Prison Phone Justice

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DMSION
AUSTIN LAWYERS GUILD; CARL
GOSSETT, DAVID GRASSBAUGH,
MARK. SAMPSON, and FRANCIS
WILLIAMS, for themselves and those
similarly situated; and the PRISON
JUSTICE LEAGUE,

Plaintifft

v.
SECURUS TECHNOLOGIES, INC;
AND TRAVIS COUNTY

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CASE NO. 1:14-cv-00366-LY

S£TILEMENJ AGREEMENT AND FULL AND FINAL RELEA§E OF
DISTRICT ATIORNJY LEHMBERG.IN HER QfFU:IAL CAPACITY
This Settlement Agreement and Full and Final Release (hereinafter referred to as the
"District Attorney Agreement'') is entered into by and between the Plaintiffs in this Cause, Case
No. 1:14-cv-00366-LY (hereafter "this Cause") which are the Austin Lawyers Guild; Carl
Gossett, David Grassbaugh. Mark Sampson, and Francis Williams, for themselves and those
similarly situated; and the Prison Justice League (hereinafter referred to as "Plaintiffs'') and
Travis County District Attorney Rosemary Lehmberg, in her Official Capacity, (hereafter
"District Attorney Lehmberg'') a party previously dismissed from this Cause by Plaintiffs
pursuant to FRCP 41(aX1), on behalf of Travis County.

Plaintiffs and District Attorney

Lehmberg are the parties to this District Attorney Agreement, collectively referred to as the
"Parties" or "Party."

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A. Whereas, Securus has contracted with Travis County to provide, among other things,
recordings of telephone calls from inmates housed and/or detained in corrections
facilities operated by Travis County.

B. Whereas, the Securus system allows attorneys who represent criminal defendants to
register their numbers on a "private list" so that calls to their clients will be
confidential, private; and not recorded, stored, collected, intercepted or monitored.

C. Whereas, Plaintiffs had previously asserted certain claims against District Attorney
Lehmberg under the Federal and State Wiretap Acts, and the First, Fourth, Fifth and
Sixth Amendments to the United States Constitution related to alleged breach of
attorney-client privileged conversations between attorneys and inmates housed and/or
detained at corrections facilities operated by Travis County and the Travis County
Sheriff.

D. Whereas, Plaintiffs have dismissed their lawsuit against District Attorney Lehmberg
and the two other Travis County Elected Officials that Plaintiffs sued in this Cause in
their respective official capacities, County Attorney David Escamilla and Sheriff
Greg Hamilton, (hereafter "Elected Officials") pursuant to FRCP 4l(a)(l).

E. Whereas, Plaintiffs have amended their Complaint and repled their claims herein,
substituting Travis County for the Elected Officials as the real party in interest.

F. Whereas. Plaintiffs' Second Amended Complaint asserts certain claims against
Travis County and Securus under the Federal and State Wiretap Acts, and the First,
Fourth, Fifth and Sixth Amendments to the United States Constitution related to
alleged breach of attorney-client privileged conversations between attorneys and
.

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inmates housed and/or detained at corrections facilities operated by Travis County
and the Travis County Sheriff

G. Whereas, Plaintiffs' Second Amended Complaint does not assert any claim or
allegation of intentional or knowingly wrongful or unlawful conduct by any Elected
Official.

H. Whereas, District Attorney Lehmberg, although previously dismissed from this
Cause by Plaintiffs pursuant to FRCP 41(aXl), enters into this District Attorney
Agreement to obtain a release of any and all potential claims that could have been
asserted against her arising out of the facts made basis of this Cause.
I. Whereas, Plaintiffs specifically acknowledge herein that that there was no evidence of
intentional misconduct by any Defendant originally sued in this Cause including:
Securus, Travis County, County Attorney David Escamilla, District Attorney
Rosemary Lehmberg or Sheriff Greg tlamilton.

J. Whereas, District Attorney Lehmberg denies any and all claims and allegations of
misconduct and/or wrongdoing, including, but not limited to claims and/or allegations of
knowing and/or intentional misconduct and/or wrongdoing.

K. Whereas, although no longer a party to this Cause, District Attorney Lehmberg, on
behalf of Travis County, agrees to perform the terms and conditions pertaining to the
Travis County District Attorney's Office (''TCDAO"), its elected official and employees
as set forth more specifically in Section

n.

D. of this District Attorney Agreement

herein.

JI Page Rosemary
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L. Whereas, District Attorney Lebmberg, on behalf of Travis County desires to facilitate
the full and final settlement of all claims that arise out of this Cause or could have arisen
out of this Cause, and

M. Whereas, in addition to this District Attorney Agreement, two other agreements exist
that fully resolve this Cause: (1) the "Main Agreement" between Plaintiffs and
Defendants Secwus, Travis County and Sheriff Grq Hamilton; and (2) the "County
Attorney Agreement" between Plaintiffs and ColDlty Attorney David Escamma. The

Main Agreement and the County Attorney Agreement are fully incorporated herein.

NOW, THEREFORE, In consideradon of the mutual promises and agreemeats
herein, lndudlng tbe recitals set forth herein above, tbe Parties agree as foUows:
II. Consideradon
A. No Admission: It is agreed that the consideration cited below has been extended by
District Attorney Lebmberg on behalf of Travis County and accepted by Plaintiffs in ·
order to eliminate and forego further controversy or litigation; that this District Attorney
Agreement is a compromise of disputed claims; and that the consideration contained
herein is not to be construed as an admission by any Party, all liability being expressly
denied by District Attorney Lehmberg.

B. Consideration by Plalntitf for District Attorney Lehmberg: Plaintiffs hereby release
District Attorney Lebmberg in any and all capacities from any and all claims and/or
causes of action arising out of the Cause, or that could have arisen out of the Cause. The
Parties further each acknowledge District Attorney Lehmberg is not paying any sum
to settle this matter.

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C. Covenant not to sue. Plaintiffs promise and covenant never to initiate any lawsuit,
administrative or other legal action against District Attorney Lehmberg in any and all
capacities arising out of the facts made basis of this Cause.
D. Promises in Facilitation of Settlement. In exchange for the release set forth in
Section D. B., above, and ill. below, District Attorney Lehmberg makes the following
promises on behalf of Travis County in facilitation of the settlement reached herein:
L

PoUdes PertainiDg to Attomey-CUent Pboa.e Call Breach.
L Website. The current TCDAO policies pertaining to attorney-client

phone call breach, attached as Exhibit A, will be placed on the website
for District Attorney Lehmberg's office. This website section shall be
subject to superseding legal requirements, if any.
H. Effect. The policies set forth in Exhibit A will remain in effect while
District Attorney Lehmberg remains in office.
llL Notice of Polley Change. On behalf of Travis County, while she
remains in office, District Attorney Lehmberg will provide written

notice of any change to the policy set forth in ExbJblt A to Plaintiffs'
counsel and to the "Austin Criminal Defense Lawyers Association"
(ACDLA) President Such notice will be provided no less than four
weeks prior to any change, unless such notice is not legally
permissible.

This provision is subject to superseding legal

requirements, if any.
iv. Notice of Access. If a TCDAO prosecutor, or a TCDAO prosecutor's
agent, accesses a defense attorney's privileged call with the defense
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attorney's client, the TCDAO prosecutor will provide to the defense
attorney a written notice or "access of a call" letter. An attorney's
privileged call with their client has only been "accessed" by TCDAO
if a TCDAO prosecutor or a TCDAO prosecutor's agent has listened
to the phone call.

Included in that letter will be a notice that the

defense attorney may provide a written request to the Travis County
Sheritr s Office for an access log (as described in the Main
Agreement). If the TCDAO prosecutor or his or her agent accesses
this call pursuant to a superseding legal requirement, such as a court
order, subpoena, or a search warrant, this Notice of Access Section
does not apply.
v. Case-by-Case. Any violation of the TCDAO's policy pertaining to
attorney-dient phone call breach will be decided on a case-by-case
basis by District Attorney Lebmberg.

vi. No Consent Decree. The Parties have not and will not enter into a
consent decree pertaining to this Cause.

viL Not included in the Local Rules. The above-referenced TCDAO
policies set forth in Exhibit A will not become part of the Local Rules
of the Travis County District and County Court at Law Criminal
Courts.

IR Release by Plaindffs.
FuU and Flnal Release. For and in consideration of the above promises by Plaintiffs
and District Attorney Lebmberg on behalf of Travis County, the sufficiency of which is hereby

61 P a g e

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acknowledged, and also in consideration of the mutual covenants and releases contained herein,
Plaintiffs, for themselves and their heirs, executors, successors, and assigns, agree to and do
hereby fully and forever Release, Acquit, and Discharge: District Attorney Rosemary Lebmberg
in her individual capacity; and in her official capacity on behalf of Travis County, all of their
past, present or future subsidiaries, affiliates, predecessors and successors in interest, heirs,
executors, assigns, officers, directors, trustees,

agents, employees, representatives and

attorneys, (collectively, "Releasees'') from any and all charges, liabilities, actions, causes of
action, claims, demands, suits, losses, controversies, damages, debts, costs, and expenses
(including attorney fees and costs), present or future, vested or contingent, known or unknown,
of any kind or character whatsoever, whether at common law, statutory law, or otherwise,
whether sounding in tort or in ,contract, whether direct or indirect, which were asserted or could
have been asserted by Plaintiffs against District Attorney Lebmberg in her individual capacity or
in her official capacity on behalf of Travis County, Texas through the date of the execution of

this District Attorney Agreement ("Claim or Claims'').
This complete District Attorney Agreement and Release includes, but is not limited to, a
release of any rights arising out of alleged violations of any contract, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort, including any claim for
negligence or gross negligence on the part of any of the Releasees, of any federal, state or other
governmental statute, regulation, or ordinance, including, without limitation, the United States
Constitution, the Texas Constitution, 42 U.S.C.§ 1983, the Americans with Disabilities Act and
the Federal and State Wiretap Acts. Excluded from this District Attorney Agreement are any
claims that cannot be waived by law and any claims that arise after the date this District

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Attorney Agreement is executed by Plaintiffs. Plaintiffs do waive and release, however, their
right to any monetary recovery should any agency pursue any claims on Plaintiffs' behalf.

IV. Undertakings by Organizational Plaintiffs.
The organizational Plaintiffs, Austin Lawyers Guild and Prison Justice League, agree to work
with their respective members to ensw-e the members are aware of the policies and
procedw-es with respect to the District Attorney's Office's Policies pertaining to AttorneyClient Phone Call Breach, as set forth in ll.(D.), above.

V.

RepreseDtadoDI by Plaintiffs.

Plaintiffs for themselves and on behalf of their heirs, executors, successors and assigns, hereby
expressly warrant and represent to all of the Parties hereby released the following:

A. Competent.

Plaintiffs are legally competent to execute this District Attorney

Agreement.

B. Authority of Plaintiffs' Counsel. Plaintiffs' Counsel hereby promises that they have
authority to represent the Plaintiffs in this Cause and to enter into this District Attorney
Agreement on behalf of Plaintiffs.
C. No Assignment of Claims. Plaintiffs have not assigned, pledged or otherwise in any
manner whatsoever sold or transferred, either by insbument, in writing or otherwise, any
right, title, interest or claim that they have or may have by reason of the matters
described as being released above.
D. No Promise Outside Agreement. No promise or representation of any kind has been
made to District Attorney Lehmberg or by anyone acting on her behalf or on behalf of
Releasees related to the matters released herein, except as is expressly stated in this
District Attorney Agreement

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E. Reliance of Plaintiffs. Plaintiffs have relied solely on their own judgment and that of
their attorneys in executing this District Attorney Agreement
F. FuU and Filial Release. Plaintiffs understand that this is a full. complete, and final
Release of any and all claims against District Attorney Lehmberg in any and all
capacities.
G. FuU and Flaal Considendon. Plaintiffs understand and fully realize that the abovestated consideration, as weU as the consideration

set

forth in the Main AgRelllent and

County Attorney Agreement, incorporated by reference in Section I. Recitals, (J.),
herein, is fuU and final consideration to Plaintiffs and their counsel in resolution of this
matter.

H. No other Legal Actions. Other than the current pending lawsuit, Plaintiffs have not
filed any charges, lawsuits, or other legal actions or complaints with any court or
governmental agency asserting any Claim released in Sections II. B. and

mhereof, and

agree never to do so. Excluded from this subsection are any rights to file a charge,
lawsuit, or other legal action or complaint, which cannot be waived by law. Plaintiffs do
waive and release, however, their right to any monetary recovery should any agency
pursue any claims on Plaintiffs' behalf.
I. No Fraud or Duress. Plaintiffs have not entered into this District Attorney AgRelllent
under fraud, duress, undue influence, or other improper conduct by District Attorney
Lehmberg or any other Releasee, but enter into this District Attorney Agreement freely
and voluntarily.

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VI. Miscellaneous Provisions
A. No Waiver.

No waiver, amendment, or modification of this District Attorney

Agreement shall be valid unless in writing and signed by the Party against whom it is to
be enforced

B. Governing law. This District Attorney Agreement shall in all respects be interpreted,
enforced, and governed under the laws of the State of Texas. Jurisdiction and venue for
any action to interpret or enforce this District Attorney Agreement or any provision
thereof shall be in a State District Court of Travis County, Texas.
C. Severability. In the event that one or more of the provisions, or portions thereof: of this
District Attorney Agreement is determined to be illegal or unenforceable, the remainder
of the District Attorney Agreement shall not be affected thereby and each remaining
provision, or portions

then:ot:

shall continue to be valid and effective and shall be

enforceable to the fullest extent permitted by law.
D. Proper constructioa. The language of all parts of this District Attorney Agreement
shall in all cases be construed as a whole according to its fair meaning, and not strictly
for or against any of the Parties. The paragraph headings used in this District Attorney
Agreement are intended solely for convenience of reference and shall not in any manner
amplify, limit, modify or otherwise be used in the interpretation of any of the provisions
hereof.
E. Attorney's fees. The Parties expressly acknowledge and agree that in the event any
Party breaches any of the terms and covenants contained in this District Attorney
Agreement, any other Party may bring suit to enforce its, his, or her rights, and the
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successful Party in such litigation shall be entitled to recover of and from the breaching
Party its, his or her reasonable attorney's fees and court costs incurred in bringing such
action, together with any damages to which the Party may be entitled.
F. Multiple originals. The Parties expressly acknowledge and agree that this District
Attorney Agreement may be executed in a number of identical counterparts, each of
which shall be deemed an original for all purposes. Exact copies of this fully executed
District Attorney Agreement shall be as enforceable as if they were an original.
G. BIDding on heirs and othen. Except as set forth in Section ll. 0, above, this District
Attorney Agreement shall be binding on all Parties and upon their heirs, representatives,
executors, administrators, successors, and assigns, and shall inure to the benefit of the
Parties and others released in Section

m and

each of them, to their respective heirs,

representatives, executors, administrators, successors, and assigns.

H. AckDowledgemeots. Plaintiffs acknowledge and agree that (i) they have carefully read
this District Attorney Agreement; (ii) they fully understand their right to discuss all
aspects of this District Attorney Agreement with their attorneys; (iii) they have availed
themselves of this right to the full extent (if any) that they desired; (iv) they fully

understand all provisions of this District Attorney Agreement; (v) this District Attorney
Agreement constitutes the sole and entire agreement among the Parties; (vi) they have
executed this District Attorney Agreement voluntarily and of their own free will and
accord and for the consideration hereio stated; and (vii) they enter into this District
Attorney Agreement with full knowledge of the content and effect hereof.
L Effective date. This District Attorney Agreement shall be effective upon its execution
by all Parties.

Lehmb~rg's

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Settlement Agreement-

ACCBPTD AND AGREED:

The Austin Lawyers Ouild

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Date: _3-7-lb
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Date: _3_·"7.;...._-........,.;.(
Mark Sampson

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ACCEPTED AND AG

Assistant Travis County Attorneys
TRAVIS COUNTY ATTORNEY'S OFFICE
P.O. Box 1748
Austin, Texas 78701
Attorneys for Travis County Defendants

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from: Robert Smith
Sent: Fndly, May 09,201411:59 AM
To: D~Ewryone
$.abject: IMPORTANT: Polley on Olsc:toue d PI'Mieged Communications

Polley on Disclosure of Prtvi~&ed communleatlons:

A. All employees and aatnt$ of tht Travis County District Attorney's Office are prohibited from llstenlnt to or
recordlnc prtvl~aed eommunleatlons between lawyers and/or their representatives and a dlent held In
custody. In the event any employee, aaent or repre$en~ttve of the Travis County Dlstrtct Attorney's Office
becomes aware of a communication bet~nen a lawyer and thtlr represen~tlw and his dlent that has been
recorded, the District Attorney emplov- shalllmmedl~ely stop llstentna to the recordlnt and Immediately
Inform their direct supervi$or, a Division Director, the First Assistant or the District AttorMy. The attorney for
the dlent shall be Immediately Informed of the recordlna.
8. This polky applies to any and aU communications between lawyers or their representatives and their dlents,
lndudlna telephone calls, video conferences, video visitations, In penon visitations and written eomrnunlcatlons.
C. This policy does not apply to c.a.ses where the prosecutcc's office or any law enforcement a1encv has obtained a
valid warrant to monitor communications. This policy does not apply where the cl~nt has waived the prtvilep

lnwritlna.

2180001

EXHIBIT A