MARFA — For over a decade several haphazardly-stuffed folders full of records concerning Presidio County roads languished in a filing cabinet inside the old jail. Now, those folders are the center of a conflict between The Big Bend Sentinel and local officials.
The Sentinel discovered the records but was not allowed to immediately review them because they were located in a filing cabinet marked “county judge,” and the county clerk made a decision to acquire the permission of County Judge Joe Portillo first. Portillo ultimately sought advice of legal counsel for the county, and that counsel –– Jim Allison, with the Texas Association of Counties –– withheld the documents.
The file folders contain information gathered by commissioners and other officials after the passage of HB 1117, a law that took effect in 2003 that required counties to adopt official county road maps. The law required that counties follow a long process, soliciting public input and holding meetings to “clarify” which roads were private and did not require county maintenance.
Presidio County tackled the county map project between 2006 and 2008, the date of the records requested by The Sentinel.
This information is pertinent to a lawsuit pending between two plaintiffs — Maria Maurial of Austin and Jeff Fort III of the Pinto Canyon Ranch — who insist that the public road leading to their properties has been illegally gated off. Defendants Mary Baxter and Neil Chavigny of Marfa insist that the county road in question ends at their gate.
In March of 2023, Baxter and Chavigny roped Presidio County into the lawsuit, putting the burden on the county to prove that the road did not, in fact, end at their gate.
Before March 2023, Rod Ponton — who also serves as Presidio County attorney — had been privately representing Maurial and Fort. He was removed from the case by court order when the county was named co-defendant, and the county tapped Allison to represent them in court. A few weeks ago, Ponton told The Sentinel that representing Maurial and Fort was not a conflict of interest because he said he was not pursuing work with a private client that was adverse to the county’s position on the issue of whether Baxter’s road was public or not.
The county denied releasing the records to The Sentinel on the grounds that they were covered by an exemption to the Texas Public Information Act (TPIA) that allows parties to withhold public records if they are a part of “pending litigation.” The Sentinel’s request has since been relayed to the state attorney general’s office, which will decide if the documents can be withheld.
All of the parties involved in the suit declined to speak on the record until the attorney general’s decision on the documents is made, and the judge in the Baxter case also issued a gag order disallowing any of the parties to speak publicly or to the media about the case.
The judge in the case issued a summary judgment in favor of Maurial and Fort –– declaring the road public –– in December, but Baxter still could appeal that decision. It’s unknown exactly what the disputed folders contain, but if there are indeed documents related to specifically designating county versus private roads, those documents could provide more evidence to be considered in litigation.
Compared to recent high-profile TPIA battles — most notably, over the Texas Department of Safety’s delay in releasing records relating to the Uvalde shooting — these folders left moldering in a basement aren’t exactly top priority for the AG’s office. However, by law, the AG has 45 days to respond with a ruling on whether any of the records can be withheld or if they should be released.
Bill Aleshire, an attorney who serves the Freedom of Information Foundation of Texas, thought that The Sentinel’s case was symptomatic of a larger problem with the way the state handles public information.
Aleshire explained that the “litigation exemption” was originally drafted into law to prevent attorneys from using the TPIA to cut corners on the process of finding evidence for a case that should be handled through formal discovery. Since then, that doesn’t appear to be the way attorneys have made use of the TPIA.
The “litigation exemption” doesn’t just pertain to records pertinent to current litigation. Entities can also withhold information they think might eventually be used in a lawsuit. “Even if the suit never happens, they’re allowed to withhold those records,” he said. “Why in the world — if information would otherwise be subject to public disclosure — does it make any difference at all?”
Over the years, Aleshire has been a staunch opponent of this provision of the TPIA and has argued that it should be repealed. “Serious screw-ups by our government are exposed in litigation,” he said. “That is exactly the time that you want the public to have more information, not less.”