Page 38 - November December 2020 TPA Journal

to exit their vehicle and fire nineteen rounds into their actions were not pre-meditated.
the victims’ occupied Mercedes. The district court did not err. The judgments of
conviction and sentence are Affirmed.
Defendants have shown, at most, that the shooters U.S. v. Burden and Scott, No. 19-30394, 5th Cir.
might not have held a “deliberate, considered, July 02, 2020.
murder plot” specifically to kill the persons who
were occupying the Mercedes. In that sense, it SEARCH WARRANTS ARE PUBLIC
might have been “convenient” that the Mercedes RECORD: A.G. OPINION
and its occupants happened to stop behind the
shooters’ vehicle. It might be true that the shooters
cared not for the identity of the Mercedes’s occu- We note at the outset that the context for your
pants; perhaps they would have opened fire on question involves search warrants and related doc-
anyone unlucky enough to have found themselves uments in the possession of a district clerk. A dis-
behind the shooters’ SUV. And, had no such per- trict clerk holds court case records on behalf of the
son arrived, it is perfectly plausible that the shoot- courts served by the clerk. See TEX. GOV’T
ers would not have attempted to kill anyone at all. CODE § 51.303(b) (directing the clerk, among
But all that is entirely irrelevant. “Perhaps the best other duties, to record “the acts and proceedings of
that can be said of deliberation is that it requires a the court” and the “executions issued and the
‘cool mind’ that is capable of reflection, and of returns on the executions”); see also TEX. CODE
premeditation that it requires that the one with the CRIM. PROC. art. 2.21(a) (providing that in a
‘cool mind’ did, in fact, reflect, at least for a short criminal proceeding the clerk of the district court
period of time before his act of attempted] shall “receive and file all papers” and “issue all
killing.”15That “period of time ‘does not [neces- process” of the court, among other responsibili-
sarily] require the lapse of days or hours[,]or even ties). As such, the district clerk holds a search war-
minutes.’” rant, warrant return, and related inventory list on
behalf of the judiciary. The Public Information
The record supports the finding that the shooters Act, about which you primarily ask, expressly
coolly reflected on their actions before taking excludes the judiciary. See TEX. GOV’T CODE
them. As the defendants themselves note, there is §§ 552.002(a)(1) (defining the public information
no evidence that the shooters and the victims had to which it applies as that which is “written, pro-
ever previously interacted or known of the other’s duced, collected, assembled, or maintained under
existence; in other words, nothing suggests the a law or ordinance or in connection with the trans-
shooters were in a state of provocation that might action of official business . . . by a governmental
have denied them the ability to reflect on their body” (emphasis added)), 552.003(1)(B)(i) (pro-
actions. Neither is there any evidence that the viding that for purposes of the Act, a governmen-
defendants are or were fundamentally incapable of tal body “does not include . . . the judiciary”); see
such reflection. Even if there were no grand plot to also Tex. Att’y Gen. ORD-671 (2001) at 2–3 (not-
murder specifically the persons occupying the ing the information a district clerk collects pur-
Mercedes, there was ample opportunity to appre- suant to Government Code section 51.303(b) is
ciate the situation while readying and wielding the “collected, assembled, or maintained for the judi-
guns, donning the masks, exiting the SUV, walk- ciary and is not public information under the
ing to the Mercedes, and opening fire repeatedly. Act”). The Public Information Act states that
That time was enough, and, again, that they “wore “[a]ccess to information collected, assembled, or
. . . mask[s] . . .greatly undermines” the notion that maintained by or for the judiciary is governed by

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