Complaint: affidavit withheld illegally in drug case warrant

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Forty-Niner Indian Chief with backdrop of Declaration, U.S. Constitution (double click image for full-frame photo)

Waco – Sheriff Parnell McNamara withheld public information not covered by the Texas Open Records Act, (Sect. 552 Texas Government Code), according to a complaint filed with the McLennan County Criminal District Attorney.

In the 2013 drug case against David Sirbasku, a warrant of search and arrest alleged possession of a controlled substance, heroin, leading to an indictment for delivery of a controlled substance – less than one gram, and intentionally and knowingly attempting to take a controlled substance into the McLennan County Jail.

State v. Sirbasku, Cause No. 2013-1655-C1

Three days earlier, Sirbasku phoned emergency medical technicians after he found a girlfriend unresponsive in a tub of tepid bathwater, one empty syringe and one filled resting on the counter top. She was dead on arrival at a local hospital.

When Legendary Reporter R.S. Gates requested a copy of the probable cause affidavit filed with the jail magistrate, McLennan County Sheriff’s Office Records Clerk Tamma Willis demanded an opinion from the Open Records Division of the AG’s office.

Said Gates, “Tamma, the search warrant affidavit and return on Sirbasku are court documents and not subject to an Attorney General opinion.”

Ms. Willis replied, “I know. I told them, but they wanted an Attorney General Opinion.”

The resulting complaint filed with the DA’s office alleges that “Complainant believes the Texas Public Information Act provides for delegation of the release of information, but makes no provision for delegation of liability for violation of the act.”

The Legendary has requested a determination if “the Sheriff…violated the act by denying access to public information in the form of the affidavit, warrant, and return.”

The complaint is directed at a perception that the Sheriff and his clerical staff engage in an ongoing campaign of making administrative law in the absence of due process by withholding timely release of information that is not covered by the Open Records Act, and by the incessant request for opinions of the AG’s office for items that are known to be subject to prompt release under the law.

It is a matter of record that information previously released to other parties, such as mainstream media outlets, is not subject to a legal review, according to past opinions of the Attorney General.

Deputies seized a 2011 BMW and a .223 caliber AR-15 rifle based on an interview with Sirbasku in which he allegedly stated that he let people drive the car to go and get drugs.

State v. 2011 BMW, Cause No. 2013-344-3, 74th Dist. Court

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