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No. 02-02-016-CV, 7/3/2003. Civil Litigation Click here for the full text of this decision FACTS:Relator Matthew T. Hinterlong seeks mandamus relief from a trial court order denying his motion to compel discovery of the identity of, and other information relating to, a student who provided a crime stoppers tip to Arlington Martin High School (AMHS). The tip resulted in Hinterlong’s expulsion and placement in alternative school. In two issues, Hinterlong contends that the trial court abused its discretion in ruling the information privileged and not subject to discovery because: 1. AMHS’s crime stoppers program does not qualify as a crime stoppers organization under �414.001(2) of the Texas Government Code; 2. even assuming AMHS’s program qualifies as a crime stoppers organization, the communication allegedly made by the student was not a crime stoppers tip; and 3. the crime stoppers privilege set forth in �414.008 of the Texas Government Code is unconstitutional as applied in this case because it violates the open courts provision of the Texas Constitution. HOLDINGPetition for writ of mandamus conditionally granted. The court addresses whether the crime stoppers privilege restricts Hinterlong’s common-law causes of action. Clearly it does. The privilege operates as an almost complete bar to Hinterlong’s suit against the tipster and the person or persons who planted the Ozarka water bottle. The privilege likewise restricts Hinterlong’s claims against Clements because the identity of the tipster and information provided by the tipster may be critical to Hinterlong’s tort claims. Having determined that the crime stoppers privilege restricts Hinterlong’s cognizable common-law claims, the court next determines whether the abrogation of those claims is arbitrary or unreasonable when balanced against the Legislature’s actual purpose in enacting the statute. In making this determination, the court considers the general purpose of the statute and the extent to which the litigant’s right to redress is affected. The extent of the abrogation of Hinterlong’s right to redress is almost total. He cannot prosecute his common law causes against Clements, the tipster, or the person or persons who planted the Ozarka water bottle for “injury done him, in his . . . person or reputation” without learning the tipster’s identity. His inability to obtain discovery concerning how the tipster obtained the information provided to Clements severely impedes Hinterlong’s prosecution of his common law causes of action against these parties. The open courts provision test balances the Legislature’s actual purpose in enacting a law against that law’s interference with the individual’s right of access to the courts. In addressing a “facial” or “per se” open courts constitutional challenge to legislative action restricting common-law remedies for well-established common-law causes of action for injuries to one’s lands, goods, person or reputation, courts examine whether the legislature reasonably substituted another remedy or whether legislative restriction of the common law causes of action was a reasonable exercise of the police power in the interest of the general welfare. In addressing an “as-applied” open courts constitutional challenge to legislative action restricting common law remedies for well established common law causes of action for injury to one’s lands, goods, person or reputation, courts also examine whether the restriction is unreasonable or arbitrary when balanced against the legislative purpose for the statute, including a purpose of promoting general public welfare through the exercise of police power. That is, a statutory restriction of a well established common law cause of action may be facially or per se constitutional under the Texas Constitution’s open courts provision, but nonetheless violate the open courts provision of the Texas Constitution as applied to a particular category of people if the restriction of the common law cause of action is unreasonable when balanced against the purpose of the statute. Here, the Legislature has substituted no remedy in place of its abrogation of Hinterlong’s common law causes of action for malicious prosecution, defamation or negligence. Thus, the statutory abrogation of these common-law causes of action is not rendered reasonable based on a substitute remedy. To determine a statute’s purpose, the court considers the “object sought to be obtained” by the statute. The purpose served by the crime stoppers statute is to foster the detection of crime and to encourage persons to report information about criminal acts. Crime stoppers tips are to help law enforcement agencies detect and combat crime by increasing the flow of information to and between law enforcement agencies. Additionally, according to the statute, reward money is to be paid to those persons who report criminal activity. There is no question that the crime stoppers statute here has a valid basis and purpose, i.e., is a valid exercise of police power for general public welfare, that being to promote, and to encourage through the payment of reward money, legitimate tips concerning criminal activity. The question then, pursuant to Hinterlong’s as-applied open courts challenge, is whether the application of the crime stopper statutory privilege to restrict common-law causes of action brought by a student who has been exonerated of criminal charges and who has pleaded and offered prima facie proof of a right of redress for the wrongful conduct of another, is arbitrary or unreasonable when balanced against the legitimate purpose of the statute. The court holds that it is. In Hinterlong’s civil suit, application of the statutory crime stoppers privilege as a complete bar to disclosure of AMHS’s crime stoppers records, including the tipster’s identity, and the resultant restriction of Hinterlong’s common-law causes of action does not promote the purpose of the crime stoppers statute. In fact, this application of the statute in the context of AMHS’s zero tolerance policy actually thwarts the purpose of the crime stoppers statute. Such an application, by totally insulating the tipster, promotes reports of set up criminal activity involving “planted” evidence on high school campuses. A student could place a thimble full of alcohol in another student’s locker, car, notebook, purse or backpack, and, as explained by Clark, cause the student’s automatic expulsion pursuant to the zero tolerance policy. A tipster, without risking disclosure of his or her identity or any accountability in a civil lawsuit, could place alcohol in another student’s possession before school, at lunch or during a break, and then make a crime stoppers tip, ensuring the student’s expulsion and ineligibility for a football play-off game, a track meet, a regional tennis tournament, or cheerleader tryouts. The purpose of the crime stoppers statute is to promote legitimate reports of criminal activities, not to shield a student who for personal gain or retaliatory motives makes a setup tip to achieve expulsion of a rival or a competitor. In fact, outside the ambit of the public school zero tolerance policy, nonlegitimate crime stoppers tips are not acted upon. Police must independently corroborate information provided by an anonymous tipster, including a crime stoppers tipster, in order to justify even an investigative detention based on the tip. Consequently, nonlegitimate or setup crime stoppers tips that cannot be corroborated are not acted upon and are not rewarded. Thus, in cases involving crime stoppers tips occurring outside the unique context of public schools’ zero tolerance setting, the issue of civil damages for illegitimate or set up tips is unlikely ever to arise. Finally, the court notes that when the Legislature enacted the crime stoppers statute in 1987, zero tolerance policies did not exist at the public schools. Thus, the Legislature could not have anticipated the juxtaposition between the statutory crime stoppers privilege and schools’ zero tolerance policies, resulting in the opportunity for abuse of the crime stoppers tip program that allegedly occurred here. The statute was certainly not intended for use as a shield from accountability for set up tips made for personal or retaliatory reasons. The court holds that the purpose of the crime stoppers privilege does not justify, in the limited public school zero tolerance setting, the resultant almost total abrogation of Hinterlong’s common-law causes of action against the tipster and the person or persons who planted the Ozarka water bottle or the partial abrogation of Hinterlong’s common-law causes of action against Clements. Hinterlong met his burden of establishing that the application of the crime stoppers privilege to him in this case violates the Texas Constitution’s open courts provision by restricting his recognized common law causes of action against Clements, the tipster, and the person or persons who planted the Ozarka water bottle in a way that is arbitrary or unreasonable when balanced against the legislative purpose in enacting the statute. Thus, the court holds that the trial court abused its discretion by refusing to declare the absolute crime stoppers privilege set forth in �414.008 of the Texas Government Code unconstitutional as applied to Hinterlong in the present case. In summary, the court concludes that the crime stoppers privilege, as applied to Hinterlong under the facts of this case, unreasonably and arbitrarily restricts his common-law claims when those claims are balanced against the purpose of the statute. Accordingly, it holds that the statute, as applied in this case, violates the open courts provision of the Texas Constitution. The court conditionally grants Hinterlong’s petition for writ of mandamus and directs the trial court to vacate its Aug. 24, 2001, order denying Hinterlong’s motion to compel the production of evidence regarding the student informant’s identity and other relevant information surrounding the crime stoppers tip. It orders the trial court to conduct the rule 508(c)(2) in-camera inspection, outlined above, within thirty (30) days of the date of this opinion and is confident the trial court will vacate its order and will conduct the necessary rule 508 procedures as it has directed. The court’s writ will issue only if the trial court refuses to do so. OPINION:Walker, J.; Holman, Richards and Walker, JJ.

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