In Re University of Texas Medical Branch-Galveston, Relator

• Court: Court of Criminal Appeals of Texas
• Decided: October 18, 2023
• Docket: WR-91,715-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-91,715-01

IN RE UNIVERSITY OF TEXAS MEDICAL BRANCH- GALVESTON, Relator

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND PETITION FOR WRIT OF MANDAMUS CAUSE NO. 011545 IN THE 259TH DISTRICT COURT OF JONES COUNTY

NEWELL, J., delivered the opinion of the Court in which KELLER, P.J., HERVEY, RICHARDSON, YEARY and WALKER, JJ., joined. SLAUGHTER, J., filed a concurring opinion. KEEL and MCCLURE, JJ., concurred.

The Office of Capital and Forensic Writs sought and received two

sealed ex parte orders from the 259th District Court of Jones County on

behalf of Real Party in Interest, Dillion Compton. One order compels

the University of Texas Medical Branch-Galveston, Relator, to conduct In re University of Texas Medical Branch-Galveston— 2

brain imaging on the Real Party in Interest and directs the Texas

Department of Criminal Justice to arrange transportation for that brain

imaging. The other order, which is no longer at issue, compelled TDCJ

to provide certain confidential records to OCFW. 1 OCFW sought the

orders pursuant to its post-conviction investigation into the Real Party

in Interest’s capital murder conviction and sentence. UTMB and TDCJ

challenged the ex parte orders by filing a motion to set aside the

discovery orders in the trial court. After initially granting the motion to

set aside the discovery orders and then holding a hearing, the trial court

ultimately denied the motion to set aside the discovery orders and

entered an order reinstating the original ex parte orders.

Relator now seeks leave from this Court to file a petition for a writ

of mandamus and requests that this Court vacate the remaining ex parte

order regarding the brain imaging and transportation for the brain

imaging of the Real Party in Interest. Because the trial court was

without authority to enter the order at issue ex parte, we grant Relator’s

motion for leave to file and conditionally grant mandamus relief.

1 OCFW withdrew its request pertaining to the TDCJ records and the trial court entered an order withdrawing its ex parte order compelling the release of those TDCJ records. Only UTMB filed a motion for leave to file a petition for a writ of mandamus before this Court. In re University of Texas Medical Branch-Galveston— 3

We recently held that a trial court lacks authority to enter an ex

parte order to a third party for the production of records pursuant to an

ex parte discovery request. 2 We granted mandamus relief in that case

and explained that judges are prohibited from permitting or considering

ex parte communications unless expressly authorized by law. 3 There is

no statutory or constitutional authorization for ex parte criminal

discovery. 4 Likewise, we rejected the contention that a trial court’s

inherent authority can provide express authorization to proceed ex parte

noting that “[t]o do otherwise would render meaningless the limitation

placed upon trial court’s regarding ex parte communications.” 5

While this case does not involve a request for records it is

nevertheless analogous. The order at issue compels Relator to conduct

brain imaging on the Real Party in Interest and compels TDCJ, another

third party, to arrange transportation. The Real Party in Interest argues

2 In re City of Lubbock, 666 S.W.3d 546, 559 (Tex. Crim. App. 2023); see also In re TDCJ, No. WR-91,688-01, 2023 WL 4003792, at * 2 (Tex. Crim. App. June 14, 2023) (not designated for publication).

3 Id. at 558.

4 Id. at 558.

5 Id. The United States Supreme Court seems to have reached a similar conclusion with regard to a similar order pursuant to federal statutory law. Shoop v. Twyford, 142 S.Ct. 2037, 2046 (2022) (an order compelling state to transport petitioner for medical testing was not “necessary or appropriate” because petitioner had not established the desired evidence would be admissible in federal habeas proceedings) (citing 28 U.S.C. § 1651(a)). In re University of Texas Medical Branch-Galveston— 4

that the trial court’s order was not a discovery order and points to Article

11.071, Section 3, as support for the trial court’s authority. Article

11.071, Section 3, authorizes ex parte requests in only two instances

(1) a request for prepayment of expenses, including expert fees, to

investigate and present potential habeas corpus claims and (2) a claim

for reimbursement for expenses for habeas corpus investigation that are

reasonably necessary and reasonably incurred. 6 The ex parte order at

issue does not involve a request for prepayment of expenses nor a claim

for reimbursement of expenses. While the Real Party in Interest’s ex

parte motion cites Article 11.071, § 3, it otherwise makes no mention

of expenses at all. We need not consider whether the trial court had the

discretion to otherwise enter the order because we conclude that it did

not have the authority to do so ex parte. 7 The only ex parte

communications expressly authorized by Article 11.071 relate to the

prepayment or reimbursement of expenses. We need not decide

whether the trial court could have ordered the requested transportation

for expert assistance had the Real Party in Interest first sought

6 Tex. Code Crim. Proc. art. 11.071, § 3(b) & (d).

7 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 will explain below, we need only decide whether the ex parte nature of the proceeding was expressly and constitutionally authorized. It was not.”). In re University of Texas Medical Branch-Galveston— 5

prepayment for the testing pursuant to Article 11.071, §3 because the

Real Party in Interest did not do that in this case. 8

We grant leave to file and conditionally 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: October 18, 2023

Publish

8 We have previously held that a trial court is not authorized to order a third party to create evidence pursuant to discovery. In re State ex. rel. Best, 616 S.W.3d 594, 600 (Tex. Crim. App. 2021).