in Re City of Lubbock, Relator

• Court: Court of Appeals of Texas
• Decided: September 2, 2021
• Docket: 07-21-00070-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00070-CV ________________________

IN RE CITY OF LUBBOCK, RELATOR

Original Proceeding Arising From Proceedings Before the 140th District Court Lubbock County, Texas Trial Court No. 2020-421,049; Honorable Douglas H. Freitag, Presiding

September 2, 2021 CONCURRING OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

I concur with the majority in deciding that the City of Lubbock has no adequate

legal remedy and rejecting the argument that the constitutionality of various parts of the

Code of Criminal Procedure are under attack. I also agree with the majority’s conclusion

that the trial court did not abuse its discretion in entering the order at issue but do so for

a different reason.

As the relator, the burden lay with the City to prove entitlement to a writ of

mandamus. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (orig. proceeding) (stating that “[m]andamus will issue if the relator establishes a clear abuse

of discretion for which there is no adequate remedy by appeal”). That required it to

illustrate that the order under attack constituted an instance of abused discretion. Id.

Here, the order under attack directed the City to provide the trial court with the records

sought by Rodolfo Zambrano for purposes of conducting an in camera review. 1 In so

ordering, the trial court expressly reserved its decision on what to do with the records

once inspected by it. Given this, the true issue involves the authority of the trial court to

order the delivery of the records to it for its review. But, that is not what the City

addressed. Instead, its argument concerns whether Zambrano could obtain discovery of

the documents as part of a state criminal proceeding. That becomes relevant if, and only

if, the trial court decides to allow Zambrano to view them, after it reviews them in camera.

Until the court so decides, the City’s arguments are premature. The argument being

premature and the trial court having yet to decide whether to release the items to anyone

else, we cannot tell it whether to release them to Zambrano. See In re Surovik, No. 07-

20-00371-CV, 2021 Tex. App. LEXIS 1704, at *11 (Tex. App.–Amarillo Mar. 8, 2021, orig.

proceeding) (mem. op.) (stating that our "mandamus authority does not include directing

a court how it must rule on a matter presently before it"). In turn, that leads me to agree

with the majority that the City failed to establish an instance of abused discretion.

1 The aspects of the order pertinent to this concurring opinion are: 1) “[t]he Court further ORDERS that both the Defendant and the City of Lubbock Police Department (through City Attorney’s Office) be notified prior to the release of any records outside of the in-camera inspection, in the event that Court determines release should occur after an in-camera inspection is concluded”; 2) “[t]he Court reserves the right to issue any protective order, or otherwise restrict further dissemination of the records referenced herein (including but not limited to redaction of the records), if the Court deems necessary, in the event that the Court determines any record should be released”; and, 3) “[a]ny records tendered to the Court for in-camera inspection, shall remain under seal unless and until otherwise ordered by the Court.” (Emphasis added).

2 Another omission I deem pertinent also concerns the absence of explanation. The

explanation implicates standing. That is, it would behoove the City to explain its standing

to invoke provisions of the Texas Code of Criminal Procedure pertaining to discovery in

a criminal proceeding to which it is not a party. The criminal proceeding is between the

State of Texas and Zambrano, and the criminal infraction underlying it falls outside the

City’s criminal jurisdiction. Yet, to impede disclosure of the records, the City attempts to

stand in the shoes of the State by invoking argument concerning the permissible scope

of discovery in the State’s prosecution of Zambrano. That, at first blush, would seem to

be a battle that only the State could wage. Why the City has standing to wage it on behalf

of the State should be explained, in my view. At the very least, the State should be

afforded opportunity to participate in resolution of the discovery dispute, especially since

the controversy is now part of the public record.

In short, I too would deny the City’s petition for writ of mandamus.

Brian Quinn Chief Justice