Senator Eliot Shapleigh - El Paso, Texas

AUSTIN -- State Sen. Eliot Shapleigh is still waiting for a pile of documents from the state's environmental agency more than a week after a judge ordered the department to relinquish information about proceedings in Asarco's controversial air permit case.

But if he gets those documents, which Shapleigh suspects could show that agency officials had illegal interactions with Asarco lawyers, the senator said he worries he could be subject to criminal charges himself for revealing information he receives.

"Right now, the law can create a safety box that keeps public documents secret," Shapleigh said.

Last year, Shapleigh, D-El Paso, asked the Texas Commission on Environmental Quality for documents he suspected could reveal potentially illegal discussions between Asarco lawyers and agency commissioners.

Records made public in Asarco's ongoing bankruptcy case had indicated that the company's lawyers met with TCEQ commissioners.

Texas law prohibits agency decision-makers from having one-sided communications with parties in contested cases.

Shapleigh suspected that those discussions were part of the reason commissioners in February 2008 approved a controversial air-quality permit that would have allowed Asarco to reopen its copper smelter.

Shapleigh made his request under a section of the Texas open records law that allows lawmakers access to confidential agency documents.

"We need other evidence to elaborate on who was involved," Shapleigh said.

The TCEQ, however, refused to release the documents and sued Texas Attorney General Greg Abbott when he ordered the agency to fulfill Shapleigh's request.

In court, TCEQ attorneys argued that releasing the documents would violate the state constitution and that Shapleigh was unduly interfering in agency functions.

State District Judge Scott Jenkins disagreed and last week ordered the TCEQ to hand over the documents.

Texas attorney general spokesman Tom Kelley said Friday that TCEQ had not yet released the documents. The agency has 30 days to decide whether it would appeal the judge's ruling, he said.

But even if he does eventually get the documents, Shapleigh said he was concerned he could face misdemeanor criminal penalties if he shares information about any wrongdoing he might find.

The law requires Shapleigh to sign a confidentiality agreement to get the documents, but he said at least some of the information should be available to the public.

"We will ask that each document come with a ruling on whether it is open or confidential," Shapleigh said.

To prevent future confusion over such issues, Shapleigh has filed a bill that would make documents lawmakers get from agencies that would otherwise be open to the public exempt from confidentiality agreements.

Randall "Buck" Wood, Shapleigh's attorney, was a lobbyist for open government advocacy group Common Cause in 1973 and helped write the portion of the open records law that gives legislators access to confidential agency documents.

"If you can't find out what's going on with an agency, then you can't legislate," Wood said.

He said he was confident after two rulings in Shapleigh's favor -- first from the attorney general and then from the court -- that TCEQ would eventually be forced to turn over the documents.

"Because of the things we know already, it does make me highly suspicious when Shapleigh does get this information that it could create some real problems for the agency over there," he said. "Otherwise they wouldn't be fighting so hard."

A spokeswoman for TCEQ referred all comment on the case to the attorney general's office.

Asarco officials have said their representatives were not involved in any wrongdoing.

In an e-mailed statement Friday, Thomas Aldrich, Asarco vice president of environmental affairs, said, "Asarco believes that it is not only unethical and unnecessary for an elected official to make innuendos that disparage the reputations of Asarco and its representatives, it is harmful."