The Austin Chronicle

Killer-D Lawsuit Still Alive

By Jordan Smith, May 28, 2004, News

State Rep. Lon Burnam, D-Fort Worth, scored a legal victory on May 13, when Texas' 3rd Court of Appeals sent his suit against the Texas Department of Public Safety back to district court for further proceedings. Burnam filed suit in May 2003, claiming the DPS violated state law by destroying documents related to its involvement in last spring's manhunt for the "Killer D's" – the state reps, including Burnam, who fled to Oklahoma to break the House quorum and stall Republican redistricting plans – while Burnam's open-records request for those documents was pending before the agency. The DPS argued that they hadn't destroyed any records related to Burnam's request, that the question was moot because the documents were already gone, and that neither argument really mattered since "sovereign immunity" ultimately insulates the DPS from Burnam's suit.

Travis Co. Visiting Judge Charles Campbell last year ruled that the DPS couldn't be held responsible for any document destruction because, pursuant to the records request, the agency had already supplied Burnam with whatever relevant documents they had. But Campbell also ruled that the DPS had no legal authority to have pursued the legislators in the first place. Each side appealed its unfavorable rulings, and in February a three-judge panel of the 3rd Court heard their pleas.

On behalf of the DPS, lawyers with the Texas Attorney General's office argued that Campbell had no authority to even consider whether DPS has the authority to pursue errant legislators, since a question of jurisdiction was still in limbo and needed to be resolved before any judge could rule on the merits of the case. Meanwhile, Burnam's attorneys argued that state law does include penalties for document destruction and that because a determination of whether the destroyed documents were relevant was still an open question, the case couldn't be considered moot.

In its May 13 ruling, the 3rd Court agreed with portions of each argument. First, they opined that DPS could not claim sovereign immunity in the document destruction case, since Burnam's suit wasn't a traditional "suit against the State." Instead, Burnam was seeking to "prevent the further destruction of documents" and to establish a violation of the state's retention rule, wrote Chief Justice Kenneth Law. Further, because Burnam has not been able to determine whether DPS actually destroyed any documents relevant to his open records request, the case cannot be considered moot.

Although DPS "maintains that it has turned over all relevant documents currently in its possession, that assertion, if true, does not address whether it had destroyed any documents in the first place," Law wrote. "Thus, the substantive question at issue in this case would remain unanswered. [DPS] also asserted that it never destroyed any documents. [T]hat assertion is self-serving and remains an open fact question." Nor can the case be considered moot just because the DPS says it's done destroying documents, the court ruled; "This case would be moot only when allegedly destroyed documents were identified and reconstructed," Law wrote, in remanding Burnam's case to district court.

But the court also ruled that Campbell erred in opining that the DPS had no legal right to pursue the Killer D's while bypassing the state's jurisdictional challenge of that question, and sent that portion of the case back to district court as well.

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