No. 2014-W-0128In re

IN DISTRICT COURT

187TH JUDICIAL DISTRICT

BATTLEGROUND TEXAS

BEXAR COUNTY, TEXASREVIEW OF COMPLANTS ON USING

VOTER REGISTRATION INFORMATION1. The Film That Starts the Controversy. Project Veritas has posted on You Tube an undated film that starts the complaint in this case:

http://www.youtube.com/watch?v=gXKwQI_0kDI

The film starts with a view of Jennifer Flores, an organizer

for Batttleground Texas. An announcer asserts they may have become a new ACORN who use illegal methods to gain voter information.

Announcer: According to the Secretary of State, it is unlawful to--The screen then shows Texas Elections Code 13.004 that reads and is highlighted in yellow on the screen as follows: 13.004. RECORDING AND DISCLOSURE OF CERTAIN INFORMATION BY REGISTRAR.

(a) The registrar may not transcribe, copy, or otherwise record a phone number furnished on a registration application.(b) The registrar may transcribe, copy, or otherwise record a social security number furnished on a registration application only in maintaining the accuracy of the registration records.

(c) the following information furnished on a registration application is confidential and does not constitute public information for purposes of Chapter 552, Government Code:

(1) a social security number;

(2) a Texas drivers license number;

(3) a number of a personal identification card issued by the Department of Public Safety;

(4) an indication that an application is interested in working as an

election judge; or

At this point, the banner has been inserted in the screen that reflects:

(a) The registrar may not transcribe, copy, or otherwise record a phone number furnished on a registration application.The screen resumes the text of (d)(1) through 5 but without color highlight.While this screen is displayed, the announcer states that, according to the Secretary of State it is unlawful to transcribe, copy, or otherwise a phone number off registration cards, which is something Jennifer Longoria reveals that Battleground Texas is doing multiple times. Longoria reveals a series ofdata bases called the First data base is called My Voters, which is purchased from the Secretary of State.Longoria states in an outdoors registration location, My Voters is a list of every single registered voter in Texas, which we have purchased from the Secretary of State and then downloaded into our data base. So this is everybody.

Announcer: The second tab of the data base is the voters that Battleground has personally registered. The announcer states that Longoria reveals they have taken these number off of the forms.

Longoria states, we keep their name, number, andname, address, and phone number, just so we can get back to them. Another female off screen asks, so that is from the voter registration forms? Longoria admits and says that three weeks before the election they call the voter.The next scene is unusual. It purports to show a person from Battleground

Texas calling a voter on behalf of (Texas gubernatorial candidate) Wendy

Davis, whose photo is then displayed. However, while this caller is on the

screen, the screen also has a banner that suggests the caller is a PV [Project Veritas] Investigator While the female depicted has a voice over indicating that she is making a call, the filmed callers lips never move.

The film clip then jumps to a scene within an office and Ms. Longoria, who states that the people we registered today, we will be calling in like a yearand saying, heh, I registered you to vote, and its time to go. An off-scene voice asks, and we get this number from the cards, and Longoria on screen says, yep, cause its public information. [It is unclear what card is referred to as no card is seen on camera, and the location is inside an

office versus outside during the voter registration scene.][At this point, another female is shown next to Ms. Longoria, but that persons lips never move.]The announcer states that, while Longoria states its all public information,

the Secretary of State calls this information confidential by law. Private cell phone numbers are to be redacted. The only thing that can be given to anyone who requests the voter information would be the name and address.The film then switches back to a voter registration scene which has children

on a slide and persons signing a document on a clipboard. Ms. Longoria,

wearing sunglasses, states, Once we register people to vote tonight, we will all turn in our cards, and our data person will enter not all the information, but the name, address, and phone number and then whoever registered them into a data base because that information will be pulled back up again once elections come up and we can every one here and say, Hi, I registered you to vote [the voice then is cut off].

It should be noted that the film shows supposedly potential voters

mulling around paper on a clip board. However, the piece of paper fills out

the full horizontal width of the clipboard, whereas the official Voter Registration Application is but 6 inches wide by 11 inches deep. The film does not show any person completing or signing such a form. The film later at 3:59 shows an actual official voter registration application on a clipboardatop of a wider piece of paper.

The film then jumps to a totally unrelated event involving the resignation of an official in Enroll America. A man is shown with a news crawler that says Clarence Landry, Enroll America Texas, who differs from the young male shown who had resigned. He states that Enroll American Texas works and networks with Battleground Texas.

The announcer then asserts that Wendy Davis is using persons private datamaybe even health data. The announcer is finally shown as James OKeefe, who pitches for funds for Project Veritas to fight voter fraud.

At no point is there a depiction in the film of anyones information

being placed on a voter application form, being copied from the form, or being photocopied from the form.

2. Complaints Filed. In response to the video, complaints were lodged

with the Secretary of State by three persons:

( Steve Dallas of San Antonio

( Douglas Saegesser of Fort Worth

( Kathryn Dulansk

The Secretary of States office forwarded the complaints to the

Attorney General of Texas, Greg Abbott. He disqualified himself from acting on the case, as he is running for election as Governor of Texas. The Texas Attorney Generals office forward the complaint to the District Attorney of Bexar County, where the alleged conduct occurred. District Attorney Susan Reed disqualified her office from acting on the complaint, as she is running for re-election. She forwarded the complaint to the then

presiding criminal district court judge Lori Valenzuela. She disqualified herself from the complaint, since she is running for re-election. She in turn passed the complaint to the alternate presiding district court judge, Raymond Angelini. Judge Angelini in turn appointed John M. Economidy and

and Christine Del Prado as district attorneys pro tem, first and second chairrespectively, to serve as special prosecutors on the complaint under the authority of TEX. CODE CRIM. P. art. 2.07.3. Texas Election Code 13.004. This statute has some application to the three complaints.

a. Designated Confidential Information. Texas Election Code 13.004(c) identifies certain information on a voter registration application as confidential and not public information. Subsection (c) makes confidential only the following information:

(1) A social security number.

(2) A Texas drivers license number.

(3) A number of a personal identification card issued by the Department of Public Safety.

(4) An indication that an applicant is interested in working as an

election judge.

(5) Under specified conditions, the residence of an applicant who

is a state or federal judge or that persons spouse.

Subsection (c) does not declare as confidential a voter applications

address or phone number. Indeed, local county election offices legally sell

voter registration lists that contain a voters address.

b. Restriction on Posting Certain Information on a Website.

Texas Election Code 13.004(d) states that the voter registrar or other

county official who has access to information furnished on a registration

application may not post the following information on a website:

(1) a telephone number;

(2) a social security number:

(3) a drivers license number or a number of a personal identification

card;

(4) a date of birth; or

(5) the residence address of a voter who is a state or federal judge

or spouse of such a judge.

However, no complaint is made that a voter applicants phone number or address is posted on a website. It should be remembered that the announcer in the Veritas film carefully spoke only as to a cell phone number, not a hard line phone number. Nothing in the film or anything stated by Ms. Longoria suggests there was a differentiation in the collection of phone numbers in the data base as being either cell phone numbers or

hard line phone numbers.

c. Texas Election Code 13.004(a). This subsection states merely:

The registrar may not transcribe, copy, or otherwise record

a telephone number furnished on a registration application.

This subsection is relevant for several points: First, the Elections Code distinguishes between the registrar and a volunteer deputy registrar, as is shown by Texas Election Code 13.031, which permits the registrar to appoint volunteer deputy registrars. Additionally, Texas Election Code 12.001 states that the registrar for each county is generally the county tax

assessor-collector, unless the position of county elections administrator is created or the county clerk is designated as the voter registrar. This provision refers to that official, not any volunteer. Under Texas Administrative Code 81.5, a volunteer deputy registrar like Ms. Longoria, does not have the same authority as the registrar. The Texas Attorney General has clearly pointed out that when the law applies to a volunteer deputy registrar, the law clearly uses the term volunteer deputy registrar.

TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010), reported at 2010 WL 2256831 (Tex. A.G.). Ms. Longoria, who is complained of in the three complaints, is only a volunteer deputy registrar, not the registrar. Second, no provision of the Elections Code makes it a criminal offense to violate Texas Election Code 13.004(a).

4. Texas Attorney General Opinions. The current Texas Attorney General Greg Abbott has rendered three formal opinions that are relevant to this case: TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010), reported at 2010 WL 2256831(Tex. A.G.), TEX. ATTY. GEN. OP. OR2010-17112 (November 10, 2010), reported at 2010 WL 5107206 (Tex. A. G.), and TEX. ATTY. GEN. OP. OR2011-06976 (May 18, 2011), reported at 2011 WL 1911618 (Tex. A.G.). All three opinions involve open records.

a. TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010).

In this opinion, the Dallas County Elections Administrator received a request for every record of an alleged voter making an application for a mail ballot. including the original voter registration cards, etc. The matter was forwarded to the Texas Attorney General for a formal opinion. The opinion

held that that certain voter information was declared confidential by Texas Election Code 13.004(c)[social security number, Texas drivers license number, Department of Public Safety Identification card, an indication that a person is working as an election judge, the residence address of a federal or state judge and that persons spouse] and must be withheld. However, with regard to phone numbers, the AG opined:

for information to be confidential under section 522.101,

the provision of law must explicitly require confidentiality.

A confidentiality requirement will not inferred from a

provisions structure. See Open Records Decision Nos.

658 at 4 (1998)(stating that statutory confidentiality

provision must be express and confidentiality requirement

will not be implied from statutory structure), 478 at 2 (1987)

stating that, as general rule, statutory confidentiality requires

express language making information confidential), 465,

at 4-5 (1987). Section 13.004(a) prohibits the county from

transcribing, copying, or recording a voters telephone number.

See id. 13.004(a). Section 13.004(d) prohibits the posting

of certain specified information on a website. See id.

13.004(d). Because neither section 13.004(a) or 13.004(d)

explicitly provides that information is confidential, we find

that the county may not withhold the phone numbers and

birth dates of voters from the requestor under Section 55.101

of the Government Code in conjunction with section 13004

of the Election Code. (Emphasis Added.)

b. TEX. ATTY. GEN. OP. OR2010-17112 (November 10, 2010).

This opinion involved a request under the Public Information Act for the Harris County Tax Assessor-Collector to provide all documents, other than

voter registration cards. The opinion stated that certain voter information was declared confidential by Texas Election Code 13.004(c)[social security number, Texas drivers license number, Department of Public Safety Identification card, an indication that a person is working as an election judge, the residence address of a federal or state judge and that persons spouse]. The attorney general noted that the Harris County TaxAssessor-Collector had redacted some voters phone numbers. The AG formally opined:

A confidentiality requirement will not be implied from

a provisions structure. See Open Records Decisions Nos.

658 at 4 (1998)(stating that statutory confidentiality provision

must be express and confidentiality requirement will not be

implied from statutory structure), 478 at 2 (1987)(stating as a

general rule, statutory confidentiality requires express language

making information confidential), 465 at 4-5 (1987).

Section 13.004(a) prohibits the county from transcribing,

copying, or recording the voters telephone number. See

Elec. Code 13.004(a). Section 13.004(d) prohibits the posting

of certain specified information on a website. See id. at

13.004(d). Because neither section 13.004(a) or 13.004(d)

explicitly provides that information is confidential, we find

the county may not withhold the telephone number of voters

from the requestor under section 552.101 of the Government

Code in conjunction with section 13.004 of the Election Code.

(Emphasis added.)

c. TEX. ATTY. GEN. OP. OR2011-06976 (May 18, 2011). In this opinion, the attorney general reached the same conclusion with the sameauthority to respond to a request for an opinion from the Harris County

Attorney, who had been consulted by the Harris County Tax Office

which had received a request for the Texas Voter Registration Application and Harris Counting Voting Records for two named individuals.5. Other Statutory Provisions. (a) Texas Government Code 39.02 proscribes abuse of official capacity and states:

(a) A public servant commits an offense if, with intent to obtain

a benefit or with intent to harm or defraud another, he

intentionally or knowingly:

(1) violates a law relating to the public servants office or

employment; or

(2) misuses government property, services, personnel or any

other thing of value belonging to the government that has

come into the public servants custody or possession by

virtue of the public servants office or employment.

Interestingly, the categorization of the offense as a Class A, B, or C

Misdemeanor or as a state jail felony or first, second, or third degree felony

depends upon the value of use of the thing misused.

This statute creates several major hurdles for a prosecutor

attempting to prove an offense the required standard of proof beyond a reasonable doubt. First, the prosecutor must prove that the offender

intentionally or knowingly violated a law related to the public servants office or employment. Second, there is no proof beyond reasonable doubt as to the particular value of use of a phone number. b. The Texas Election Code has few criminal provisions. Section 13.043 makes it a class C misdemeanor for a volunteer deputy registrar to fail to deliver applications. Section 13.044 makes it a class C misdemeanor to purport to act as a volunteer deputy registrar when the persons lacks an

effective appointment as a volunteer. These issues are not involved in these

three complaints.

6. Training Materials for Volunteer Deputy Registrar.

The Secretary of State and the local Bexar County Election Administrator

provide certain training materials to volunteer deputy registrars.

a. Volunteer Deputy Registrar HandbookBexar County.The Bexar County Voter Registration Department publishes a Volunteer

Deputy Registrar Handbook. It is dated January 24, 2013. It is unknown if Ms. Longoria received a copy of this handbook. Page 4 of the handbook discusses accepting voter registration applications and states:

Optional Information:

Gender and phone numbers are optional. These fields do not

have to be completed; however, it is very helpful to our office

to receive as much information about the applicants.

The Bexar County VDR handbook mentions no prohibition on copying

the voter registration card or any information from it.

b. Secretary of State PowerPoint Briefing for Volunteer Deputy Registrars. The Bexar County Elections Administrator has provided a 35-page PowerPoint slide presentation handout that is provided to train volunteer deputy registrars. It has no date but it states that the Texas Secretary of State is John Steen. There is no documentation to reflect that Ms. Longoria was trained on the PowerPoint presentation. This presentation makes the following references to phone numbers: (1) Prohibitions.

A volunteer deputy registrar may not:

(* * *

(* * *

( Make the applicant provide his/her telephone number;

or

( Keep a copy of the completed voter registration

application itself because this document contains

information that is confidential by law.

The DA Pro Tem notes that the actual voter registration application states

that the spot designated for a phone number has in small type in plain

type face the word (Optional). The attorney general opinions already

show that the phone number on the application is not confidential as a matter of law.

(2) Mention of Criminal Offense. Only once in this PowerPoint presentation is there mention of any criminal offense. A single page states:

FAILURE TO DELIVER AN APPLICATION IN A

TIMELY MANNER IS A CRIMINAL OFFENSE.

(Bold faced emphasis is in the presentation.) c. Secretary of State Letter from Internet Called Texas Volunteer Deputy Registrar Guide. The Bexar County Elections Supervisor has provided the District Attorneys Pro Tem a document that is described as Texas Secretary of State Nandita Berry Texas Volunteer Deputy Registrar Guide. It carries a date of 3/13/2014. According to the Texas Secretary of State webpage, Ms. Berry was sworn in as Secretary of State on January 7, 2014. Ms. Longoria received her certificate of appointment as a volunteer deputy registrar on June 20, 2013 and her commission expires on December 31, 2014. Thus, it is highly doubtful she was exposed to this Volunteer Deputy Registrar Guide. Mr. James OKeefe, the president of Project Veritas, had faxed a letter to the Bexar County Voter Registration Coordinator on February 12, 2014. As the producer of the film placed on You Tube, Mr. OKeefe sought Ms. Longorias application to be a volunteer deputy registrar. The date of Ms. Longorias appointment on June 20, 2013 strongly suggests that she was not exposed to the eight-page March 13, 2014 guide. This is important as any prosecution would have to prove beyond reasonable doubt that Ms. Longoria intentionally or knowingly violated a law related to the public servants office or employment under Texas Government Code 39.02. Page 4 of the guide states:

What you cannot do:

* * *

* * *

Make the applicant provide his/her telephone number.

Thus, of course, providing this information on the voter registration application is optional.

Page 5 on Frequently Asked Questions posits:

Q. May I photocopy a completed application before

turning it in to the counter voter registrar?

A. No. Section 13.004(c-1) of the Code requires the county

voter registrar to ensure that certain information, such

as the telephone number, on a registration application

is redacted from photocopies of voter registration

applications from her office. In our opinion, this means

that a photocopy of an application must come directly

from the county voter registrars office, so that he or she

may ensure that the required information has been

blackened out or otherwise obscured. With that said,

we believe that a volunteer deputy registrar may

photocopy the receipt. You may also copy the relevant information from the application in writing just as you would be able to do if you went to the registrars office and pulled a copy of the original application.

(Emphasis supplied by District Attorney Pro Tem.)

Interestingly, page 7 of the letter suggests that the volunteer deputy registrar retain the receipt books for 22 months following the election.

7. Federal Litigation involving Volunteer Deputy Registrar.

a. Filing of Litigation and Granting of Preliminary Injunction. Voting for America, Inc., Brad Richey, Penelope McFadden, and Project Vote, Inc. sued the Texas Secretary of State Hope Andrade for declaratory and injunctive relief against several provisions of Texass law regulating volunteer deputy registrars (VDR), Tex. Elec. Code Ann. 13.031 et seq. (VDR Law). Suit was filed in the Galveston Division of the Southern District of Texas and assigned to U.S. District Judge Gregg Costa. In May 2012, plaintiffs moved for a preliminary injunction. After a hearing, the district court granted the motion in part, enjoining enforcement of the following provisions of the VDR Law:

(1) Texas Election Code 13.031(d)(3) to the extent it

forbids non-Texas residents from serving as VDRs (the

Non-Resident Provision);

(2) Texas Election Code 13.038 to the extent it

prohibits VDRs appointed in one county from serving

in another county (the County Provision);

(3) Texas Election Code 13.008(a)(2) & (3) (the

Compensation Provision);

(4) Texas Election Code 13.038 to the extent it prohibits

VDRs from photocopying or scanning voter registration

applications submitted to the VDR but not yet delivered to

the county registrar (so long as no information deemed

confidential under 13.004 is included) (the Photocopying

Provision); and

(5) Texas Election Code 13.042 to the extent it prohibits

VDRs from sending completed voter registration

applications via United States mail (the Personal Delivery

Provision).

Voting for America., Inc. v. Andrade, 888 F.Supp.2d 816, 83943 (S.D. Tex. 2012) [Andrade I]. b. Stay Pending Appeal to Fifth Circuit. The Secretary of State

appealed and moved for a stay pending appeal, which the district court denied. A motions panel of this court granted the stay after hearing oral argument. The U.S. Supreme Court denied Appellees emergency application to vacate the stay pending appeal. Voting for America., Inc. v. Andrade, 133 S. Ct. 99 (2012) (Justice Sotomayor would have granted the application in part). On September 26, 2012, the motions panel issued an unpublished opinion explaining its reasons for granting the stay, along with a dissenting opinion. Voting for America., Inc. v. Andrade, 488 F. Appx 890 (5th Cir. 2012) [Andrade II].

c. Fifth Circuit Opinion Reverses. On October 4, 2013, the U.S. Court of Appeals reversed and remanded the case. Voting for America, Inc., v. Steen, 732 F.3d 382 (5th Cir. 2013). (1) The U.S. Court of Appeals for the Fifth Circuit first decided

if the subject matter could past the so-called Anderson-Burdick test.

Under the federalist structure of the United States, the Fifth Circuit said that the states are responsible for regulating the conduct of their elections. It is well recognized that state regulations will invariably affect the individuals right to vote and his right to associate with others for political ends. Anderson v. Celebrezze, 460 U.S. 780, 788, 180 S. Ct. 1564, 1570 (1983). Where a state election rule directly restricts or otherwise burdens an individuals First Amendment rights, courts apply a balancing test derived from two Supreme Court decisions, Anderson, supra, and Burdick v. Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992). Using the Anderson/Burdick balancing test, the court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. Anderson, 460 U.S. at 789, 103 S. Ct. at 1570. Next, the court must identify and evaluate the precise interest put forward by the State as justifications for the burden imposed by its rule. Id. In passing judgment, the court must weigh

the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. Burdick, 504 U.S. at 434, 112 S. Ct. at 2063 (quoting Anderson, 460 U.S. at 789, 103 S. Ct. at 1570). State rules that impose a severe burden on First Amendment rights must be narrowly drawn to advance a state interest of compelling importance. Burdick, 504 U.S. at 434, 112 S. Ct. 2063 (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S. Ct. 698 (1992)). Lesser burdens, however, trigger less exacting review, and a States important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364, 1370 (1997). Thus, concluded the Fifth Circuit, Anderson/Burdick provides no litmus-paper test that excuses courts reviewing election-related free expression cases from the hard judgments common in ordinary litigation. Anderson, 460 U.S. at 78990.

(2) Like the motions panel majority, the Fifth Circuit panel held it was unpersuaded that the smorgasbord of activities comprising voter registration drives involves expressive conduct or conduct so inextricably intertwined with speech as to require First Amendment scrutiny. Instead, the

Fifth Circuit analyzed the challenged Texas provisions separately because, as will be shown, discrete steps of the voter registration drive are in fact separable and are governed by different legal standards. See Planned Parenthood v. Suehs, 692 F.3d 343, 349 (5th Cir. 2012) (reviewing a temporary injunction that impermissibly grouped state regulations on promotion of abortion with the right to affiliate with other pro-choice supporters). Further, the Fifth Circuit concluded this mode of analysis is required by the Supreme Court. Anderson, 460 U.S. at 789-90. The Fifth Circuit held that the First Amendment was not implicated in the issue of copying information from the voter registration application. (3) Application Information Does Not Conflict with Federal Law. The plaintiffs also had urged that the prohibition on photocopying voter application forms violated the National Voter Registration Act (NVRA), 42 U.S.C. 1973gg et seq. The U.S. Court of Appeals for the Fifth Circuit disagreed. Voting for America, Inc., v. Steen, 732 F.3d 382 (5th Cir. 2013). The Fifth Circuit held that the NVRA mandates that [e]ach State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. 42 U.S.C. 1973gg-6(i)(1). The Photocopying Provision states that a VDR may distribute voter registration application forms throughout the county and receive registration applications submitted to the deputy in person. Tex. Elec. Code Ann. 38.038. As interpreted by Texas Secretary of State John Steen, who replaced Ms. Andrade, this provision limited volunteer deputy registrars conduct to collecting and delivering completed applications and implicitly precludes photocopying. Voting for America contended that because completed voter registration applications in the possession of VDRs are public records, the restriction against photocopying them violates the NVRA. The Fifth Circuit said that the argument of Voting for American disregarded a crucial distinction: the NVRA only pertains to records maintain[ed] by the State, while the Photocopying Provision only applies to voter registration applications in the hands of VDRs, before they are officially received or maintained by the State. For this reason, the Fifth Circuit held that the district court misplaced reliance on Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012), a case that specifically addressed the denial of access to voter registration applications in the governments long-term possession, rather than those in the hands of VDRs. The question, according to the Fifth Circuit, was not whether such applications will be made available for photocopying but how. Thus, the Fifth Circuit disagreed with the district courts reasoning that the applications received and delivered by VDRs are within the constructive possession of the state. For one thing, the Fifth Circuit said, this conclusion is not supported by any statutory text and is contrary to state law prohibiting VDRs from maintaining the applications. Tex. Elec. Code Ann. 13.038 (deputizing VDRs to receive and deliver voter registration applications, not to maintain them for the state); 13.042(b) (requiring VDRs to deliver the voter registration applications to the county within five days). Moreover, allowing VDRs indiscriminately to photocopy registration applications places at risk the private information, e.g., social security numbers, they contain, because Steen and counties have limited means to enforce privacy protections against temporary volunteers. Because the NVRA and Texas law do not conflict, the Fifth Circuit held that Voting for American could not prevail on the preemption claim. The Court of Appeals thus reversed the injunction and remanded the case. d. Impact of Fifth Circuit Opinion. It is noted that the Fifth Circuit

opinion leaves intact the attorney general conclusion that phone numbers

on a voter registration application are not confidential.

8. Conclusions.

a. The Veritas video was little more than a canard and political disinformation. The video was particularly unprofessional when it suggested that the actions of Battleground Texas were advocated by a Texas gubernatorial candidate and that the actions of a single volunteer deputy registrar may even involve private health data, which is not involved inthe voter registration process.

b. Texas Election Code 13.004(a) states, The registrar may not transcribe, copy, or otherwise record a telephone number furnished on a registration application. However, that statutory provision applies only to the official county registrar, not to a volunteer deputy registrar. This interpretation is confirmed by formal legal opinions of the present attorney general of Texas. Additionally, three recent attorney general opinions hold that ones telephone number on a voter registration application is not confidential information.

c. Texas Government Code 39.02 proscribes abuse of official capacity and states:

(a) A public servant commits an offense if, with intent to obtain

a benefit or with intent to harm or defraud another, he

intentionally or knowingly:

(1) violates a law relating to the public servants office or

employment; or

(2) misuses government property, services, personnel or any

other thing of value belonging to the government that has

come into the public servants custody or possession by

virtue of the public servants office or employment.

This provision is not applicable. The volunteer deputy registrar

is not a public servant within the meaning of Texas statutes. Assuming arguendo that she was a public servant, it would be impossible to prove a

39.02 violation by proof beyond reasonable doubt. Attorney General formal opinions hold that a voter applicants phone number is not confidential. Training materials for the volunteer do not show that the

volunteer in question was taught or told that it was illegal to copy a voter applicants phone number. Section 39.02 also requires a prosecutor

to prove beyond reasonable doubt the value of a vote, which is an

impossible requirement.

9. Recommendation. We recommend that the complaint be dismissed for insufficient evidence and failure to state an offense.

Signed on this 4th day of April, 2014.

Respectfully submitted:

CHRISTINE DEL PRADO

JOHN M. ECONOMIDY

District Attorney Pro Tem

District Attorney Pro Tem

State Bar of Texas No. 08561165State Bar of Texas No. 06404500

The two District Attorneys Pro Tem interviewed Bexar County Elections Administrator Jacquelyn F. Callanen on Thursday, March 27, 2014. Ms. Callanen related that it is legal, permissible, and common for the elections office to sell voter lists, especially to candidates.

It is unclear why the announcer mentions only cell phones instead of all phones.

Bexar County Elections Administrator Jacquelyn F. Callanan advised the two District Attorneys Pro Tem on March 27, 2014 that 154 of the 254 counties in Texas have separate election administrators.

Ms. Andrade was succeeded in office by John Steen of San Antonio, who was himself succeeded by Nandita Berry.

Judge Costa, a former law clerk for Chief Justice of the United States William Rehnquist, was nominated by President Barrack Obama on a recommendation of the

two Republican U.S. Senators from Texas. He was confirmed by the U.S. Senate on April 26, 2012. President Obama has nominated Judge Costa for the U.S. Court of Appeals for the Fifth Circuit. Judge Costa attended Dartmouth College and the University of Texas School of Law.

This brief of the ruling of the Court of Appeals concerns only this relevant portion on

photocopying and not the other four points in the litigation.

This conclusion would seem to negate a suggestion that the volunteer deputy registrar

is a public servant.

TEX. PENAL CODE 1.07(41) defines a public servant as a person elected, selected, appointed, or otherwise designated as one of the following even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of the government, (B) a juror or grand juror; or (C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or (D) an attorney at law or notary public when participating in the performance of a governmental function; or (E) a candidate for nomination or election to public officer; or

(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so. TEX. GOVT CODE 553.001 defines public servant as a person who is elected, appointed, employed, or designated, even if not yet qualified for or having assumes the duties of office, as: (A) a candidate for nomination or election to public office; or (B) an officer of government.

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