transportation Code

section 552.051 prohibits disclosure of information in basic driver’s license

record file, and because TDPS demonstrated that statute required TDPS to

maintain confidentiality of this information, TDPS satisfied burden to show

compelling reason to withhold information).

42... Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d

668, 679 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The AG has also

consistently opined that the Act does not compel disclosure of information

where “release of that information would impair some constitutional right.”

Tex. Att’y Gen. ORD-430 (1985) (holding that lists of persons who visited with

inmates are exempt from disclosure because information is confidential by

constitutional law); see also Tex. Att’y Gen. ORD-185 (1978) (holding that logs

of inmate correspondence are confidential by constitutional law); Tex. Att’y

Gen. ORD-100 (1975) (holding that portions of library circulation records linking

identities of individual patrons to materials accessed by those patrons are

confidential by constitutional law).

14

the Corpus Christi Court of Appeals recently agreed with the AG that a

governmental actor demonstrates a “compelling reason” to withhold information

when that actor establishes that the information is confidential by statute.41

And the Texas Supreme Court has recognized that an “individual does not

forfeit all right to control access to intimate facts concerning his personal life

merely because the State has a legitimate interest in obtaining that

information.”42

Accordingly, we conclude that a governmental actor demonstrates a

“compelling reason” to withhold public information when the actor shows that
43... Tex. Gov’t Code Ann. §§ 552.101, 552.302; Indus. Found., 540

S.W.2d at 678-79; Jackson, 243 S.W.3d at 757–58; see also supra n.39. We

emphasize that this opinion should not be construed as identifying the only

“compelling reasons” to withhold information; there may be other such reasons

that are not relevant to the disposition of this appeal.

15

(1) it is prohibited by statute from disclosing certain information and, therefore,

that information is exempt from disclosure under section 552.101, or (2) the

disclosure of the information implicates the constitutionally protected privacy

interest of a party other than the governmental body.

43

2. Information that is confidential by statute

Doe’s open records request sought information regarding investigations

into allegations of child abuse, and it also sought NCIC and TCIC reports. The

DA urged, and the trial court held, that the DA had a compelling reason to

withhold this information because it is made confidential by statute.

a. Family Code Section 261.201

Section 261.201 of the Family Code clearly removes information within

its scope from disclosure under the Act. That section declares the following:

(a) The following information is confidential, is not subject to public

release under [the Act], and may be disclosed only for purposes

consistent with this code and applicable federal or state law or under

rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under

this chapter and the identity of the person making the report; and
44... Tex. Fam. Code Ann. § 261.201(a) (Vernon Supp. 2008); see also

Coachman v. State, 692 S.W.2d 940, 945 (Tex. App.—Houston [1st Dist.]

1985, writ ref’d).

45... See Tex. Dept. of Human Servs. v. Benson, 893 S.W.2d 236, 242

(Tex. App.—Austin 1995, writ denied).

46... See Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001

(1987) (describing compelling interest in protecting child-abuse information);

Benson, 893 S.W.2d at 242 (noting purpose of confidentiality protections in

family code to encourage reporting of suspected child abuse).

16

(2) except as otherwise provided in this section, the files, reports,

records, communications, audiotapes, videotapes, and working

papers used or developed in an investigation under this chapter or

in providing services as a result of an investigation.44

Confidentiality is central to the family code provisions governing the reporting

of child abuse,45 and the State has a compelling interest in protecting the

confidentiality of information used or obtained in an investigation of alleged or

suspected child abuse.46

The terms of section 261.201 alone provide a “compelling reason” for the

DA to withhold some of the information Doe requested. By expressly

exempting information within the scope of section 261.201 from the scope of

the Act, the legislature imposed on the governmental body a duty to maintain

the confidentiality of that information.

Accordingly, the only issue for the trial court to resolve was whether the

documents contained information within the scope of section 261.201.
47... Worford, 801 S.W.2d at 109.

48... Tex. Att’y Gen. OR2006-09590 (2006).

17

Because the trial court did not enter findings of fact or conclusions of law, we

must affirm the trial court’s order if there is any evidence to support the

conclusion that the information is within the scope of section 261.201.47 The

trial court took judicial notice of the entire record in this proceeding. The record

included the documents at issue, which had been submitted in camera to the

trial court. The record also included the AG ruling provided in response to

Doe’s open records request, in which the AG determined that those documents

identified by the DA as within the scope of section 261.201 “must [be]

withh[e]ld . . . under section 552.101.”48 This was sufficient evidence for the

trial court to have determined that some of the documents were within the

scope of section 261.201 and, therefore, the DA had a compelling reason to

withhold them from disclosure.

b. Government Code Section 411.083

Doe also sought information contained in NCIC and TCIC reports relating

to Muniz. Section 411.083 of the Government Code provides that “[c]riminal

history record information maintained by the [Department of Public Safety] is

confidential information for the use of the department and, except as provided
49... Tex. Gov’t Code Ann. § 411.083 (Vernon Supp. 2008).

50... See, e.g., Tex. Att’y Gen. OR2008-12058 (2008), OR2008-12002

(2008). 

51... Tex. Att’y Gen. ORD-430 (1985), ORD-428 (1985), ORD-185

(1978).

18

by this subchapter, may not be disseminated by the department.”49 As with the

other categories of documents at issue here, the AG has consistently held that

information within the scope of section 411.083 is exempt from disclosure by

section 552.101.50

As with the documents under section 261.201, the trial court was

provided the NCIC and TCIC reports for in camera review. Section 411.083

provides a compelling reason to withhold such reports. The trial court did not

err in denying mandamus relief to Doe regarding these reports.

3. Information that is confidential by constitutional law

Relying on the exemption in section 552.101 for information that is

confidential based on constitutional law, the DA sought to withhold from

disclosure to Doe visitation logs and other materials reflecting communications

between Muniz and other persons. The AG has opined that such information

is exempted from disclosure under the Act because it implicates the

constitutionally protected privacy interests of third parties.51 In particular, it is

established constitutional law that, subject to regulations reasonably related to
52... See supra n.50.

53... See Tex. R. App. P. 38.1(h) (“The [appellate] brief must contain a

clear and concise argument for the contention made, with appropriate citations

19

the state’s interest in the order and security of penal institutions, inmates and

private persons have a constitutional privacy interest in maintaining the

confidentiality of correspondence and communications between them.

52

As with documents reflecting information made confidential by statute,

the record included documents reflecting Muniz’s communications with private

persons, as those documents were submitted in camera. This information is

exempt from disclosure under the Act because it is confidential by

constitutional law. Accordingly, the trial court did not err in concluding that the

information in these documents was exempt from disclosure.

Having concluded that the DA showed a compelling reason to withhold

the documents at issue, we overrule Doe’s first issue.

B. Deposition Transcripts

Doe’s second issue on appeal alleges that the trial court abused its

discretion in removing entire witness deposition transcripts from the record,

without conducting an in camera inspection. Doe, however, wholly failed to

provide us with any argument or authorities in support of this issue as required

by appellate rule 38.1(h).53 An issue on appeal unsupported by argument or
to authorities and to the record.”).

54... Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas

2004, pet. denied), cert. denied, 543 U.S. 1076 (2005). 

20

citation to any legal authority presents nothing for the court to review.

54 Issue

two is overruled.

Conclusion

Having overruled both of Doe’s issues on appeal, we affirm the trial

court’s judgment. 

JOHN CAYCE

CHIEF JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED: October 9, 2008