The curtain rose Wednesday on the Fifteenth Court of Appeals as the first new Texas appellate court in more than four decades showcased its broad authority over appeals involving the state.
The three-member court heard oral arguments from lawyers in a long-running battle over disclosure of Department of Public Safety records related to the 2022 Uvalde school shooting. It also considered two cases consolidated for argument where Google is attempting to obtain pretrial information about the Office of Attorney General’s allegations that the tech giant illegally captured biometric identifiers from its users. The third case regarded the firing of a Crowley ISD teacher over his use of force against a student.
Lacking a permanent courtroom, the arguments were held in the black-and-white marbled courtroom used by the Court of Criminal Appeals. Spectators filled the padded benches, with some there for the historic nature of the inaugural arguments and others wanting to get a sense of the justices’ questioning styles. The arguments were livestreamed on the Court of Criminal Appeals’ video channel.
The Legislature in 2023 created the Fifteenth Court of Appeals as the first intermediate appellate court with statewide jurisdiction and assigned it to hear cases involving the state and appeals from the new Texas business courts. Gov. Greg Abbott appointed Scott A. Brister, a lawyer and former member of the Texas Supreme Court, as chief justice. He named as justices Scott K. Field, a district judge and former member of the Austin-based Third Court of Appeals, and April L. Farris, a justice who was serving on the Houston-based First Court of Appeals.
Deposing the State
Farris did not participate in the Google arguments and was replaced by Woodie Jones, a former chief justice of the Third Court of Appeals, but she participated in the other two arguments.
Attorney General Ken Paxton alleged in a 2022 lawsuit that Google’s technology improperly captures biometric identifiers without Texas consumers’ consent in violation of state laws. Google attempted to depose a representative of the state under Texas Rule of Civil Procedure 199 in requests separately denied by district judges in Midland and Victoria counties. It wants the Fifteenth Court to order the depositions.
Google’s lawyer, Robyn Bigelow Hargrove, said Google is entitled to test allegations that Texans have been harmed and to depose the State on the basis for its factual allegations and the penalties it seeks to recover.
Among the information Google wants to know is how many complaints the attorney general’s office received about the biometric information captured, any harm that was caused and how the office would calculate penalties it seeks to recover.
Hargrove, a partner at Scott Douglass & McConnico, said the information is essential to defending the case and noted that lawyers from the AG’s office have conducted about 130 hours of depositions from Google.
Brister wanted to know who might be deposed in a case brought by the attorney general on behalf of the state, while making sure that Google’s opposing counsel could not be deposed.
“The attorney general can designate whoever it wants or whoever they will call at trial,” said Hargrove.
The chief justice did not appear convinced, wondering if the AG would have to create a new division to respond to deposition requests. He said the appeal raises separation of power issues.
“The attorney general cannot bind the legislature or the governor,” he said. “Who represents the state when the state is just one branch of government?”
In Google’s petition for writ of mandamus, Hargrove said that both the state and the Office of Attorney General have sat for many depositions, including in another recent case over biometric identifiers against Meta Platforms. In July, Texas obtained a $1.4 billion settlement from Meta over facial recognition data.
William “Billy” Cole, deputy solicitor general, said the state is “not a unitary closed organization” like Google, noting that some state agencies are headed by elected officials. He said information on penalties the state is seeking could come from the state’s designated expert on penalties.
“First, the plain language of Rule 199 excludes the State from the list of permissible deponents—probably because a deposition on behalf of the entire State would be impractical if not impossible,” the state said in its response brief.
In re Google is case number 15-24-87-CV.
Uvalde Records Disclosure
Shortly after a lone gunman killed 19 students and two teachers at Robb Elementary School in May 2022, 14 news organizations submitted public information requests to the Texas Department of Public Safety. The requests broadly sought material related to the ongoing investigation.
The law enforcement agency has faced widespread criticism for its failures to confront the gunman inside a classroom for more than an hour while students hiding in the room called 911 for help. The department has relied on exceptions in the Public Information Act for law enforcement investigations.
A Travis County district judge rejected that argument and ordered the release of all records except those subject to mandatory exceptions. The state appealed, arguing that the release would interfere with the prosecution of individuals whose actions may have contributed to the tragedy.
The former Uvalde schools police chief and a former school police officer have been indicted on charges accusing them of abandoning or endangering a child and failure to follow training. Uvalde District Attorney Christina Mitchell has supported DPS efforts to avoid release of the records.
Sara B. Baumgardner, assistant solicitor general, said some of the information DPS was ordered to release did not exist or wasn’t in DPS’s possession until long after the information requests were made.
In its brief, the state said the trial court’s order is dangerous. “Releasing the materials Plaintiffs seek would make law enforcement vulnerable by exposing information about how officers do their jobs,” the AG’s office said.
Justice Field said the reason the media is asking for the information is to determine whether DPS acted properly and “the very law enforcement agency” whose conduct is being questioned is fighting release of the records it amassed during its investigation of the school shooting.
Brister noted that no court would have time to review millions of pages of documents and hours of recordings equivalent to 250 feature-length movies to determine what should be excepted. He called on Baumgardner to provide representative documents to the court, which will be kept under seal.
Laura Lee Prather, who represents the media organizations, said exceptions to the release of public information should be construed narrowly even as the state proposes to keep quiet forever on “the most significant law enforcement failure in Texas history. “
Prather, a partner at Haynes and Boone, said DPS is claiming for the first time that the media organizations are not entitled to anything produced after they submitted their requests in July 2022.
The case number is 15-24-10-CV.
Teacher’s Use of Force
The final case heard involves an administrative appeal of a decision by Education Commissioner Mike Morath that Crowley ISD should not have fired teacher Carl Stoneham for a physical altercation with a student.
After the unknown student entered his classroom during a passing period and refused Stoneham’s request to show his student ID. Stoneham blocked the student from leaving and the two tussled with Stoneham ending up pinning the student to the ground.
The school board fired Stoneham after an independent hearing examiner determined that the teacher’s initial conduct was reasonable but became unreasonable when he physically pinned the student to the floor for approximately two minutes. The hearing examiner concluded that Stoneham’s continued restraint of the student provided good cause for terminating Stoneham’s employment.
Morath reversed that decision, disagreeing that Stoneham’s restraint was unreasonable.
David J. Campbell, who represents the school district, told the court that “from beginning to end, Mr. Stoneham made bad decisions.”
“If a student doesn’t show their ID, it doesn’t mean you can tackle him in the hall,” said Campbell, a shareholder at O’Hanlon, Demerath & Castillo.
Referencing school violence, Brister asked why it would be unreasonable for a teacher to let a person go who refused to identify themselves.
“At that point the student posed no danger,” said Campbell because other school staff had gathered in the hallway.
Stoneham’s lawyer, Giana Ortiz, said it would be unfair for the justices to second guess the commissioner’s decision, pointing to a fatal stabbing that occurred this week at a Manor ISD high school.
“It would send an unbelievably powerful message to teachers that they should not get involved,” said Ortiz of The Ortiz Law Firm in Arlington.
Ortiz shared her argument time with James Z. Brazell, an assistant attorney general who represents Morath.
Justice Farris asked why the court should set aside the hearing examiner’s findings.
The lawyers responded that state law authorizes the commissioner to substitute his judgment if the district’s decision to terminate a teacher was arbitrary and capricious.
The case number is 15-24-51-CV.