Dallas Criminal Defense Lawyer Blog

Collin County has jumped on the Vampire Prosecutor bandwagon with "no refusal" DWI weekends. A recent DMN story featured a Collin County ADA talking about their new tough on DWI blood draw program.

I filed an open records request for communications, documents, memos etc regarding implementation of this program. After all, if the Collin County District Attorney is so proud of this program then why not share the details with the public?

As usual, the CCDA sought to keep the records secret via the Attorney General. Cheap "tough on crime" PR stunts are easy for bureaucrats. Actually revealing what they are doing to the public is always met with resistance.

Today I received the Attorney Generals ruling. Collin County's illegal unconstitutional forced blood draw program will remain secret. Th CCDA is allowed to withhold most of the documents I requested. I am still unclear as to what, in anything, they are required to send.

How did Sunshine lose? The Texas Government Code states that "internal records" for "internal use" are exempted if "prepared by an attorney representing the state in anticipation.... [of] criminal litigation."

Unbelievable. Prosecutors use judicial activism to create new law, violate your constitutional rights, violate clear provisions of Texas law, and then get to keep it secret from the public.

Bureaucracy always chooses the path of least disclosure.

Some earlier posts on Vampire Prosecutors and DWI No Refusal Policies

Why They Clearly Violate Texas State Law, (COCA Judicial Activism To The Rescue!)

Fort Worth Police

Putting the Force in Forced Blood Draws

Vampire Prosecutors Part II

Sentry, is an online snitch program run by the Department of Public Safety. Sentry allows the public to make anonymous reports of criminal/terrorist activity. From the DPS website-

Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference! Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference!

Citizen Informants- Historically Not Good For Freedom
Let us start with the obvious.Turning citizens into a vigilante spy network is not the work of a limited government. Historically, only tyrants have used such methods. The Stasi and KGB both used citizen informants extensively.

Our government, state and federal, knows that the public will accept almost any program to "fight terrrorism." Ergo, Sentry is not a "snitch on your neighbor for drugs" program. Sentry is for "homeland security."

I was hoping to shed some light on this program. I wanted to see what "terrorist" activity was being reported. Just like DWI roadblocks are really used to find drugs, I expected to find that Sentry was really being used to catch illegal aliens and drug users.

Sentry received over 2,000 reports during 2007. I filed an open records and asked for a copy. The typical bureaucratic reflexes (stall, delay, never disclose) set in and DPS filed for an Attorney General Opinion.

AG Opinion- Keep The Snitching Secret
The AG ruled and- I lost. These records are going to be kept secret unless I file a lawsuit. How was open government defeated?

First of all, DPS filed their response after the 10 day deadline. It should not have been considered. Procedure aside, here is the AG's logic.

1. Texas Open Records Law allows information to be kept from disclosure if the information is confidential by law.
2. No Texas law makes this information confidential.
3. However, a federal law on intelligence databases prevents this information from becoming public.

How does a federal law apply to Texas Open Records? Bribery. The Omnibus Crime Control Act of 1968 is merely a grant program. If a state wants federal cash, they have to play by the rules. Texas, like all states, has chosen to take the money and adopt federal standards for Texas law enforcement.

A side note on limited government/federalism. An expansive federal government that seeks to solve all problems (education, health care, retirement, crime) is anathematic to state's rights and liberty.

Here is how the federal grant hustle works. The feds annually take billions from the citizens of each state. If a state wants to recover the money they have to sign away their sovereignty. If you want education dollars you have to follow No Child Left Behind. If you want highway money then no drinking under 21.

If a state does not take part in this extortion then their citizen's money will go to another state. It's a crooked system and a reason why our federal government was supposed to be limited. Decisions about Texas Open Records should be made by Texans. A Senator from Oregon or a Rep from Kansas has no business deciding Texas law.

Ratemycop.com is a new website where the public can post information on law enforcement. RMC is sending out open records requests to Texas law enforcement agencies. District Attorney offices are responsible for handling some Open Records requests.

How do you think prosecutors feel about Open Records/RateMyCop.com? Let's ask Jim Tirey of Plainview, Texas. From the TDCAA message board.

There are many PIA requestors who are merely out to harass a particular government organization. They make hundreds, if not thousands of requests on a continuing basis. The government entity has to comply; there is no exception for harassing requests.

The striking aspect about organizations such as ratemycop is that it appears to lack a reasonable purpose. If anything, it probably serves to harass the men and women who are out every day trying to make our society safe.

First of all, no entity is more harassing than law enforcement. Only the State jails people who are innocent, or for unpaid traffic tickets, or for engaging in consensual victimless behavior. It shows a disturbing lack of insight that the a prosecutor would consider making copies of public documents harassment. What would that make a suppression hearing- Murder?

Mr. Tirey also states this information serves no reasonable purpose. He must not read This Week's Corrupt Cop Stories. Maybe a service like RateMyCop could prevent disasters like Tulia in the future.

Finally, no TDCAA post would be complete without a John Bradley quote. How does JB feel about Open Records? He thinks they get in the way of his noble crime fighting mission. If any police department can not solve crime because of open records, they are too inept to be in law enforcement.

Prosecutors are in the unique position of being able to let lawmakers know the sometimes dangerous and often unintended consequences of the bills they pass. In the area of public information, some of those laws directly conflict with our duty to make sure investigations are conducted in a safe and professional manner. Interruption by disclosure of confidential information sometimes can and does prevent a worthy public goal of solving crime.

Prosecutors are not in a unique position. I see the dangers and unintended consequences of stupid laws every day. Mr. Bradley would probably be surprised to learn that his "unique" insight on open records is really one of my arguments against Prohibition.

You know Open Records are important if the Government hates it. The State exists not to make your life better, but to advance the interests of the State. Prosecutors see no benefit to Open Records because it does not benefit them directly.

It is the definition of hypocrisy that our Government demands more of our privacy and personal information yet feels harassed when citizens dare ask for copies of public documents.

If you want to know more about your Government file an Open Records request. Prosecutors have much more pull with the legislature than open records activists. If JB and his ilk get their way, open records may be a thing of the past.

Recap- I am participating in a WikiFOIA open records project. Open records requests are being sent to all 50 governors to see if their interoffice email is available to the public.

I sent a open records request to Rick Perry. I asked for all emails to and from the Office of the Governor for four days.

$217 for email
I received a letter from Office of the Governor today. I was told today that it would cost $217 to produce these emails.

That cost includes 12 hours of staff time at $15 an hour plus an extra 20% "overhead" charge. Government employees require 12 hour to do what my Outlook program can do in 30 seconds. I can't wait until they run my health care.

What Next?
Should I send the $217? Nah. I enjoy open records, but not $217 worth. I am considering asking for a waiver of the fee since this material primarily benefits the public. That is supposed to insulate costs in these requests. However, I'm not sure I want to spend the energy. After all, in the private sector I have to keep working to make money.

Labels: open records, Texas

The Collin County District Attorney is proud of their forced blood draw DWI program. They bragged about it to the media, and on the TDCAA message board.

However, they were less enthusiastic when it came to my open records request. As I expected the Collin County DA fired off a letter to the Attorney General asking to keep details of this program secret.

The AG request (right) is notable only for it's pathetic brevity. AG requests usually carry histrionics about officer safety. Collin County merely lists statute numbers and asks for relief.

My prediction- The AG will rule against Collin County and require disclosure. The AG does not favor short unarticulated arguments.

If I walked into court during a criminal trial and said "Objection, Bill of Rights", and then left I wouldn't expect to win either. Obviously, this is just a delay tactic. There can be no legitimate purpose to a request designed to fail.

Why These Blood Draws Should Be Unconstitutional
From your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself, and shall have the right of being heard by himself or
counsel...

Let's see, we hold suspects down and force them to give blood all while denying them the right to an attorney. Maybe, just maybe, that could violate these provisions.

Labels: Collin County, DWI, open records

WikiFOIA is running an open records expiriment. Bloggers are filing open records requests asking their Governor for email. I am proud to be part of this project and will send a request to Rick Perry today via email (my preferred method).

This project is in response to a series of incident of email destruction among executives in Government. For the history click here.

If you want to join this Sunshine Bloggers Project feel free. Here are the instructions.

Also, here is an excellent Open Records Letter Generator.

Update- Chelsea, a very cheerful employee of Rick Perry, called me to clarify my request. I have dealt with many PIO workers and they have all been very helpful. I hope to post these emails soon.

Ken Sparks, from the Colorado County DA's office was kind enough to quickly respond to my open records request (Thanks, Ken!). Although I may disagree with my prosecutor colleagues on the issues, it is more often than not that we can work together. If only City Attorneys were as cooperative on open records requests.

Many of you want to know more about Texas Open Records. My open records 101 details the process I use to get open records. In an effort to further educate the public, and train more citizens to pursue open records, I have cut and pasted this FAQ from the Texas Attorney General.

What is the Public Information Act?
The Public Information Act, formerly known as the Open Records Act, is located at chapter 552 of the Government Code. The Act provides a mechanism for citizens to inspect or copy government records. It also provides for instances in which governmental bodies wish to, or are required by law to, withhold government records from the public.
What types of records are subject to the Public Information Act?
Any information collected, assembled, or maintained by or for a governmental body is subject to the Public Information Act. The format (paper, electronic, microfilm, etc.) of the record does not affect its status as a public record.
What is a "governmental body"?
For purposes of the Public Information Act, the term "governmental body" encompasses all Texas public entities at the state and local levels. It does not include the judiciary. Private entities may be considered governmental bodies if they are supported in whole or in part by public funds or they expend public funds. The Public Information Act does not apply, however, to private persons or businesses simply because they provide goods or services under a contract with a governmental body.For purposes of the Public Information Act, a governmental body includes all governmental entities with the exception of the judiciary. In addition, some non-governmental entities that receive public funds are considered governmental bodies. -->
How can I request records of the judiciary?
Many court records are available for inspection or copying at the court clerk's office. However, records of the judiciary do not fall under the Public Information Act. To request records of the judiciary, the request must be in writing and must be addressed to the court's custodian of records. For more information about requesting and withholding records of the judiciary, click here.
How do I make a public information request?
The request must be in writing and must be addressed to the governmental body. While the request does not need to be addressed to any particular person, it is a good practice to clearly label your correspondence as a "Public Information Request" or "Open Records Request." Requests sent via fax or email must be addressed to the public information officer or to the person designated by that officer to receive such requests.
What should I say in my public information request?
No "magic language" is required to trigger the Public Information Act. You should, however, make the request as clear and as specific as possible. This will enable the governmental body to identify exactly what information you are requesting.
How long does the governmental body have to respond to my request for information?
The Act provides that a governmental body must respond "promptly" to a request for information. If a governmental body is unable to produce the requested information within ten business days, the officer for public information must send you correspondence certifying that he is unable to do so and he must set a date and time when the records will be available to you.
May a governmental body ask me why I want the records?
No, a governmental body is forbidden from inquiring about the purpose for which the records will be used. However, if a request is unclear or very broad, the governmental body may ask the requestor to more clearly identify or narrow his or her request. Additionally, a governmental body may require additional identifying information to determine that the requestor is eligible to receive certain types of information.
When may a governmental body refuse to release the information I request?
If the information you request falls within one of the exceptions to disclosure found in the Public Information Act, the governmental body may refuse to release the information while it seeks an open records decision from the Attorney General. Unless the governmental body has a previous determination from a court or the Attorney General regarding the precise information requested, a governmental body cannot determine on its own to withhold information.

To recap- I filed an open records request for any local DWI enforcement materials developed or used by Wylie PD. At trial two officers testified these materials did not exist. Through an open records request I learned that not only do such materials exists, but the City tried to withold them claming-

Release of theInformation requested would give people insight into our procedures, which wouldput officers at a disadvantage in a situation regarding: DWI enforcement....searches, arrest and detention, including but not limited to, placing the officer's life in danger. In addition the Information relates to policies and procedures which are different from those commonly known with law enforcement and crime prevention."

Today I received those materials. Basically Wylie put together a 6 page outline on how to handle a DWI arrest. It contains mostly basic DWI 101 material.

WARNING- WYLIE POLICE OFFICERS MAY DIE IF YOU READ THIS.

The statement from Wylie PD's attorney contains many lies, the two most obvious are that these procedures are somehow different than those commonly known, the second is that officer's lives will be threatened. Hyperbolic boilerplate fabrications seem to be the norm in Open Records requests.

I should change my FOIA request letters to match the garbage these City's Attorneys put out. Maybe something like "Million of children may perish, the Moon may explode, and puppies will be tortured if these records are not released within 24 hours!!!!"

The City of Austin finally turned over their records on the Austin PD/Austin Energy Warrantless surveillance program. To recap, Austin PD has a deal with Austin that gives Austin PD access to customer electricity usage information. I filed an open records request for information on the program. Austin PD fought the request by asking for an AG opinion. The AG ruled for disclosure. Today I received the materials from the City of Austin Law Department.

What I Received
I received a list of email addresses for city employees (I'm not really sure why), the Austin Police's customer service agreement with Austin Energy (to provide electricity, not customer info), and a copy of the Austin PD Organized Crime Division Operation Procedure Manual.

The Procedure Manual is eight pages long. The city redacted all but two sentences. The still sent me 8 pages though, with a nice big "redacted- not responsive" stamped on each page to highlight their power of non disclosure.

The Two Sentences
Here is what the City of Austin fought to keep secret. Here is the information that would "endanger officer safety" if released. Drum roll..........................

"Assigned Personnel will use investigative techniques to include.....
F. Check utilities at reported location."

Tax Dollars At Work?
That's it. Austin PD, though the City of Austin Law Department, wasted tax dollars to fight the release of those two sentences. The City told the Attorney General that releasing those two sentences would "endanger officer safety." Is anyone else insulted by such fraudulent arguments? The City of Austin's Law Department is making a mockery of open records and law enforcement such sorry arguments.

No Program Exists
Sometimes what you don't find in an open records request is as important as what you do find. In this Austin PD has no program for this warrantless surveillance. Their is no oversight, no reporting of searches, no suspicion needed to search, nothing. Austin PD has unfettered access to your personal information with no policy as to how, when, or why the information can be accessed.

If an officer is getting divorced and wants to check his spouse's utility bill then he can. Want to see if you neighbor's house is energy efficient? Call Austin PD. Law enforcement discretion rarely goes without abuse, even seemingly benign powers like utility bill searches.

The Harris County DA is in turmoil for a number of recent events. One being an email that mentioned problematic "Canadian" jurors. This email was sent between Prosecutors. "Canadians" being a code work for African Americans.

I filed an open records request to the Dallas District Attorney's office to see if there had been any mentions of "Canadians" in their email. Specifically, I asked for any emails sent by any attorney that had the word "Canadians" in it.

The response from the Dallas office- We can't search our own email.

Really? You don't have Google desktop? ">Dallasites spend millions of dollars yearly for government technology that can not perform a simple search? No wonder so many innocent people are convicted in Dallas County.

Austin Energy Warrantless Surveillance To recap- Austin Police and Austin Energy have an agreement that allows for warrantless surveillance of consumer electricity bills. Austin PD uses this information to search for marijuana growing operations sans warrant.

Request
I filed an open records request with Austin PD and asked for internal policies, inter alia. I received this information, however other records were not disclosed. Austin PD sought an.. wait for it... Attorney General Opinion to avoid disclosure. ACLU Texas also filed a request for the same information.

Labels: austin energy austin police, open records

Thanks to Mark Bennett for his kind words on my open records work. Open records requests are a patriotic duty. The tree of liberty may not always need the blood of tyrants, only their paper trail.

I have received some email asking about the open records process. Here is how I do it.

Find The Right Entity
Search the Internet for the appropriate agencies open record/public information office. Email requests are perfectly valid and my preferred method.

For the City of Dallas- http://dallascityhall.com/pio/open_records/index.html
You can email, fax, snail mail, or use their online form to request records.

For Fort Worth send an email- publicinformation@fortworthgov.org

How to ask, and What to ask for-
No legalese or magic language is required. Simply state that your letter/email is an open records requests. Then ask for the documents you want. Be as specific as possible and be sure and include a time period for your search (eg all documents since 2002).

You will be charged for copying ($.10 a page) and other expenses. Include your name, address, email, fax, and phone number. I have received a few courtesy calls from a Public Information Officer to help with my request. They are generally helpful and courteous.

My open records requests are very minimal. Here is my Dallas SWAT request.

Please accept this email as an open records request. Please send any documentation, including police reports, that detail any situation in which the Dallas Police, or Dallas SWAT went into a residence to serve a warrant AND the officers either entered the wrong home, or there was mistake in address on the warrant.

In sum, I am looking for reports on how often Dallas PD the SWAT unit have attempted to enter or have entered the wrong house with a search warrant. Please limit the search to documents created on or after January 1, 2002.

That's it. If you want emails, be sure and ask for them. If you want police reports, ask for those. Asking for "all documents" is good, but the PIO may overlook something if you aren't specific.

The Attorney General
If the government wants to keep from disclosing information they will seek an Attorney General Opinion. The government will argue that certain documents are protected by statute or case law from being disclosed. This is a common delay tactic and does not always signal you have uncovered the next Watergate.

You do not have to file any response with the AG. Simply wait for their decision. You can appeal if they rule against you. I never have.

Don't Fear Your Government
Do not be afraid to asking for open records. I have had a few remarks that these requests may result in an IRS audit or my house being raided. Libertarianism can devolve into government paranoia. However, I make these requests without concern.

I started seeing this as good blog content (daily copy is hard to produce), but it is now a civic duty. It has enhanced my defense practice and even created a news item in Austin.

Inspiration- Fight "Sovereign Mischief"
“A fundamental premise of American democratic theory is that government exists to serve the people. … Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance” -- Supreme Court Justice Sandra Day O'Conner

"Let the people know the facts, and the country will be safe." -- Abraham Lincoln

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.” —Lord Acton

Labels: open records

First, a recap- I had a DWI trial in Collin County. The arrest was made by the Wylie PD. I subpoenaed the arresting officers to bring any information on local DWI procedures to trial

NHTSA has developed the standard DWI testing and arrest procedures. I was looking for any additional training or procedures used or developed by the Wylie PD. I filed an open records request before trial asking for the same information. By the day of trial I had not received a response to my open records request.

Day of trial- I put both officers on the stand to testify as to the existence of local DWI procedures. The two officers stated no such records exists. At that point I believed there was no point in waiting on the open records request so the trial went on.

Trial Ends- Finding of guilt by the jury. After trial I receive my open records response. Wylie PD, by and through their attorney, states that not only does Wylie have local DWI procedures, they are somehow confidential and not subject to open records disclosure. Wylie PD sought an Attorney General Opinion to deny access to the records.

Finally- I received the Attorney General Opinion which states that all the records I requested must be released. I look forward to finding out what was so important about Wylie DWI procedures as to exclude from the public, and exactly what the two officer's testified to during trial.

For your viewing pleasure, here is the AG opinion. FYI- The CD labeled "Hooker" is not what you think. It is the arresting officer's name.

Labels: DWI, open records

Here are two questions I sent to the Office of National Drug Control Policy-

1. What is the ONDCP policy for drug testing employees?
2. What is the ONDCP policy for past drug use in employment screening?

Here is the response I got from Krystal, a tax payer funded propogandist

If you can provide us with more specific information as to why you are requesting information about internal ONDCP operations and please also supply us with information on how you intend to use the information as that may help expedite your request.Please let us know if you have any questions.

Thank you,

Krystal
Content Specialist
ONDCP Clearinghouse

That's a direct quote. Krystal managed to use the word information 4 times in one sentence. You would think I was asking for George Bush's cell phone number. It is clear that the qualifications for federal propoganda specialist are not that high.