Shellie Hoffman Crow Austin Office
[email protected] 512-454-6864
March 3, 2023
Via Regular U.S. and Certified Mail #9414 7266 9904 2157 0268 91
The Honorable Ken Paxton
Attorney General of Texas
Open Records Division
P. O. Box 12548
Austin, TX 78711-2548
Re: City View ISD/Request for Public Information Determination
Dear Attorney General Paxton:
This letter serves as a request for a decision from the Office of the Attorney General
regarding the District’s authority and obligation to withhold certain requested information from
public disclosure. On February 24, 2023, I submitted a letter to your office on behalf of City View
Independent School District (“City View ISD” or “the District”), requesting a public information
determination and listing possible exceptions to disclosure. In accordance with the Public
Information Act, Texas Government Code section 552.301, I am now submitting the additional
information required for review in advance of the fifteen-day deadline set forth in Texas
Government Code § 552.301(e).
THE REQUEST TO THE DISTRICT
As the legal representative for City View ISD, I received a request from Trish Choate,
Times Record News (“the Requestor”) for certain information from the District. The Requestor
submitted a request (attached as Exhibit A) for the following items:
Electronic messages exchanged on the CVISD School Board members’ group text regarding
Bobby Morris, the allegations regarding him and an alleged coverup by the district, and the
decision to put him on administrative leave for the time period from June 23, 2022, through
July 3, 2022.
City View ISD asserts that parts of the requested information are not subject to the Public
Information Act under the definitions of public information in Texas Government Code, Sections
552.021 and 552.002, and/or that the requested information is not subject to disclosure under Texas
Government Code sections 552.001, 552.101, 552.102, 552.103, 552,107 and/or 552.111 as
information that is confidential by law. As such, the information would not be subject to
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Hon. Ken Paxton
March 3, 2023
Page 2
disclosure. The parts of the information that are not believed to be confidential will be provided
to the requestor just as quickly as possible. The District believes that the responsive records are
or may be confidential or otherwise prohibited from disclosure as described below.
DESCRIPTION OF EXCEPTED PROTIONS OF REQUESTED DOCUMENTS
City View ISD contends that parts of the requested documents, attached in their entirety as
Exhibit B, consist confidential communications between the school district’s attorney and the
District. On several occasions in the text message, the Superintendent, Tony Bushong (“Tony” in
the text messages) quotes my advice, as the attorney for the school district, about various aspects
of the issue they are referencing. In some strands, Board members respond back regarding my
legal advice and express issues about that advice. In all instances of this, the Superintendent and
the Board Members are relaying or referring to confidential attorney-client privileged
communications.
EXCEPTIONS TO DISCLOSURE
The Requested Records are Confidential Under the Attorney-Client Privilege, TEXAS GOV’T
CODE 552.107 AND TEXAS RULE OF EVIDENCE 503.
Section 552.107 of the Texas Government Code excepts from public disclosure
“information that the attorney of a political subdivision is prohibited from disclosing because of a
duty to the client under” the Texas Rules of Evidence or the Texas Disciplinary Rules of
Professional Conduct. Your office acknowledged in ORD-676 (November 2002) that “information
that is protected under Texas Rules of Evidence 503 is excepted from disclosure under §
552.107(1).” That same decision also acknowledged that Texas Rules of Evidence 503 qualifies
as “other law” for purposes of information that is normally considered public under Texas
Government Code Section 552.022.
In this instance, some of the documents at Exhibit B also contain attorney-client
communications between the school district’s attorney and a school district
employee/representative, as well as comments by Board Members made about that privileged
communication, and are therefore protected from disclosure by Texas Rules of Evidence 503 and
excepted from the Public Information Act by Section 552.107(1). Applying the five-part test set
out by the Attorney General in ORD-676 as indicated below, the documents should not be
disclosed.
Test Under ORD-676
The tests under ORD-676 are met, as follows:
First, City View ISD retains the law firm of Walsh Gallegos and other attorneys on an as-
needed basis, to provide professional legal services to the District, through its employees and to
Hon. Ken Paxton
March 3, 2023
Page 3
the Board of Trustees via various means of communication. Second, the requested documents
reflect communications between City View ISD and its attorneys for the purpose of facilitating the
rendition of legal services. City View ISD, which is governed and overseen by the Board of
Trustees, is a client receiving professional legal services from Walsh Gallegos attorneys. The
District pays fees to receive professional legal advice pertaining to potential claims, liability, and
legal issues in assorted circumstances. The attorneys give recommendations on how to proceed in
various situations that may occur related to the work of the Board of Trustees.
During the course of their legal representation, attorneys have engaged in communications
with top officials at City View ISD, prepared correspondence, attended meetings of the Board of
Trustees, and advised and assisted the City View ISD Board of Trustees with developing legal
issues. With regard to the excerpts in the documents at issue, a Walsh Gallegos attorney was
providing legal services to the District. This constitutes privileged communication between
attorney and client.
In the course and scope of receiving professional legal services, the District has sought
legal advice through multiple telephone conversations, email exchanges between District
representatives and an attorney, and memoranda from the attorney to the Board of Trustees. This
exchange of communication between the District and its attorney was critical to the District
receiving thorough legal representation.
Third, to effectively advise the District, a Walsh Gallegos attorney worked closely with key
District officials, including all members of the Board of Trustees. The communications at issue
are between the attorney and the Superintendent and the members of the Board of Trustees. A
school district itself acts through its Board of Trustees, and as such each Board member is a client
representative.
The communications at issue facilitated the rendition of professional legal services as set
out by the Attorney General in ORD-676.
Fourth, the requested information reflects a confidential communication that was not
intended to be disclosed to any third parties. Applying the fourth part of the test described by the
Attorney General in ORD-676, on behalf of the District, we assert that the documents at issue are
communications between or among attorneys and a District representative. The communications
were made for the purpose of responding to questions regarding a legal issue facing the District –
responding to community chatter on Facebook and actual allegations made against a District
employee.
All communications were intended to be confidential – no communication was intended to
be disclosed to any third person other than those to whom disclosure might be necessary in order
to provide legal services to the District. The confidential information in the documents was shared
only with the District and were not provided to any person outside the District. The references in
the text messages reflect legal advice given to the school district and as such, should not be released
to the public.
Hon. Ken Paxton
March 3, 2023
Page 4
Fifth, the information reflected in Exhibit B has not been released to anyone other than
the client representatives with whom the attorney was working. The discussions reflected in the
document have not been authorized for release by the client.
Having established all elements of ORD-676, the excerpts in the documents at issue are
protected from disclosure as confidential attorney-client communications under Texas Rules of
Evidence 503 and excepted from disclosure by Texas Government Code Section 552.107. Since
the requested document contains confidential attorney-client communication as contemplated by
Rule 503, the privileged information contained therein is excepted from disclosure in accordance
with Texas Government Code Section 552.107. This position was reiterated in ORD-676: “We
conclude that section 552.107(1) generally excepts an entire communication that is demonstrated
to be protected by the attorney-client privilege as defined in Texas Rule of Evidence 503.” Based
on this precedent, the District contends that excerpts marked in the documents referencing section
552.107 in Exhibit B should be withheld in their entirety.
CONCLUSION
Pursuant to Texas Government Code Section 552.301, the documents responsive to the
request attached as Exhibit A are included for review as Exhibits B. The documents are submitted
for in camera inspection without waiving the District’s claims that they are excepted from
disclosure to all persons, including the requestor, and with the understanding that the Attorney
General’s office will not release them to the public or in any way waive attorney client privilege.
A copy of this letter has been sent to the requestor, without attachments.
In accordance with state law, City View ISD believes that the requested information
addressed herein should not be released. On behalf of the District, I hereby request that your office
resolve this matter. Please contact me if you have any questions or require additional information
or documentation to assist in this determination.
Sincerely,
Shellie H. Crow
Shellie H. Crow
Attorney for City View ISD
Hon. Ken Paxton
March 3, 2023
Page 5
Enclosures
cc: Trish Choate, Requestor
Times Record News
Via Email (without attachments)
Gypsy Karr, School Board President
City View Independent School District
Via Email (without attachments)
