Saturday, August 28, 2010

Law - Texas Government Is The Servant Of The People


Look out, kid, they keep it all hid...Bob Dylan, "Subterranean Homesick Blues," ca. 1965

Consider the preamble of the Texas Open Records Act.

Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of
the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy. (b) This chapter shall be liberally construed in favor of granting a request for information.


Waco -- There is a fundamental schism between the basic assumption of the law and those who have custody of the public record.

A highly valued associate of The Legendary came close to being accused of a serious crime by a hypervigilant Deputy District Clerk in the McLennan County Courthouse one day this past week.

R.S. Gates, a veteran narcotics detective, jailer and crime scene investigator, was busy accessing public records at a bank of computer terminals in a third floor corridor of the Courthouse Annex building just outside the door of the clerk's office. These computer terminals are intended for public use and are there to help people find and access legal instruments filed in the system and are therefore part
of the public record.

District Clerk Karen Matkin approached Mr. Gates and said a staff member had observed him loading computer files onto his laptop computer with an external "thumb drive."

Mr. Gates assured Ms. Matkin that the allegation was not true, that he was merely looking for corroborative information to help him locate the instruments which he
sought.

They visited in her office a few minutes later and he assured her that he is aware that there are various grades of an offense under the Texas Penal Code that declares it an offense to seek unauthorized access to an electronic network. In cases where it is proven that the actor benefited by $200,000 or more, it is a grade "A" felony to
do so.

The law is clearly stated at Section 33.02 of the Texas Penal Code.

Sec. 33.02. BREACH OF COMPUTER SECURITY. (a) A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner...

The fundamental question is, then, just who owns those records?

I think we all know the answer to that one. After all, the Texas Open Records law clearly refers to all officials so charged as the legal "custodian of records."

Happily, they were able to straighten out a misunderstanding, but the truth is that a very basic violation of a much more ancient and important law took place there.



Moses, the prophet and law giver, the only human being ever documented to have actually seen the face of God, is credited with handing down ten commandents that deal not with God's guidance as to how people should deal with Yahweh, but how they should treat each other.

High on the list is the commandment that "Thou shalt not bear false witness..."

Most of what is found in any codification of criminal law and civil regulation is predicated on the basic assumption that people will be decent in their behavior toward one another, hence all the various degrees of the laws against killing, stealing, lying, and the like.

The Legendary has had negative experiences with the system of looking up public documents in the Clerk's office.

For one thing, the system is expensive. I was charged $8.06 simply to learn the cause number of a criminal action against an individual charged with 8 counts of forcible rape of a little girl younger than 14 and a single count of continuous sexual abuse of the same person.

Without that cause number, the number of the criminal or civil complaint entered at the top of all pleadings, it is impossible to go any further in the system. And yet, who is the custodian of records of those cause numbers?

Having given my credit card number by phone, I was unable to obtain any further information when I showed up in person because the deputy clerk steadily ignored me as I stood at the counter attempting to get the information for which I had paid.

For the sum of $8.06, I was able to learn, exactly, nothing.

Stings.

Makes a certain impression on a boy of Scots-Irish extraction.

At the McLennan County Sheriff's Department, records clerks charge the sum of $10 per minute if information technologists are required to do electronic searches for information that is, ostensibly, part of the public record.

Now, it is impossible to write with any intelligence or clarity about a legal action in the absence of basic information about the allegations of complaint, of jurisdiction, and the actual pleadings of defense and prosecution counsel before the Court.

What's more, some members of the public seem to be more equal than others. Brand X grub street journalists such as The Legendary and associates are considered to not be full fledged members of the media, as are those who represent more main stream publishers and broadcasters.

The sad truth is this. Alternative means of communication by internet broadcast over satellite transmission, cable or telephone connections are fast outstripping more traditional means of publishing information. Anyone can carry a broadcasting station around in a briefcase, and people do just that.

I am reminded of an observation of Dr. Marshal McLuhan in his seminal work, "Understanding Media." He said that in the Soviet Union, every public official had a telephone on the desk. The truth was much more complex than initial appearances would indicate, however. Unless that public official wished to have his phone number known, it was impossible to obtain it and use it to establish communications, because at the time there were no phone directories published in that prison society, nor were there
directory assistance operators!

Therefore, people had no telephonic access to their public officials.

Interesting - dreary, dull, depressing, humdrum and a total humbug - but, nevertheless, it is all very interesting.

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