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Click here for the full text of this decision FACTS:Carolyn Colomb brought a premises liability action against Westwood Affiliates LLC. Carolyn’s son Lionel McCoy was shot and killed outside a retail establishment that Westwood owned. The Houston Police Department (HPD) investigated the incident but was unable to identify Lionel’s assailant. Westwood contends that HPD’s investigatory materials are critical to Westwood’s defense in this civil suit. Westwood served HPD with a subpoena requesting “any and all records, reports, correspondence, witness statements, investigation notes, offense reports, and any and all photographs pertaining to [the incident].” HPD objected on the basis that the information is privileged pursuant to the Texas Supreme Court’s 1987 decision Hobson v. Moore and the Texas Public Information Act as part of an ongoing murder investigation, and dissemination of the information would compromise their investigation. On May 3, 2006, the trial court denied Westwood’s motion to compel production and issued a protective order, stating that “the records, documents and physical evidence related to the Houston Police Department’s investigation of the murder of Lionel Dwayne McCoy [shall] be protected from the disclosure, release and production requested pursuant to the subpoena issued by Defendant Westwood Affiliates, L.L.C.” Westwood seeks mandamus relief from this order. HOLDING:The court denied the petition for a writ of mandamus. The need for confidentiality in law enforcement activities is recognized in statutory law, the court stated. Section 3(a)(8) of the Texas Open Records Act, Texas Revised Civil Statutes Art. 6252-17a, exempts the following from disclosure: records of law enforcement agencies and prosecutors that deal with the detection, investigation and prosecution of crime; and the internal records and notations of such law enforcement agencies and prosecutors maintained for internal use in matters relating to law enforcement and prosecution. The 1st Court of Appeals court noted the applicability of this privilege in civil litigation for law enforcement investigation, citing Hobson v. Moore, in which the Texas Supreme Court recognized an independent law-enforcement privilege in civil litigation. Westwood urged the court to disregard Hobson, arguing that Texas Rule of Evidence 501 prohibits the recognition of any privilege except those created by the Constitution, by statute, by the Rules of Evidence or by other rules prescribed pursuant to statutory authority. Nevertheless, the court stated that a plain reading of Hobson indicated that the Texas Supreme Court has recognized a law-enforcement privilege in civil litigation. Thus, the court stated that is was duty bound to follow the Texas Supreme Court’s pronouncements. Accordingly, the court held that the trial court did not abuse its discretion in denying Westwood’s motion to compel production and issuing a protective order. OPINION:Hanks, J.; Taft, Keyes and Hanks, J.J.

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