IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-91,688-01
IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Relator
ON PETITION FOR A WRIT OF MANDAMUS CHALLENGING TRIAL COURT’S DISCOVERY ORDERS IN CAUSE NO. 27347 FROM THE 278TH DISTRICT COURT OF WALKER COUNTY
NEWELL, J., delivered the opinion of the Court in which KELLER, P.J., HERVEY, RICHARDSON, YEARY, KEEL, WALKER and MCCLURE, JJ., joined. SLAUGHTER, J., filed a dissenting opinion.
The Office of Capital and Forensic Writs sought and received a
sealed, ex parte discovery order from the 278th District Court of Walker
County. The order compels Relator, the Texas Department of Criminal
Justice, to provide confidential records to the Office of Capital and In re Texas Department of Criminal Justice — 2
Forensic Writs. The Office of Capital and Forensic Writs seeks these
records to assist in its preparation of an application for habeas corpus
relief for inmate John Ray Falk, Jr., the Real Party in Interest, from his
capital murder conviction and his death sentence. As custodian of these
records, Relator seeks leave from this Court to file a petition for a writ
of mandamus. We grant Relator leave to file and we conditionally grant
mandamus relief.
Recently, this Court held in In re City of Lubbock that a trial court
lacks authority enter an ex parte order to a third party for the production
of records pursuant to an ex parte discovery request. 1 As we explained, 0F
judges are prohibited from permitting or considering ex parte
communications from a party to pending litigation unless expressly
authorized by law. 2 1F And there is no statutory or constitutional
authorization for ex parte criminal discovery. 3 2F
Though this case deals with a post-conviction ex parte discovery
request, it is nevertheless analogous to the ex parte discovery request
at issue in Lubbock in crucial and dispositive respects. Both requests
are general discovery requests. Neither seeks an appointment of
1 In re City of Lubbock, 666 S.W.3d 546, 566 (Tex. Crim. App. 2023).
2 Id. at 556.
3 Id. at 563-64. In re Texas Department of Criminal Justice — 3
experts to assist in the Real Party In Interest’s defense at trial. There
is no statutory or constitutional authorization for either request to be
considered ex parte. Regardless of whether the law is unclear regarding
a trial court’s authority to order discovery from a nonparty in a post-
conviction proceeding, the law is clear that doing so ex parte must be
expressly authorized. 4 3F There is no express authorization, in Article
11.071 or otherwise, for the ex parte discovery order in this case. 5 And 4F
as we clarified in Lubbock, the authority to consider matters in camera
should not be confused with the ability to proceed ex parte. 6 Cases 5F
purporting to authorize ex parte proceedings when they actually deal
with proceedings in camera do not provide express authorization for the
type of ex parte discovery order at issue in this case. 7 6F
4 Id. at 558 (“Absent express authorization, a trial court must not consider ex parte communications from one party without notice to the other concerning matters pending before court.”).
5 Cf. Tex. Code Crim. Proc. art. 11.071, § 3(b) (authorizing ex parte requests for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims) & (d) (authorizing ex parte claims for reimbursement of counsel for expenses if expenses are reasonably incurred).
6 Lubbock, 666 S.W.3d at 555-56.
7 Despite the Court’s holding in In re Lubbock, the dissent suggests ample authority supports discretionary ex parte communications even when not expressly authorized. However, the authority relied upon does not support the proposition that ex parte communications be used for routine discovery requests. See United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987) (noting ex parte proceedings require compelling justification but relying upon examples that involve in camera proceedings not ex parte proceedings and ultimately concluding the district court abused its discretion by proceeding ex parte) (citing United States v. Dupuy, 760 F.2d 1429, 1501 (9th Cir. 1985) (in camera review of plea bargain notes); United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (in camera review of In re Texas Department of Criminal Justice — 4
Regardless of whether the law governing post-conviction discovery
is completely settled, the law requiring express authorization for ex
parte communications is settled. 8 Applicant’s ex parte request and the 7F
trial court’s ex parte order were entered prior to Applicant filing an
application for a writ of habeas corpus but there is no express
authorization for such ex parte proceedings pre-filing. Furthermore, the
suggestion that there was no adversarial proceeding to which the State
Border Patrol report); United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir. 1975) (in camera hearing regarding disclosure of informant’s identity)); United States v. Napue, 834 F.2d 1311, 1320 (7th Cir. 1987) (considering the government’s reasons for objecting to certain discovery disclosures based on safety concerns in camera but noting “potentially significant problems” with the use of ex parte communications); People v. Thompson, 384 P.3d 693, 737 (Cal. 2016) (concluding trial court acted properly in excluding defendant from a hearing between the prosecution and co-defendant that involved co-defendant’s discovery obligations because defendant was not a “person who [had] a legal interest in the proceeding” within the meaning of judicial canon prohibiting ex parte proceedings); People v. Valdez, 281 P.3d 924, 955 (Cal. 2012) (state law authorized in camera hearing regarding disclosure of witness identities and defendant could not complain about such hearings held before he was arrested or after, which he had advance notice of and failed to object to, and any error in the court proceeding ex parte in this manner was harmless ); State v. Harris, 245 So.3d 1036 (La. 2018) (holding the district court abused its discretion to proceed ex parte); Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (refusing to consider affidavits submitted improperly as ex parte communications noting no emergency justified disregarding the rule disfavoring such ex parte communications and citing examples of specific statutory authorizations for ex parte communications); United States Gov't. v. Marks, 949 S.W.2d 320, 325 (Tex. 1997) (district court did not err to hear government’s objection to the taking of a deposition it alleged would hamper an on-going grand jury investigation in camera holding such a procedure could be used in an extraordinary circumstance). Several of these cases appear to fail to appreciate the distinction between ex parte and in camera inspections.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-91,688-01
IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Relator
ON PETITION FOR A WRIT OF MANDAMUS CHALLENGING TRIAL COURT’S DISCOVERY ORDERS IN CAUSE NO. 27347 FROM THE 278TH DISTRICT COURT OF WALKER COUNTY
NEWELL, J., delivered the opinion of the Court in which KELLER, P.J., HERVEY, RICHARDSON, YEARY, KEEL, WALKER and MCCLURE, JJ., joined. SLAUGHTER, J., filed a dissenting opinion.
The Office of Capital and Forensic Writs sought and received a
sealed, ex parte discovery order from the 278th District Court of Walker
County. The order compels Relator, the Texas Department of Criminal
Justice, to provide confidential records to the Office of Capital and In re Texas Department of Criminal Justice — 2
Forensic Writs. The Office of Capital and Forensic Writs seeks these
records to assist in its preparation of an application for habeas corpus
relief for inmate John Ray Falk, Jr., the Real Party in Interest, from his
capital murder conviction and his death sentence. As custodian of these
records, Relator seeks leave from this Court to file a petition for a writ
of mandamus. We grant Relator leave to file and we conditionally grant
mandamus relief.
Recently, this Court held in In re City of Lubbock that a trial court
lacks authority enter an ex parte order to a third party for the production
of records pursuant to an ex parte discovery request. 1 As we explained, 0F
judges are prohibited from permitting or considering ex parte
communications from a party to pending litigation unless expressly
authorized by law. 2 1F And there is no statutory or constitutional
authorization for ex parte criminal discovery. 3 2F
Though this case deals with a post-conviction ex parte discovery
request, it is nevertheless analogous to the ex parte discovery request
at issue in Lubbock in crucial and dispositive respects. Both requests
are general discovery requests. Neither seeks an appointment of
1 In re City of Lubbock, 666 S.W.3d 546, 566 (Tex. Crim. App. 2023).
2 Id. at 556.
3 Id. at 563-64. In re Texas Department of Criminal Justice — 3
experts to assist in the Real Party In Interest’s defense at trial. There
is no statutory or constitutional authorization for either request to be
considered ex parte. Regardless of whether the law is unclear regarding
a trial court’s authority to order discovery from a nonparty in a post-
conviction proceeding, the law is clear that doing so ex parte must be
expressly authorized. 4 3F There is no express authorization, in Article
11.071 or otherwise, for the ex parte discovery order in this case. 5 And 4F
as we clarified in Lubbock, the authority to consider matters in camera
should not be confused with the ability to proceed ex parte. 6 Cases 5F
purporting to authorize ex parte proceedings when they actually deal
with proceedings in camera do not provide express authorization for the
type of ex parte discovery order at issue in this case. 7 6F
4 Id. at 558 (“Absent express authorization, a trial court must not consider ex parte communications from one party without notice to the other concerning matters pending before court.”).
5 Cf. Tex. Code Crim. Proc. art. 11.071, § 3(b) (authorizing ex parte requests for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims) & (d) (authorizing ex parte claims for reimbursement of counsel for expenses if expenses are reasonably incurred).
6 Lubbock, 666 S.W.3d at 555-56.
7 Despite the Court’s holding in In re Lubbock, the dissent suggests ample authority supports discretionary ex parte communications even when not expressly authorized. However, the authority relied upon does not support the proposition that ex parte communications be used for routine discovery requests. See United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987) (noting ex parte proceedings require compelling justification but relying upon examples that involve in camera proceedings not ex parte proceedings and ultimately concluding the district court abused its discretion by proceeding ex parte) (citing United States v. Dupuy, 760 F.2d 1429, 1501 (9th Cir. 1985) (in camera review of plea bargain notes); United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (in camera review of In re Texas Department of Criminal Justice — 4
Regardless of whether the law governing post-conviction discovery
is completely settled, the law requiring express authorization for ex
parte communications is settled. 8 Applicant’s ex parte request and the 7F
trial court’s ex parte order were entered prior to Applicant filing an
application for a writ of habeas corpus but there is no express
authorization for such ex parte proceedings pre-filing. Furthermore, the
suggestion that there was no adversarial proceeding to which the State
Border Patrol report); United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir. 1975) (in camera hearing regarding disclosure of informant’s identity)); United States v. Napue, 834 F.2d 1311, 1320 (7th Cir. 1987) (considering the government’s reasons for objecting to certain discovery disclosures based on safety concerns in camera but noting “potentially significant problems” with the use of ex parte communications); People v. Thompson, 384 P.3d 693, 737 (Cal. 2016) (concluding trial court acted properly in excluding defendant from a hearing between the prosecution and co-defendant that involved co-defendant’s discovery obligations because defendant was not a “person who [had] a legal interest in the proceeding” within the meaning of judicial canon prohibiting ex parte proceedings); People v. Valdez, 281 P.3d 924, 955 (Cal. 2012) (state law authorized in camera hearing regarding disclosure of witness identities and defendant could not complain about such hearings held before he was arrested or after, which he had advance notice of and failed to object to, and any error in the court proceeding ex parte in this manner was harmless ); State v. Harris, 245 So.3d 1036 (La. 2018) (holding the district court abused its discretion to proceed ex parte); Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (refusing to consider affidavits submitted improperly as ex parte communications noting no emergency justified disregarding the rule disfavoring such ex parte communications and citing examples of specific statutory authorizations for ex parte communications); United States Gov't. v. Marks, 949 S.W.2d 320, 325 (Tex. 1997) (district court did not err to hear government’s objection to the taking of a deposition it alleged would hamper an on-going grand jury investigation in camera holding such a procedure could be used in an extraordinary circumstance). Several of these cases appear to fail to appreciate the distinction between ex parte and in camera inspections. In any event, a recognition that there may be extraordinary, emergency, or limited and compelling circumstances in which an ex parte communication may be permitted does not support the use of ex parte communications for general discovery requests like the one at issue in this case. While certainly a capital murder case is a serious case, an otherwise general discovery request does not become an extraordinary or emergency circumstance simply because this is a capital case.
8 Lubbock, 666 S.W.3d at 566. In re Texas Department of Criminal Justice — 5
was a “party” at that time disregards the State’s on-going discovery
obligation under Article 39.14. 9 In addition to its on-going discovery 8F
obligation, the State maintains an interest in the enforcement of the
penal laws of Texas and by extension the enforcement of the criminal
judgment. 10 Further, in the death penalty context, the State is a party 9F
to the concurrent direct appeal in a capital case. 11 The State is a party 10F
to the post-conviction application in this case. 12 11F And the order in this
case was requested and issued ex parte.
We hold that the trial court lacked authority to enter the ex parte
order for records in this case. 13 We grant leave to file and conditionally 12F
9 Tex. Code Crim. Proc. art. 39.14(k) (“If at any time, before, during, or after trial the state discovers any additional document, item, or information required to be disclosed . . . the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.”).
10 See Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 2008) (recognizing the State possesses a legitimate interest in “the repose and finality of its convictions”); Ex parte Woods, 296 S.W.3d 587, 613 n. 41 (Tex. Crim. App. 2009) (noting that courts must “seek through the writ of habeas corpus to balance fundamental fairness to criminal defendants and the State’s legitimate interest in the finality of litigation.”).
11 See Tex. Code Crim. Pro. art. 11.071 §§ 2(b) (appointment of habeas counsel immediately after judgment is entered if defendant desires appointment of counsel); 3(a) (mandating that the habeas investigation begin before and after the appellate record is filed) & 4(a) (application must be filed not later than the 180th day following appointment of counsel or the 45th day after the filing of the State’s original brief on direct appeal).
12 See Tex. Code Crim. Pro. art. 11.071 § 7(a) (“The state shall file an answer to the application for a writ of habeas corpus not later than the 120th day after the date the state receives notice of the issuance of the writ.”).
13 As in Lubbock, we resolve this case without otherwise addressing the scope of the habeas court’s inherent authority because it lacked the authority to proceed ex parte. Lubbock, 666 S.W.3d at 553 (“Neither do we need to address whether the trial court had the inherent authority to issue the order in this case. Rather, as we will explain below, we need only decide In re Texas Department of Criminal Justice — 6
grant Relator’s petition for a writ of mandamus. The writ of mandamus
will issue only in the event that the district court fails to comply with
this opinion.
Delivered: June 14, 2023
Do Not Publish
whether the ex parte nature of the proceeding was expressly and constitutionally authorized. It was not.”).