Lawyers for the Texas Department of Public Safety and state Rep. Lon Burnam, D-Fort Worth, were in front of the 3rd Court of Appeals on Jan. 28, arguing that a state judge made two incorrect decisions related to this spring’s manhunt for the “Killer D’s” – the state reps, including Burnam, who fled to Oklahoma in May to break the House quorum and stall Republican redistricting plans. Burnam subsequently brought suit against the DPS, claiming the agency had violated open-records laws and agency record-retention policies by immediately destroying all paperwork related to its quest to return the legislators to the Capitol.
Visiting Judge Charles Campbell ruled that, since the DPS claimed they had supplied Burnam with all relevant documents, minus those they destroyed that were not associated with any “criminal activity,” the judge lacked any statutory authority to authorize injunctive relief. In other words, the DPS got an official slap on the wrist and was warned not to repeat its mistake. But Campbell also ruled that the DPS had no legal authority in the first place to pursue the legislators in an attempt to bring them back to the House floor.
In court last week, each side asked three 3rd Court judges – Mack Kidd, David Puryear, and Chief Justice Kenneth Law – to reverse Campbell’s unfavorable rulings. Burnam’s attorney Art Bender argued that contrary to Campbell’s decision, state law does provide for “certain relief, even damages, for destroying records.” And in attempting to persuade the justices that the DPS should be allowed to arrest truant lawmakers, the state’s attorneys argued that it is in everybody’s best interest to ensure lawmakers are present to conduct important state business and that it is “in everybody’s best interest to have these arrests carried out by peace officers,” particularly in “potentially volatile situations,” argued state Solicitor General Ted Cruz, because “nobody wants cowboys out there, charged with the delicate task of compelling attendance in the Legislature.” A decision is expected later this year.
This article appears in February 6 • 2004.