Former Maverick County Sheriff Tomas S. Herrera Files Petition for Writ of Mandamus Against Maverick County To Compel Release of Public Information

By: Miguel Munoz, Eagle Pass Business Journal, Inc., Copyright 2017

Former Maverick County Sheriff Tomas S. Herrera, acting in his individual capacity, filed a Petition for Writ of Mandamus To Compel the Release of Public Information against Maverick County, Texas in the 293rd Judicial District Court of Maverick County, Texas on Tuesday, May 2, 2017, contending that certain public information records were unlawfully denied to him by Maverick County and/or its representatives in violation of the Texas Public Information Act.

Herrera seeks non-monetary relief in the form of an Order compelling the release of the public records requested and monetary relief of $50,000 or less in the form of the costs of litigation and reasonable attorney’s fees incurred by Plaintiff (Herrera) in the lawsuit, should he prevail.

The lawsuit arises from a series of written requests by Herrera to Maverick County and/or its representatives for public records pursuant to the Texas Public Information Act and the alleged wrongful denial of the public records requested by Herrera by Maverick County and/or its representatives.

The lawsuit alleges that on September 16, 2016, Herrera delivered a written request to Maverick County by delivery to its Maverick County Auditor’s Department, as custodian of the requested public records of Maverick County, for the following documents:  “Copies of any information used in the determination of findings that were created and reported on by Garza/Gonzalez  & Associates as acting auditor to such documents from audits performed on the Maverick County Sheriff Department Confiscated Funds (as years ended on September 30, 2010, 2011, and 2012) that led to their independent auditors report and their engaged opinion of such public records….”

Herrera’s lawsuit also alleges that he delivered another written request to Maverick County by delivery to the Maverick County Auditor’s Department, as custodian of the requested records of Maverick County, for the following public records: ” a/copy(ies) of the 2012 Maverick County Auditors Department report(s) of the Maverick County Sheriff Department Confiscated Funds for corresponding year (2012) as such reports that are sent to the corresponding state departments. The request specifically covers the report and any public information under the 2012 Maverick County Auditor’s Department report of the Maverick County Sheriff Department Confiscated Funds for the year 2012.”

The lawsuit alleges that Herrera went on to ask for additional public records from Maverick County on October 28, 2016 (two written requests) and November 2, 2016.

Herrera alleges that Maverick County by and through its legal counsel, Sanchez & Wilson of San Antonio, Texas, requested legal opinions from the Office of the Attorney General of Texas on his two September 16, 2016 public information requests and claiming the public records were exempt from being given to Herrera because the documents requested were confidential, law enforcement, work product, common privacy and litigation exceptions under the Texas Public Information Act.   Herrera wrote to the Attorney General’s Office stating his reasons why the public records requested were not exempt under the Texas Public Information Act and filed a formal complaint on November 18, 2016 with the Attorney General’s Office.

The suit adds that on December 1, 2016, the Education and Enforcement Section of the Open Records Division of the Attorney General wrote to Maverick County Auditor Sandy Watkins that Herrera had filed a formal complaint for failing to release public records to him timely and legally, and that Watkins should contact their State Office for help to resolve the problem.  Also, on December 9, 2016, the Texas Attorney General responded to Maverick County’s legal counsel and told them that the public records sought to be exempted from public disclosure to Herrera “could not be withheld because the Attorney General had not received a representation from the FBI that it wishes to withhold the information.  Therefore, the County may not withhold the submitted information….Accordingly, the County must release the submitted information.”

The lawsuit further alleges that Maverick County dragged its feet in providing Herrera the public records and did not fully comply with the Texas Attorney General decision to release them, causing Herrera to write another formal complaint against Maverick County for non-compliance.  On January 19, 2017, the Attorney General wrote a letter to Maverick County’s legal counsel, Mark Anthony Sanchez, warning him that the Attorney General may have to enforce their decision to produce these public records, but suggested to try to amicably resolve the matter.

Once again, on January 20, 2017 Herrera wrote a formal written complaint concerning Maverick County’s non-compliance in producing the public records. On February 6, 2017, the Texas Attorney General wrote to Maverick County’s legal counsel, Mark Anthony Sanchez, that Maverick County’s contention for withholding these public records that they were needed for an ongoing FBI investigations was without merit as the FBI had not expressed to the Attorney General of any pending investigation. Thus, the Attorney General told Maverick County and its legal counsel that the County “must release the remaining information.”

The suit adds that on February 24, 2017, Maverick County Assistant Auditor Karla Mazuka forwarded some public records to Herrera, but not all the public documents requested and ordered to be produced by the Attorney General.  Despite numerous requests by Herrera and the Attorney General letters to Maverick County to release the public records, Maverick County failed to produce the public records ordered by the Attorney General’s Office pursuant to the Texas Public Information Act, requiring that this lawsuit be filed against Maverick County to compel it to comply with state law and produce the public documents requested by Herrera.

Herrera is represented by Attorney Carl J. Kolb of San Antonio, Texas.

Maverick County has not filed an answer, but will most probably deny the allegations in the lawsuit.