By Tim Labadie
Assistant County Attorney in Travis County
On April 3, 2020, the Texas Supreme Court left in place a decision by the Third Court of Appeals involving Deferred Prosecution Agreements and the Texas Public Information Act (PIA). By so doing, the Court affirmed that Deferred Prosecution Agreements are excepted from disclosure under the Texas Public Information Act (PIA).
This case, Paxton v. Escamilla, was just one of many involving Deferred Prosecution Agreements, but it is the only one that required an appellate court’s decision to resolve. A look at its history is important in understanding the significance of this recently decided case.
What is a DPA?
Deferred prosecution is one of the tools a prosecutor’s office (including the Travis County Attorney’s Office) uses in exercising broad discretion in determining which cases to prosecute. A DPA is an extra-judicial agreement between a person charged with a crime and the prosecutor to defer the prosecution of a criminal charge for an agreed period of time (usually 12 to 24 months), during which the defendant must fulfill specified conditions, such as no contact with a victim, counseling for a domestic violence offender, or drug treatment. After the DPA is signed by the defendant and the prosecutor, the criminal case is conditionally dismissed. If the defendant fulfills all conditions, the county attorney takes no further action (because the criminal case was dismissed). However, if the defendant fails to comply with any of the conditions of the agreement, the county attorney has the authority to refile the charges and prosecute the case.
Our office often uses deferred prosecution when prosecutors determine that it is possible a jury would render a not-guilty verdict. For example, in an assault–family violence case, the prosecutor may choose deferred prosecution to require the defendant to address his issues so as to break the cycle of violence and protect the victim and society. While our office has always involved the victim in fashioning a DPA, we have also consistently sought permission from the Attorney General to refrain from releasing these agreements to the public to protect the purpose and integrity of deferred prosecution, as these agreements often contain admissions by the defendant and agreements to plead.
History of disclosure
Historically, our office has asserted that DPAs are excepted from disclosure pursuant to §551.108(a)(2) of the PIA (in the Government Code), which excepts from disclosure information that deals with the detection, investigation, or prosecution of crime in relation to an investigation that did not result in conviction or deferred adjudication, because after a DPA is executed, the criminal case is dismissed. Another possible exception is in §552.108(a)(1), which excepts from disclosure information whose release would interfere with the detection, investigation, or prosecution of crime.
In 2013, several open record requests were made to release DPAs. Each time, our office sought a ruling from the Attorney General that the DPA was excepted from disclosure pursuant to §552.108(a)(2) (no conviction or deferred adjudication). In each case, the Attorney General ruled that the DPA had to be released, claiming that §552.108(a)(2) did not apply because there existed a possibility that the criminal charges could be refiled because the DPAs’ terms had not yet expired. Consequently, the county attorney filed lawsuits to challenge these rulings.
All these lawsuits were settled, and we were permitted to withhold from disclosure the DPAs with the understanding that in the future, our office would assert the §552.108(a)(2) exception (no conviction or deferred adjudication) only when the term of the DPA had expired, and we would assert the §552.108(a)(1) exception (interfere with the detection, investigation, or prosecution of crime) only when the DPA was still in effect. In turn, the Attorney General would rule that the DPAs were excepted from disclosure. Such was the practice of our office and the Attorney General’s Office for about three years.
The winds shift
It all changed on September 19, 2016, when the Attorney General decided that the public release of a DPA whose term was unexpired cannot interfere with the detection, investigation, or prosecution of crime, and thus, is not excepted from disclosure by §552.108(a)(1).
This decision stemmed from an open records request from April 11, 2016. The requestor, a victim of domestic violence, wanted the DPA for her ex-husband, who had allegedly assaulted her. Because the term of his DPA had not yet expired, we asserted, as we had done in the past, that release of this agreement would interfere with the detection, investigation, or prosecution of crime, and that the DPA was excepted from disclosure by §552.108(a)(1). The Attorney General, as he had done in the past, agreed with us.
On July 12, 2016, though, another person (acting on behalf of the crime victim who made the April 11 request) made another request for the same DPA, as well as all investigative reports, statements, witness statements, court documents, filings, and any written documentation of the investigation and proceedings in the criminal case that was resolved by deferred prosecution. The County Attorney asked the Attorney General for a ruling that the information was excepted from disclosure by §552.108(a)(1), noting that the Attorney General had previously ruled that the DPA was excepted from disclosure. The Attorney General, rather than following his prior ruling concerning this specific DPA and his rulings since 2013, instead ruled that §552.108(a)(1) does not except a DPA from disclosure. The Attorney General determined that because the prosecutor’s office gives a copy of the DPA to the criminal defendant, its release to the general public would not interfere with the detection, investigation, or prosecution of crime. As to all the other information requested, the Attorney General ruled it was excepted from disclosure by §552.108(a)(1).
This change in the Attorney General’s approach to the application of §552.108(a)(1) necessitated a change in how we needed to approach the issue—no longer could we rely on a single exception to the disclosure when asking the Attorney General for a ruling. However, in our lawsuit challenging this ruling, we were limited to raising that single exception, even though others may have applied.
The County Attorney then filed suit to challenge this ruling. On April 27, 2017, while that lawsuit was pending, the person who initially requested the DPA made another open records request, this time asking for all DPAs made in assault–family violence cases between April 1, 2015 and April 27, 2017, implicating thousands of agreements. It is this open records request that is the subject of Paxton v. Escamilla.
The victim of domestic violence who made the April 27 request had the mistaken notion that our office does not inform victims of the conditions imposed upon the defendants by a DPA, and that DPAs are more concerned with the defendant than with crime victims. On the contrary, we have always involved victims in this process because it results in the dismissal of the criminal charge. Additionally, the victim is often the best person to determine whether the defendant has complied with some of the conditions, such as that he stay away from the victim’s home or workplace and have no other contact with her.
Because the Attorney General’s office had abandoned its practice of ruling that releasing to the public will interfere with the detection, investigation, or prosecution of crime (§552.108(a)(1)), the County Attorney now asserted exceptions based on §§552.108(a)(1), 552.108(a)(2), 552.103, and 552.107, so that if litigation ensued, we would not be limited to a single exception as the basis for challenging an Attorney General ruling, as we were in the prior lawsuit. In his letter ruling, the Attorney General, without explicitly saying so, divided the DPAs into two categories: those with expired terms and those with unexpired terms, and he determined that only those DPAs with expired terms are excepted from disclosure by §552.108(a)(2), while DPAs with unexpired terms were not excepted from disclosure by §§552.108(a)(1), 552.103, or 552.107. We filed suit to challenge the Attorney General’s ruling concerning the DPAs with unexpired terms.
The issues were presented to the trial court through competing motions for summary judgment. We showed that, as of April 27, 2017, the date our office received the open records request, there were 890 DPAs with unexpired terms, 845 of which were made in criminal cases that were never refiled. The other 45 agreements were made in criminal cases that were later refiled. At the time the motions for summary judgment were filed, 21 of those 45 refiled cases were subsequently dismissed, and 24 cases were still pending.
After considering these motions, the trial court rendered judgment in favor of the County Attorney, declaring that:
1) the DPAs pertaining to dismissed criminal cases that were not refiled are excepted from public disclosure by §552.108(a)(2);
2) the DPAs pertaining to dismissed criminal cases that were refiled and then dismissed again are excepted from public disclosure by §552.108(a)(2); and
3) the DPAs pertaining to dismissed criminal cases that were refiled and that were still pending are excepted from public disclosure by §§552.108(a)(1), 552.103, and 552.107 of the Texas Government Code.
On appeal, the Austin Court of Appeals agreed with us and the trial court, holding that the DPAs made in cases where charges were not refiled and those made in cases where the charges were refiled but then dismissed are excepted from disclosure by §551.108(a)(2) because those criminal investigations resulted in something other than a conviction or deferred adjudication. The Attorney General asserted that because there was a possibility that the charges could be refiled as long as the DPA was still in effect, one could not conclude that the investigation did not result in conviction or deferred adjudication. The Court, however, relying on its decision in The City of Carrollton v. Paxton, stated, “A dismissal of criminal charges, even if conditional, constitutes the conclusion of an investigation by way of some action other than a conviction or deferred adjudication.”
The court of appeals also agreed that the release of the DPAs in cases that were refiled and still pending would interfere with the detection, investigation, or prosecution of crime and were thus excepted from disclosure by §552.108(a)(1). This finding was based on evidence that the release of these DPAs would result in excessive publicity, due process violations, and endangering the prosecution. The Court also rejected the Attorney General’s contention that our office, by giving a copy of the DPA to the defendant, made a voluntary disclosure of public information (information contained in a voluntary disclosure to one person must be made available to any person), holding that the release of the DPA to the defendant is not voluntary but mandated by the Michael Morton Act.
Having determined that all the DPAs with unexpired terms were excepted from disclosure by either §552.108(a)(1) or §552.108(a)(2), the Court did not reach the issues of whether the trial court correctly determined that the DPAs relating to cases that were refiled and still pending were excepted from disclosure by §§552.103 and 552.107 (that is, the DPAs are related to litigation to which the State is a party and their release to the public violates Rule 3.07 of the Disciplinary Rules, respectively).
The Third Court’s decision—and the Texas Supreme Court’s refusal to disturb that decision—allow prosecutors to continue to offer Deferred Prosecution Agreements to resolve criminal cases. Oftentimes a prosecutor will determine that there is a likelihood that guilt will be difficult to prove, so rather than run the risk that the defendant will have no accountability for his conduct, the prosecutor can turn to deferred prosecution. There are advantages to DPAs across the board: The advantage to the community and to crime victims is that there are conditions imposed on the defendant to address and change the offensive conduct and protect both the victim and society; to the prosecutor, that the defendant makes certain admissions and agreements to plead; and to the defendant, that he obtains help to modify illegal behavior and the criminal charge is dismissed, offering the possibility of expunction.
For deferred prosecution to work effectively, prosecutors must obtain from the defendant certain admissions and agreements, which, if made public, he would not likely make. Just as important to deferred prosecution is the disclosure to the victim, at least in assault–family violence cases, of the conditions imposed on the defendant. Before this litigation, disclosure of these conditions to the victim was verbal. But now, attached to every deferred prosecution agreement is a “Deferred Prosecution Summary Sheet” that specifies the conditions the agreement imposes upon the defendant. This summary sheet is signed by both the defendant and the prosecutor, and it is provided to the victims so they know the agreement’s conditions. Because the summary sheet does not reveal the defendant’s admissions or agreement to plead, those portions of the DPA are protected from disclosure by the PIA.
 Paxton v Escamilla, 590 S.W.3d 617 (Tex. App.—Austin 2019, pet. denied).
 590 S.W.3d 617 (Tex. App.—Austin 2019, pet. denied).
 Letter Ruling OR2016-21139. (September 16, 2016).
 Letter Ruling OR2016-10351 (May 6, 2016).
 Letter Ruling OR2016-21139.
 Tex. Gov’t Code §552.326. The only exceptions to disclosure that the government can raise in a suit to challenge the ruling are those asserted in the request for a ruling, unless the exception is based on a requirement of federal law or one involving property or privacy interests.
 Section 552.103 excepts from disclosure information “relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party.”
 Section 552.107 excepts from disclosure information “that … an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under … the Texas Disciplinary Rules of Professional Conduct.”
 Letter Ruling OR2017-16049 (July 18, 2017).
 Id. at pp. 2-4.
 Some of the refiled cases resulted in a conviction or deferred adjudication. The DPAs relating to those cases were released to the requestor.
 Paxton v Escamilla, 590 S.W.3d at 622.
 490 S.W.3d 187, 196 (Tex. App.—Austin 2016, pet. denied).
 Paxton v. Escamilla, 590 S.W.3d at 622.
 Id. at 623.
 See Tex. Gov’t Code §552.007.
 Paxton v. Escamilla, 590 S.W.3d at 624, citing Tex. Code Crim. Proc. Art. 39.14(a).
 Tex. Disciplinary Rules Prof’l Conduct R. 3.07(a), reprinted in Tex. Gov’t Code, Title 2, Subtitle G, App. A. This rule prohibits the County Attorney, in the course of representing the State of Texas, from making an extrajudicial statement that he would expect to be disseminated by means of public communication if the County Attorney knows or reasonably should know that the statement will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.