Carrillo, David

No. ____________

In The RECEIVED
COURT OF CRIMINAL APPEALS
5/27/2015
Court of Criminal Appeals ABEL ACOSTA, CLERK

Austin, Texas

In re
David Carrillo

Relator

On Appeal from Cause No. 2015-820,815
In the 1st Precinct of the Justice of the Peace
Lubbock County, Texas

PETITION FOR WRIT OF MANDAMUS

Chuck Lanehart Allison Clayton
State Bar No. 11891400 State Bar No. 24059587
Chappel, Lanehart, & Stangl, P.C. The Law Office of Allison Clayton
Attorneys at Law P.O. Box 64752
1217 Avenue K Lubbock, Texas 79464
Lubbock, Texas 79401 (806) 773 – 6889
(806) 765-7370 Fax (888) 688 – 4515
Fax (806) 765-8150 Allison@AllisonClaytonLaw.com
ChuckLanehart@LubbockCriminalDefense.com
Attorneys for Relator

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 52.3(a), the following is a complete list of the

names of the parties and their counsel.

PARTIES COUNSEL

Trial Counsel
Chuck Lanehart
Chappel, Lanehart, & Stangl, P.C.
1217 Avenue K
David Carrillo Lubbock, Texas 79401
Defendant / Relator
Appellate Counsel
Chuck Lanehart
Chappel, Lanehart, & Stangl, P.C.
1217 Avenue K
Lubbock, Texas 79401

Allison Clayton
The Law Office of B. Allison Clayton
P.O. Box 64752
Lubbock, Texas 79464-4752

Trial Counsel
Sushine Stanek
Assistant District Attorneys
P.O. Box 10536
Lubbock County Lubbock, Texas 79408-3536
Criminal District Attorney’s Office
Respondent Appellate Counsel
Jeffrey S. Ford
Assistant District Attorney
P.O. Box 10536
Lubbock, Texas 79408-3536

-i-
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................. i

TABLE OF CONTENTS .............................................................................................ii

INDEX OF AUTHORITIES........................................................................................iii

STATEMENT OF THE CASE ....................................................................................v

STATEMENT OF JURISDICTION............................................................................vi

ISSUE PRESENTED ...................................................................................................vii

STATEMENT OF FACTS ..........................................................................................2

SUMMARY OF THE ARGUMENT .......................................................................... 3

ARGUMENT ...............................................................................................................4

MANDAMUS RELIEF IS NECESSARY TO PROTECT MR. CARRILLO’S RIGHTS AND
TO COMPEL THE STATE TO COMPLY WITH ITS MINISTERIAL DUTIES

A. The Writ of Mandamus ............................................................................. 4

B. Article 39.14(a) of the Texas Code of Criminal Procedure.................... 6

C. Mandamus Compelling the State to Comply With the
Mandatory Provisions of Article 39.14 is Necessary to Protect Mr.
Carrillo’s Right to Discovery .......................................................................... 10

PRAYER ......................................................................................................................13

CERTIFICATES ..........................................................................................................14

APPENDICES

- ii -
 INDEX OF AUTHORITIES

Federal Cases

Marbury v. Madison,
5 U.S. 137, 2 L.Ed. 60 (1803) ............................................................................4, 5

United States v. Denson,
603 F.2d 1143, (5th Cir. 1979) ...............................................................................6

State Cases

Anderson v. City of Seven Points,
806 S.W.2d 791 (Tex. 1991) ..................................................................................6

In re State ex rel. Weeks,
391 S.W.3d 117 (Tex. Crim. App. 2013) .................................................... 5, 6, 12

Padilla v. McDaniel,
122 S.W.3d 805 (Tex. Crim. App. 2003) ...............................................................v

Raesz v. Mitchell,
415 S.W.3d 352 (Tex. App.—Ft. Worth 2013, no pet.).........................................6

State ex rel. Rosenthal v. Poe,
98 S.W.3d 194 (Tex. Crim. App. 2003) .................................................................5

State Statutes

TEX. CONST. art. V .....................................................................................................v

TEX. CODE CRIM. PROC. ANN. art 4.04.......................................................................v

TEX. CODE CRIM. PROC. ANN. art. 15.17 (Vernon 2015) ...........................................8

TEX. CODE CRIM. PROC. ANN. art. 39.14(a) ..................................................... passim

TEX. GOV'T CODE ANN. § 22.21(a) ............................................................................v

- iii -
 INDEX OF AUTHORITIES (CONT'D)

State Rules

TEX. R. APP. P. 52 ......................................................................................................v

TEX. R. APP. P. 52.3(a) ............................................................................................... i

Secondary Sources

BLACK’S LAW DICTIONARY (2d pocket ed. 2001)................................................... 10

King v. Barker, 3 Burrow 1265 (1762) ..................................................................... 4

S.B. 1611, INTRODUCED VERSION, March 8, 2013 ................................................... 8

SENATE COMMITTEE ON CRIMINAL JUSTICE,
BILL ANALYSIS, S.B. 1611, 83rd Leg., R.S. (2013) .................................................. 8

SEN. CRIM. JUSTICE COMM., SENATE SUBCOMMITTEE REPORT,
83rd Leg., R.S. (Mar. 28, 2013) ................................................................................ 8

TEXAS APPLESEED & TEXAS DEFENDER SERVICE,
TOWARDS MORE TRANSPARENT JUSTICE:
THE MICHAEL MORTON ACT’S FIRST YEAR 27 (2015) ............................................. 9

Tex. Comm. on Prof’l Ethics, Op. 646 (2014) ....................................................... 11

The Michael Morton Act, 83rd Leg., R.S.,
HEARINGS BEFORE THE CRIM. JUSTICE COMM. (Mar. 26, 2013) &
THE JUDICIARY AND CIV. JURISP. COMM. (Apr. 29, 2013) ......................................... 8

WILLIAM BLACKSTONE,
3 COMMENTARIES ON THE LAWS OF ENGLAND (3d ed. 1862) ................................... 4

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 STATEMENT OF THE CASE

Nature of the Case This is a petition for a writ of mandamus. Relator has been

arraigned for murder. He seeks discovery pursuant to Article

39.14 of the Texas Code of Criminal Procedure.

Respondent The Lubbock County Criminal District Attorney’s Office

(DA) along with any person or entity under contract with the

DA.

Trial Court Justice of the Peace, Precinct #1, of Lubbock County, Texas

Course of the On April 18, 2015, Mr. Carrillo was charged by complaint
Proceedings
with two counts of murder. On April 22, 2105, Mr.

Carrillo’s attorney requested the DA turn over its

discoverable evidence pursuant to Article 39.14(a) of the

Texas Code of Criminal Procedure. Defense counsel asked

the DA to comply with the request within fourteen days. The

DA failed to turn over any evidence. On May 17, 2015, the

assistant district attorney assigned to the case told Mr.

Carrillo’s attorney the DA would not turn over discoverable

evidence until after grand jury proceedings. The instant

petition for writ of mandamus follows.

-v-
 STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to Article V, § 5(c) of the Texas

Constitution, Article 4.04 of the Texas Code of Criminal Procedure, and Rules 52

and 72.1 of the Texas Rules of Appellate Procedure.

The Court of Criminal Appeals traditionally has concurrent, original

jurisdiction with the courts of appeals over mandamus proceedings. TEX. CONST.

art. V, §§ 5, 6; Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003).

Despite this concurrent jurisdiction, traditional practice instructs the relator should

first present a petition for a writ of mandamus to the appropriate court of appeals

unless there is a compelling reason to not do so. Padilla, 122 S.W.3d at 803.

Relator in the instant case has not presented this petition for a writ of

mandamus to the court of appeals because that court lacks jurisdiction to grant him

relief. Relator requests the Court issue a mandamus against a county entity. The

court of appeals only has jurisdiction to issue writs of mandamus against a “judge

or a district or county court” or to otherwise enforce its jurisdiction. TEX. GOV’T

CODE ANN. § 22.21(a), (b). The lack of jurisdiction by the court of appeals

constitutes a compelling reason for bypassing the court of appeals. Consequently,

this Court has, and should exercise, its jurisdiction over the case. See TEX. CONST.

art. V, § 5(c); TEX. CODE CRIM. PROC. ANN. art 4.04; TEX. R. APP. P. 52.

- vi -
 ISSUE PRESENTED

Do the discovery requirements of Article 39.14(a) of the Texas Code of Criminal

Procedure begin only after the grand jury has indicted the accused, and is

mandamus relief appropriate to compel a district attorney to comply with Article

39.14 before it has presented its case to the grand jury.

- vii -
 No. ____________

In The

Court of Criminal Appeals
Austin, Texas

In re
David Carrillo

Relator

On Appeal from Cause No. 2015-820,815
In the 1st Precinct of the Justice of the Peace

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

DAVID CARRILLO, Appellant in docket number _______, submits this

Petition for Writ of Mandamus in support of his request for the Court to enter an

order directing the Lubbock County Criminal District Attorney’s Office (DA)

along with any person or entity under contract with the DA to turn over

discoverable evidence prior to initiation of grand jury proceedings.

-1-
 STATEMENT OF FACTS

On April 18, 2015, the relator, Mr. Carrillo, was arrested on charges of

murder. That same day, he was charged by compliant with two counts of murder

in cause number 820,815, in the Justice Court, Precinct Number 1, of Lubbock

County, Texas, and advised of the charges against him and of his rights. See TEX.

CODE CRIM. PROC. ANN. art. 15.17 (Vernon 2015); State v. Carrillo, No. 2015-

820,815, Criminal Complaint (Apr. 18, 2015) (attached in Appendix A). Mr.

Carrillo has remained incarcerated since the date of his arrest.

On April 22, 2015, Mr. Carrillo’s attorney filed a Notice of Appearance of

Counsel and Formal Request for Compliance with Article 39.14 of the Texas Code

of Criminal Procedure. (Appendix B). In it, Mr. Carrillo’s attorney requested the

DA produce discoverable evidence within fourteen days. The DA failed to comply

with the request. On May 17, 2015, the assistant district attorney appointed to the

case emailed Mr. Carrillo’s attorney indicating the DA’s office would not produce

any discoverable evidence until after the grand jury proceedings. (“Affidavit of

Chuck Lanehart,” Appendix C). The instant petition for writ of mandamus

follows.

-2-
 SUMMARY OF THE ARGUMENT

The provision at issue, Article 39.14(a) of the Texas Code of Criminal

Procedure, mandates “as soon as practicable after receiving a timely request from

the defendant the state shall produce and permit the inspection and the electronic

duplication, copying, and photographing, by or on behalf of the defendant, of

[detailed items of evidence].” The only temporal limitation imposed by this statute

is “as soon as practicable” after defendant’s request. This trigger was the result of

intentional design by the Texas Legislature to ensure discovery in criminal cases

was complete and prompt, thereby promoting a more transparent, fair, and efficient

criminal justice system.

Despite this plain facial reading of the statute and the undeniable intent of

the Legislature, the DA in Mr. Carrillo’s case has unilaterally interposed its own

temporal limitations into the statute by taking the position its discovery obligation

is triggered by indictment. Under this interpretation, no longer does the statute say

the duty to disclose begins “as soon as practicable after receiving a timely request;”

it now reads “as soon as practicable after receiving a timely request and after return

of indictment by the grand jury.” This reading disregards the ministerial duties

imposed by Article 39.14. Because there is no adequate remedy for Mr. Carrillo to

redress the harm done to him by the State’s refusal to comply with statutory

requirements, a writ of mandamus is necessary to protect his rights to discovery.

-3-
 ARGUMENT

MANDAMUS RELIEF IS NECESSARY TO PROTECT MR. CARRILLO’S RIGHTS AND
TO COMPEL THE STATE TO COMPLY WITH ITS MINISTERIAL DUTIES

A. The Writ of Mandamus

The writ of mandamus is, and has always been, a stopgap. Lord Mansfield

offered this history of the writ: “It was introduced, to prevent disorder from a

failure of justice, and defect of police. Therefore it ought to be used upon all

occasions where the law has established no specific remedy, and where in justice

and good government there ought to be one.” King v. Barker, 3 Burrow 1265,

1267 (1762) (Appendix D). Blackstone later explained the writ as a command

from the court “directed to any person, corporation, or inferior court of judicature

within the queen’s dominions, requiring them to do some particular thing therein

specified, which appertains to their office and duty . . .” WILLIAM BLACKSTONE, 3

COMMENTARIES ON THE LAWS OF ENGLAND 24-25 (3d ed. 1862) (Appendix E).

The writ of mandamus device was formally adopted into American law in

Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803), which came to the Court as a

petition for a writ of mandamus against then Secretary of State James Madison.

The Court explained Madison, in his role as Secretary of State, had certain duties

as “a public ministerial officer of the United States . . . and if he neglects or refuses

to perform them, he may be compelled by mandamus, in the same manner as other

persons holding offices . . .” Id. at 141.

-4-
 The Court in Marbury spoke of the important role of the writ of mandamus:

“The government of the United States has been emphatically termed a government

of laws, and not of men. It will certainly cease to deserve this high appellation, if

the laws furnish no remedy for the violation of a vested legal right.” Id. at 163.

The Court continued, “where a specific duty is assigned by law, and individual

rights depend upon the performance of that duty . . . the individual who considers

himself injured has a right to resort to the laws of his country for a remedy.” Id. at

166. The writ of mandamus is the device designed to protect the individual in

these circumstances. See id. The Court then mandated, “to render the mandamus a

proper remedy, the officer to whom it is to be directed, must be one to whom, on

legal principles, such writ may be directed; and the person applying for it must be

without any other specific and legal remedy.” Id. at 169.

The writ of mandamus has passed through history relatively unscathed. In

modern times it remains virtually the same as it was over 250 years ago—a

stopgap to protect individuals’ rights when they otherwise have no protection.

And, as in Marbury, a party seeking a writ of mandamus must show that (i) he has

no other adequate remedy at law and (ii) the act sought to be compelled is purely

ministerial. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.

2013); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 215 (Tex. Crim. App. 2003).

-5-
 “No adequate remedy at law” means either the relator truly has no other

recourse to seek vindication of his rights or, even if he technically does have a

possible remedy it is “so uncertain, tedious, burdensome, slow, inconvenient,

inappropriate, or ineffective as to be deemed inadequate.” Weeks, 391 S.W.3d at

122. “The ministerial-act requirement is satisfied if the relator can show a clear

right to the relief sought.” Id. It is available against any court or public official

compelled by law to take certain actions. Raesz v. Mitchell, 415 S.W.3d 352, 353

(Tex. App.—Fort Worth 2013, no pet.) (citing Anderson v. City of Seven Points,

806 S.W.2d 791, 793 (Tex. 1991) (“A writ of mandamus will issue to compel a

public official to perform a ministerial act”); United States v. Denson, 603 F.2d

1143, 1153 (5th Cir. 1979) (“The writ of mandamus is an order directing a public

official or public body to perform a duty exacted by law. It may be issued to

compel compliance with a variety of legal duties by a host of officials and

bodies.”).

B. Article 39.14(a) of the Texas Code of Criminal Procedure

Article 39.14 issues a clear directive to the State:

Subject to the restrictions provided by Section 264.408, Family Code,
and Article 39.15 of this code, as soon as practicable after receiving a
timely request from the defendant the state shall produce and permit
the inspection and the electronic duplication, copying, and
photographing, by or on behalf of the defendant, of any [of the
enumerated items of evidence].

TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (emphasis added).

-6-
 There is no dispute this statute requires the DA to disclose its evidence to the

defendant. The question presented in the instant case is when the DA’s duty to

disclose begins. The answer is found on the face of the statute. The DA’s duty to

disclose begins “as soon as practicable after receiving a timely request from the

defendant.” Id. There is no reference to the procedural posture of the case. See id.

There is no requirement the case be at a certain stage of development. See id. The

statute does not give the DA any ability to deny the request; its commands are

undeniably clear.

Pushback by district attorneys from these broad requirements is not

surprising. The “as soon as practicable” requirement is a dramatic change from the

previous law, which itself had been in effect since 1965. Under the old law,

Article 39.14 merely required the court to order the State to disclose its evidence

“before or during trial of a criminal action.” Id., amended by Act of May 16, 2013,

83rd Leg., R.S., ch. 49, § 2. Under this system, DA’s shared their files only if they

decided, as a matter of their own, self-regulated internal policies, to do so. Even

then, disclosure would oftentimes not occur until the case was far advanced in the

criminal justice process. Unfortunately, this policy also resulted in instances where

defendants did not ever receive full discovery in their cases, and innocent men and

women were convicted despite exculpatory evidence held by the State.

-7-
 In reaction to these miscarriages of justice, in 2013 the Texas Legislature

introduced Senate Bill 1611, known as the Michael Morton Act. Its author

outlined the objectives of the Bill: (i) promoting efficiency of the criminal justice

system; (ii) ensuring all defendants their “constitutional right to a defense”; and

(iii) preventing wrongful convictions. SENATE COMMITTEE ON CRIMINAL JUSTICE,

BILL ANALYSIS, S.B. 1611, 83rd Leg., R.S. (2013) (Appendix F). Testimony given

at both the Senate and House hearings likewise reiterated many times over the

objective of ensuring an open, transparent, efficient, and accurate criminal justice

system. The Michael Morton Act, 83rd Leg., R.S., HEARINGS BEFORE THE CRIM.

JUSTICE COMM. (Mar. 26, 2013) & THE JUDICIARY AND CIV. JURISP. COMM. (Apr.

29, 2013).

The “as soon as practicable” language of Article 39.14(a) was actually not in

the original bill. When the bill was originally introduced, it read “beginning no

later than 30 days after the initial appearance of the defendant the attorney

representing the state shall disclose . . .” S.B. 1611, INTRODUCED VERSION, March

8, 2013 (Appendix G). During Senate negotiations, however, the language was

intentionally broadened from “30 days after initial appearance” to “as soon as

practicable” after defendant’s request. See SEN. CRIM. JUSTICE COMM., SENATE

SUBCOMMITTEE REPORT, 83rd Leg., R.S. (Mar. 28, 2013) (Appendix H).

-8-
 This change was made because those involved in amending the bill

recognized “[c]ompetent representation requires analysis of the charges against the

accused, as well as an independent investigation and evaluation of the evidence

likely to be provided to the grand jury and/or admitted at trial.” TEXAS APPLESEED

& TEXAS DEFENDER SERVICE, TOWARDS MORE TRANSPARENT JUSTICE: THE

MICHAEL MORTON ACT’S FIRST YEAR 27 (2015) (Exhibit H) (emphasis added). In

reviewing the State’s evidence, “defense counsel can . . . conserve precious

criminal justice resources by seeking reduced charges or a no-bill at the grand jury

stage of the case.” Id. (emphasis added).

Contrary to the office policies of many elected district and county
attorneys, the Act contains only one condition for triggering the right
to this production: the receipt of a “timely request from the
defendant.” There is no reference to a case’s procedural posture or
reservation of the State’s right to deny access to specified materials
under certain circumstances. A request for discovery may be
submitted at any point in the proceedings against the accused, and
once it is received, the prosecution must respond “as soon as
practicable.” The plain reading also is reflected in the Act’s
legislative history. The original bill required discoverable information
to be disclosed “no later than 30 days after the defendant’s initial
appearance.” However, the clause was struck from the Senate
Committee Report and replaced by the current statutory language,
signifying that the Legislature considered and rejected the proposal to
require discovery at a specific point in the case’s life cycle.

Id. This legislative history explains the clear mandates of the statute. The

Legislature intentionally omitted trigger events for the statute apart from the

defendant’s request.

-9-
 C. Mandamus Compelling the State to Comply With the Mandatory
Provisions of Article 39.14 is Necessary to Protect Mr. Carrillo’s
Right to Discovery

In the case at bar, on April 22, 2015, Mr. Carrillo requested the State share

its discoverable evidence under 39.14 requirements. (Appendix B). Mr. Carrillo

allowed the State fourteen days to comply with his request. (See id.). Fourteen

days have come and gone, and the State has failed to provide any discovery. It has

indicated it will not comply with the statute until after indictment. (Appendix C).

The State’s refusal to comply with Article 39.14 is (i) an arbitrary (ii)

disregard of clear statutory mandate done (iii) in defiance of Legislative intent.

The State’s policy is arbitrary because neither the words “indictment” nor “grand

jury” appear anywhere in the text of Article 39.14. There is absolutely no

language in the statute indicating the case must be past the grand jury, or any other

specified stage, of the criminal proceedings. There is thus no basis for the State’s

conclusion that it does not have to recognize a defendant’s rights to discovery until

after it has made its case to the grand jury.

The State’s reasoning disregards clear statutory mandate because the statute

offers no room for maneuvering around its requirements: “as soon as practicable”

does not mean “after the grand jury indictment.” To the contrary, Black’s Law

Dictionary defines “practicable” as “reasonably capable of being accomplished;

feasible.” BLACK’S LAW DICTIONARY 543 (2d pocket ed. 2001).

- 10 -
 Simply put, the statute plainly mandates after a defendant has made his

39.14 request the DA must comply with the request as soon as it can. The DA in

Mr. Carrillo’s case interprets Article 39.14 to allow it to wait until after the grand

jury has indicted Mr. Carrillo before it chooses to come into compliance with

Article 39.14. This interpretation is wholly unfounded. Neither practicing

attorneys nor the courts entrusted with enforcement of the Legislature’s wishes can

tolerate such a reading of the law. See Tex. Comm. on Prof’l Ethics, Op. 646

(2014) (Appendix I) (“Under Rule 8.04(a)(12) [of the Texas Disciplinary Rules of

Professional Conduct] prosecutors are required to produce and permit the

inspection of their files, subject only to the limitations set forth in article 39.14.

Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose

conditions not found in article 39.14 before making the required disclosures”).

Finally, the State’s position defies legislative intent. As discussed earlier,

the Legislature originally did draft Article 39.14 so it would not be triggered until a

certain point in the proceedings, i.e. thirty days after the initial appearance. The

drafters intentionally removed that language, however, so defense attorneys could

have the ability to evaluate the evidence against their clients before the grand jury

proceedings, just in case such evidence could result in a no bill. The State’s

current stance advances a policy specifically considered and rejected by the

Legislature.

- 11 -
 Mr. Carrillo has a right to discovery. His right to discovery began after he

requested discoverable evidence from the State. The State is denying him his right

based on a position that contradicts the actual language and the statutory intent of

Article 39.14. Mr. Carrillo has no means of enforcing his discovery rights—there

is no procedure that will give him the immediate relief he is due other than a writ

of mandamus. See Weeks, 391 S.W.3d at 122.

Moreover, Article 39.14 commands “the state shall” produce discoverable

evidence as soon as practicable following the accused’s request. TEX. CODE CRIM.

PROC. ANN. art. 39.14(a) (emphasis added). Because the DA has no option to

ignore the statute’s requirements, Mr. Carrillo has a right to the relief he now

seeks. See id.; Weeks, 391 S.W.3d at 122. Accordingly, a writ of mandamus

directing the State to comply with the requirements of Article 39.14 is necessary to

the rights given to Mr. Carrillo by the Texas Legislature.

Mr. Carrillo has a pre-indictment right to discovery. See TEX. CODE CRIM.

PROC. ANN. art. 39.14(a). The DA has a specific duty assigned by law to turn over

its discovery as soon as practicable after the defendant requests it. Mr. Carrillo has

requested discoverable evidence, yet the DA has refused to honor that request. The

Court ought to issue a writ of mandamus compelling the DA to comply with

Article 39.14(a) of the Code of Criminal Procedure.

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APPENDIX C
Affidavit of Chuck Lanehart
with “Exhibit ‘A’” attached

Dated May 19, 2015
APPENDIX G
S.B. 1611, INTRODUCED VERSION, March 8, 2013.
 By:AAEllis, Duncan S.B.ANo.A1611

A BILL TO BE ENTITLED

1 AN ACT

2 relating to discovery in a criminal case.

3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

4 SECTIONA1.AAArticle 39.14, Code of Criminal Procedure, is

5 amended to read as follows:

6 Art.A39.14.AADISCOVERY

7 Sec.A1.AADISCLOSURE BY STATE.AA(a) Subject to the

8 restrictions provided by Article 39.15, beginning no later than 30

9 days after the initial appearance of the defendant the attorney

10 representing the state shall disclose to the defendant ’s counsel

11 and permit inspection, photocopying, and photographing of the

12 following materials and information in the possession, custody, or

13 control of all law enforcement agencies, investigatory agencies,

14 and prosecutors ’ offices, any other governmental entity, or any

15 non-governmental entity contracting for work with any government

16 entity involved in the investigation of the crimes alleged or in the

17 prosecution of the defendant,

18 (1)AAany evidence relevant to the defendant ’s guilt or

19 punishment;

20 (2)AAany written or recorded statement made by the

21 defendant, any witness, any law enforcement officer, or any other

22 person that is related to the case charged, including offense

23 reports by law enforcement or other government personnel and

24 electronically recorded statements, if any;

1
 S.B.ANo.A1611

1 (3)AAany written record containing the substance of any

2 oral statement that is made by the defendant and that is related to

3 the case charged;

4 (4)AAthe defendant ’s prior criminal record. If

5 disclosure of a specific document reflecting the defendant ’s

6 criminal history is not permitted by state or federal law, then the

7 content of the defendant ’s criminal history shall be disclosed in

8 writing. A judge shall on request issue an order requiring

9 disclosure of the records if a court order is required for

10 disclosure by state or federal law;

11 (5)AAany record of a criminal conviction or other

12 criminal history admissible for impeachment under the Texas Rules

13 of Evidence, of a witness the attorney representing the state

14 intends to call at the trial, or has reason to believe may be called

15 as a witness at trial by the State;

16 (6)AAany affidavit, warrant, or return pertaining to a

17 search or seizure in connection with the case;

18 (7)AAany physical or documentary evidence related to

19 the case charged that was obtained from or that belongs to the

20 defendant or that the attorney representing the state intends to

21 use against the defendant in the case charged and, on a showing of

22 materiality by the defendant, the opportunity to test that

23 evidence;

24 (8)AAthe names and addresses of the witnesses called to

25 present evidence under Rules 702, 703, and 705, Texas Rules of

26 Evidence;

27 (9)AAany document or recording produced by or for an

2
 S.B.ANo.A1611

1 expert witness related to the case charged; and

2 (10)AAany plea agreement, grant of immunity, benefit

3 promised or conferred, or other agreement for testimony or

4 assistance issued by the attorney representing the state or any law

5 enforcement officer or agency in connection with the case. [Upon

6 motion of the defendant showing good cause therefor and upon notice

7 to the other parties, except as provided by Article 39.15, the court

8 in which an action is pending shall order the State before or during

9 trial of a criminal action therein pending or on trial to produce

10 and permit the inspection and copying or photographing by or on

11 behalf of the defendant of any designated documents, papers,

12 written statement of the defendant, (except written statements of

13 witnesses and except the work product of counsel in the case and

14 their investigators and their notes or report), books, accounts,

15 letters, photographs, objects or tangible things not privileged,

16 which constitute or contain evidence material to any matter

17 involved in the action and which are in the possession, custody or

18 control of the State or any of its agencies. The order shall

19 specify the time, place and manner of making the inspection and

20 taking the copies and photographs of any of the aforementioned

21 documents or tangible evidence; provided, however, that the rights

22 herein granted shall not extend to written communications between

23 the State or any of its agents or representatives or employees.

24 Nothing in this Act shall authorize the removal of such evidence

25 from the possession of the State, and any inspection shall be in the

26 presence of a representative of the State.]

27 (b)AAThe state shall give to the defendant, at the beginning

3
 S.B.ANo.A1611

1 of jury selection, a written list of the names of all witnesses who

2 the State reasonably expects to call during trial, as well as the

3 criminal histories of those witnesses, in a manner consistent with

4 state and federal law. Following the disclosure of a witnesses

5 name, any party may request the court to order, on a showing of good

6 cause, the disclosure of the last known address for the witness. A

7 court, on request, may, and on a showing of good cause shall, order

8 earlier disclosure of the names and addresses of all witnesses who

9 the State reasonably expects to call during trial. [On motion of a

10 party and on notice to the other parties, the court in which an

11 action is pending may order one or more of the other parties to

12 disclose to the party making the motion the name and address of each

13 person the other party may use at trial to present evidence under

14 Rules 702, 703, and 705, Texas Rules of Evidence. The court shall

15 specify in the order the time and manner in which the other party

16 must make the disclosure to the moving party, but in specifying the

17 time in which the other party shall make disclosure the court shall

18 require the other party to make the disclosure not later than the

19 20th day before the date the trial begins].

20 (c)AAIf the defendant gives notice of an alibi under Section

21 2(c)(2), the attorney representing the state shall disclose to the

22 defendant ’s counsel as soon as practicable the names of the

23 witnesses of whom the state has knowledge and whom the state intends

24 to use to rebut the alibi or the testimony of any of the defendant ’s

25 witnesses called to establish the alibi.

26 (d)AAOn a timely basis, law enforcement and investigatory

27 agencies shall make available to the attorney representing the

4
 S.B.ANo.A1611

1 state and the attorney representing the state shall request a

2 complete copy of the complete files related to the investigation of

3 the crimes committed or the prosecution of the defendant for

4 compliance with this article. Investigatory agencies that obtain

5 information and materials listed in subsection (a) of this section

6 shall ensure that such information and materials are fully

7 disclosed to the prosecutor ’s office on a timely basis for

8 disclosure to the defendant.

9 (e)AAExcept as otherwise permitted by this article, this

10 article does not authorize the removal of physical evidence from

11 the possession of the state, and any inspection of physical

12 evidence shall be conducted in the presence of a representative of

13 the state. A court shall, when requested and as necessary under the

14 circumstances, order specific inspection procedures necessary to

15 protect the integrity of the evidence and the ability to inspect it

16 in a manner that does not compromise a defendant ’s ability to

17 maintain confidentiality of work product and the attorney client

18 privilege.

19 Sec.A2.AADISCLOSURE BY DEFENDANT. (a) After receiving the

20 initial disclosure under Section 1 from the attorney representing

21 the state, the defendant shall disclose to the attorney

22 representing the state and permit inspection, photocopying, and

23 photographing of the following materials and information:

24 (1)AAany written or recorded statement by a witness,

25 other than the defendant, that is related to the offense charged, if

26 the defendant intends to call the witness at trial;

27 (2)AAany physical or documentary evidence that the

5
 S.B.ANo.A1611

1 defendant intends to use in its case in chief and, on a showing of

2 materiality by the attorney representing the state, the opportunity

3 to test that evidence;

4 (3)AAthe names and addresses of the witnesses called to

5 present evidence under Rules 702, 703, and 705, Texas Rules of

6 Evidence; and

7 (4)AAany report produced by or for an expert witness the

8 defendant intends to call at the trial.

9 (b)AAThe defense shall give the state, at the beginning of

10 jury selection, a written list of the names of all lay witnesses who

11 the defense reasonably expect to call during trial. Following the

12 disclosure of a witnesses name, any party may request the court to

13 order, on a showing of good cause, the disclosure of the last known

14 address for the witness.

15 (c)AA(1) If requested in writing by the attorney representing

16 the state, a defendant who may assert one or more defenses or

17 affirmative defenses listed in Chapter 8 or 9, Penal Code, shall

18 provide the state with written notice that the defendant may assert

19 the statutory defense or affirmative defense. Notice shall be

20 provided by the defendant not later than the 30th day before the

21 date that jury selection begins or as soon as practicable after the

22 date the defendant receives a disclosure under Section 1 to which

23 the defense is responsive, whichever is later. If the State amends

24 the information or indictment or files a new information or obtains

25 a new indictment within 30 days of the beginning of jury selection,

26 the defendant shall be allowed not less than 10 days after being

27 served with an amended or new information or indictment, or having

6
 S.B.ANo.A1611

1 received actual notice of the amendment in open court, to amend or

2 supplement an existing notice or provide an initial notice. Any

3 notice provided under this subsection is for purposes of discovery

4 only and is not admissible at trial.

5 (2)AAIf requested in writing by the attorney

6 representing the state, and if the attorney representing the state

7 provides the defendant in such written request with the specific

8 date, time, and place of the alleged offense, a defendant who will

9 assert an alibi shall provide the state, not later than 20 days

10 before the beginning of jury selection, a written response

11 including the location at which the defendant claims to have been at

12 the time of the alleged offense and the names of the witnesses the

13 defendant intends to use to establish the alibi.

14 Sec.A3.AAEXCEPTIONS TO DISCLOSURE.AA(a) Neither the attorney

15 representing the state nor the defendant is required to disclose

16 materials or information that is:

17 (1)AArecorded proceedings of a grand jury, except as

18 required by the Texas Rules of Evidence, other law, or court order;

19 (2)AAa work product, meaning written materials drafted

20 by an attorney or the attorney ’s legal staff for their own use,

21 including witness examinations, voir dire questions, opening

22 statements,Aclosing arguments,Alegal research, or of records,

23 correspondence, reports, memoranda, orAnotes prepared by

24 theAattorney or by members of theAattorney ’s legal staffAto the

25 extent they containAthe opinions, theories, strategies, or

26 conclusions of theAattorney or theAattorney ’s legal staff.

27 Records, correspondence, reports, memoranda, or notes prepared by

7
 S.B.ANo.A1611

1 the prosecuting attorney, its agents,Aor by members of the

2 prosecuting attorney ’s legal staff are not work product as to any

3 portion that contains potentially favorable or exculpatory or

4 impeaching information as to guilt or punishmentAor information

5 that may mitigate punishment. Disclosure is also not requiredAof

6 any document of the attorney representing the defendant, or an

7 investigator or other agent of the attorney representing the

8 defendant that is made in connection with the investigation,

9 prosecution, or defense of the case; or

10 (3)AAprivileged under a rule of evidence, an express

11 statutory provision, the Texas Constitution, or the United States

12 Constitution.

13 (b)AAThis article does not authorize disclosure of the name,

14 address, or telephone number of a victim in violation of Chapter 57.

15 (c)AAA victim impact statement shall be provided to the

16 defendant at the beginning of jury selection if the person

17 completing the victim impact statement is disclosed by the State as

18 a potential witness on its witness list or there is reason to

19 believe that the person may otherwise testify at the trial. A

20 victim impact statement is subject to disclosure as any other

21 evidence or information if it contains exculpatory material.

22 Sec.A4.AACONTINUING DUTY TO DISCLOSE. If, subsequent to

23 compliance with this article or a relevant court order, a party

24 discovers additional material or information subject to

25 disclosure, the party shall immediately notify the other party ’s

26 counsel of the existence of the additional material or information.

27 Sec.A5AACERTIFICATE OF COMPLIANCE. Each time a party

8
 S.B.ANo.A1611

1 provides discovery, disclosure, or notice required or permitted by

2 this article or pursuant to court order, it shall file with the

3 court a Certificate of Compliance listing the items provided or

4 disclosed or the notice given. Any party may request any other

5 party to acknowledge receipt of any discovery, disclosure or notice

6 provided for by this article or required by court order and the

7 party receiving such discovery, disclosure, or notice shall, when

8 requested, acknowledge in writing, or on the record in open court,

9 the receipt of any discovery, disclosure, or notice. On request of

10 any party, the other party shall certify either in writing or on the

11 record in open court that, to the best of its knowledge and after

12 reasonable inquiry, the party has disclosed and made available all

13 items subject to discovery and disclosure and has provided all

14 required notices, and if not previously identified in a Certificate

15 of Compliance shall identify each item of provided discovery,

16 disclosure and notice. If further discovery is provided after the

17 filing of a Certificate of Compliance, an additional or

18 supplemental Certificate of Compliance shall be filed with the

19 court, or announced on the record in open court, identifying the

20 additional items of discovery, matters or information disclosed, or

21 notice given.

22 Sec.A6.AAEXCISION. (a)AAExcept as provided by Subsection

23 (b), if a portion of material or information is subject to discovery

24 under this article and a portion is not subject to discovery, only

25 the portion that is subject to discovery must be disclosed. The

26 disclosing party shall inform the other party ’s counsel that the

27 portion of material or information that is not subject to discovery

9
 S.B.ANo.A1611

1 has been excised and withheld. On request, the court shall conduct

2 a hearing to determine whether the reasons for excision are

3 justifiable. Material or information excised pursuant to judicial

4 order shall be sealed and preserved in the records of the court and

5 shall be made available to an appellate court in the event of an

6 appeal.

7 (b)AAExcision of a witness statement produced in accordance

8 with the Texas Rules of Evidence is governed by that rule.

9 Sec.A7.AAPROTECTIVE ORDERS. On a showing of good cause by

10 either party the court may at any time enter an appropriate

11 protective order that a specified disclosure be denied, restricted,

12 or deferred. "Good cause," for purposes of this section, includes

13 threats, harm, intimidation, or possible danger to the safety of a

14 victim or witness, possible loss, destruction, or fabrication of

15 evidence, or possible compromise of other investigations by law

16 enforcement or a defense offered by a defendant.

17 Sec.A8.AAIN CAMERA PROCEEDINGS. On request, the court may

18 permit to be made in camera an excision hearing under Section 5(a),

19 a showing of good cause for denial or regulation of a disclosure

20 under Section 6, or any portion of a proceeding. A verbatim record

21 shall be made of a proceeding in camera. If the court excises a

22 portion of the material or information or enters an order granting

23 relief following a showing of good cause, the entire record shall be

24 sealed and preserved in the records of the court and shall be made

25 available to an appellate court in the event of an appeal.

26 A court shall permit counsel for both parties to beApresent

27 at the in-camera excision hearing, or,Afor portions of the

10
 S.B.ANo.A1611

1 in-camera excision hearing as the circumstances require, unless

2 doing so would result in a violation of a privilege under the Rules

3 of Evidence or if the court cannot, through a protective or

4 confidentiality order,Aachieve the purposes of the in-camera

5 hearing. The court may issue such protective and confidentiality

6 orders as areAnecessary to prevent dissemination of proceedings

7 held in-camera and as to any material excised. A court order under

8 this section must only be as narrow as necessary to achieve the

9 purposes of the excision.

10 Sec.A9.AACONFERENCE. On request or motion of any party or on

11 its own motion, the court shall hold a discovery conference to

12 resolve any discovery, disclosure, or notice issue, to ensure that

13 the parties are aware of their respective discovery, disclosure,

14 and notice obligations under this article, or toAverify compliance

15 by each party with this article. Any party who has not received

16 required or requested discovery, disclosure, or notice, shall

17 request a discovery conference to be held not later than 20 days

18 before the beginning of jury selection to resolve any issue with

19 respect to the discovery, disclosure, or notice.

20 Sec.A10.AACOMPLIANCE; SANCTIONS. (a)AAThe disclosures

21 required under this article may be performed in any manner that is

22 mutually agreeable to the attorney representing the state and the

23 attorney representing the defendant or that is ordered by the court

24 in accordance with this article. The order issued by the court may

25 specify the time, place, and manner of making the required

26 disclosures.

27 (b)AAIf the court finds that a party has failed to comply with

11
 S.B.ANo.A1611

1 any of the provisions of this article, the court may order and

2 compel such party to provide the required discovery or disclosure,

3 grant a continuance, issue a protective order, take other

4 appropriate action as necessary under the circumstances to

5 accomplish the purposes of the required discovery or disclosure,

6 or, and only if other remedial alternatives have been exhausted,

7 prohibit the introduction of certain evidence, the calling of

8 certain witnesses, or other relief necessary to assure justice. The

9 court may not dismiss a charge under this subsection unless

10 authorized or required to do so by other law.

11 Sec.A11.AACOSTS. (a) All reasonable and necessary costs

12 related to a disclosure required under this article, including the

13 photocopying of materials, shall be paid by the requesting party,

14 except that an indigent defendant shall not be required to pay costs

15 provided for by this article. Costs under this article may not

16 exceed those provided for by the Texas Public Information Act.

17 (b)AAThe commissioners court of the county in which the

18 indictment, information, or complaint is pending may not, as a

19 result of any payment by the defendant of the costs required by this

20 article, reduce the amount of money provided by the county to the

21 office of the attorney representing the state, nor may it reduce the

22 amount of money provided to a public defender ’s office as a result

23 of costs paid to it under this article.

24 Sec.A12.AADISCLOSURE TO THIRD PARTIES. Before the date on

25 which the trial begins, the attorney representing the state, the

26 attorney representing the defendant, or an investigator, expert, or

27 other agent for the attorney representing the state or the attorney

12
 S.B.ANo.A1611

1 representing the defendant may not disclose, without obtaining

2 approval of the trial court, information or witness statements

3 received from the opposing party to any third party, other than to

4 an investigator, expert, consulting counsel, or other agent for the

5 attorney representing the state or the attorney representing the

6 defendant, as applicable. Information or witness statements

7 received under this article, and not otherwise made a part of a

8 public record as part of judicial proceedings, may not be made

9 available to the public without a court order permitting such

10 disclosure.

11 Sec.A13.AADISCLOSURE OF CERTAIN CONTACT INFORMATION. (a)

12 The attorney representing the state, without a protective court

13 order or a hearing before the court, may excise from an offense

14 report or other report any contact information of the alleged

15 victim of an offense that is listed under:

16 (1)AASection 3g, Article 42.12; or

17 (2)AAArticle 62.001(5).

18 (b)AAOn request of the defendant, and on a showing of good

19 cause, the court shall order disclosure to the defense of the

20 alleged victim ’s contact information subject to reasonable

21 limitations on further disclosure, which may include, as the

22 circumstances require, an orderAprohibiting the attorney

23 representing the defendant from disclosing the information to the

24 defendant or others.

25 Sec.A14.AAPRO SE DEFENDANTS. This article, including the

26 provisions regarding the nondisclosure of a witness statement or an

27 offense report by law enforcement personnel, applies to a defendant

13
 S.B.ANo.A1611

1 who has elected to proceed pro se only to the extent approved by the

2 court.

3 Sec.A15.AATHIRD PARTY DISCOVERY. A party may obtain, other

4 than from the office of the attorney representing the State, and

5 other than documents or items provided by the attorney representing

6 the state, documents from other persons, entities or third parties

7 by serving such person or entity with a subpoena for such documents

8 that provides a reasonable time and place for production of the

9 documents. A person or entity served with such a subpoena may itself

10 or through its counsel, before the time for compliance, object to or

11 seek protection from the request. The court may enter any order

12 appropriate under the circumstances to assure a reasonable time,

13 place, manner, or scope of production. Unless the court orders

14 otherwise, costs for production shall be paid by the party

15 requesting the production, provided that such costs shall not

16 exceed those allowed under the Texas Public Information Act.

17 Sec.A16.AACONFLICT OF LAW. To the extent of any conflict,

18 this article prevails over Chapter 552, Government Code.

19 SECTIONA2.AAThe change in law made by this Act applies to the

20 prosecution of an offense committed on or after the effective date

21 of this Act and to any prosecution initiated after the effective

22 date of this Act. The prosecution of an offense committed before

23 the effective date of this Act and the prosecution of an action

24 initiated before the effective date of this Act is covered by the

25 law in effect when the offense was committed or the prosecution

26 commenced, and the former law is continued in effect for this

27 purpose. For purposes of this section, an offense is committed

14
 S.B.ANo.A1611

1 before the effective date of this Act if any element of the offense

2 occurs before the effective date and a prosecution is commenced

3 before the effective date of this Act if a complaint, information or

4 indictment has been filed or obtained by the attorney representing

5 the state and the defendant has been arrested for such offense

6 before the effective date of this Act.

7 SECTIONA3.AAThis Act takes effect January 1, 2014.

15
 APPENDIX H
TEXAS APPLESEED & TEXAS DEFENDER SERVICE,
TOWARDS MORE TRANSPARENT JUSTICE: THE MICHAEL
MORTON ACT’S FIRST YEAR 27 (2015).
Towards More
Transparent
Justice
The Michael Morton Act’s First Year
The cover image depicts a blue bandanna that was re-
covered from the vicinity of Michael Morton’s home the
morning after his wife, Christine Morton, was murdered.
Although no physical evidence connected Michael to the
crime, Michael was charged with and eventually convicted
of this offense. Throughout his case, prosecutors withheld
other evidence collected during the original investigation
that pointed towards Michael’s innocence. Michael served
twenty-five years in prison before DNA testing obtained by
the Innocence Project in 2011 of this bandanna cleared
his name and implicated the true perpetrator: Mark Alan
Norwood, who was subsequently convicted of this crime.

In 2013, the 83rd Texas legislature passed the Michael Mor-
r
ton Act to prevent future wrongful convictions and reinforce
public trust in the criminal justice system.

The authors would like to extend our deep thanks to the
Innocence Project for the use of this image.

First Edition © 2015, Texas Appleseed and Texas Defender Service. All rights reserved, except as follows: Free copies of this report may
be made for personal use. Reproduction of more than five (5) copes for personal use and reproduction for commercial use are prohibited
without the written permission of the copyright owners. The work may be accessed for reproduction pursuant to these restrictions.
Timing of Discovery

T
HE PROVISION OF DISCOVERY AT AN EARLY POINT IN CRIMINAL PROCEEDINGS IS ESSENTIAL
to the operation of a fair, efficient, and accurate justice system. Too often, defense attor-
neys are unable to provide meaningful legal advice due to a lack of knowledge about the
prosecution’s case. Competent representation requires analysis of the charges against the
accused,129 as well as an independent investigation130 and evaluation of the evidence likely
to be provided to the grand jury and/or admitted at trial.131 Access to key information—
e.g., offense reports, witness names and witness statements—allows defense lawyers to
evaluate the strength of the prosecution’s case, locate and preserve evidence that is help-
ful to their clients’ defense,132 and assist an accused in making an informed decision about how to proceed.
For example, in an assault case, it is impossible for defense counsel to assess the degree of a defendant’s
criminal liability without studying eyewitness accounts and the complainant’s medical records. There may be

evidence that the accused acted in self-defense or conducive to a streamlined criminal justice system.
the complainant may have made exculpatory state- Yet, when coupled with unequal access to informa-
ments to medical professionals—none of which can tion, such promises of favorable treatment substan-
be uncovered unless the offense report, and the tially increase the risk that an innocent defendant
names of bystanders and the complainant are pro- will admit guilt for a crime he did not commit.133
duced by prosecutors to defense counsel. In review- Prompt access to the state’s evidence allows the de-
ing these materials, defense counsel can evaluate the fense to enter informed decisions regarding how to
charges filed against the defendant, enter meaning- proceed and minimizes this “innocence problem.”134
ful plea negotiations and conserve precious criminal Wrongful pleas are a particular concern in Texas,135
justice resources by seeking reduced charges or a where the overwhelming majority of criminal cases
no-bill at the grand jury stage of the case. 129130131132 are brought to a swift resolution. During the 2013 fis-
An even playing field during the initial phases of a cal year, 96 percent of all district court (felony) con-
case also increases the accuracy of plea dispositions. victions were obtained via a plea of guilty or nolo con-
Prosecutors frequently incentivize guilty pleas dur-
ing the initial phases of a criminal proceeding by of- 133. Although no study has been able to fully evaluate the frequency of “wrongful pleas” in the U.S.
criminal justice system, it is well-documented that individuals frequently plead guilty to offenses that
fering some concessions—typically a reduction in they did not commit. E.g., John H. Blume and Rebecca K. Helm, The Unexonerated: Factually Innocent
Defendants Who Plead Guilty, (2014) Cornell Law Faculty Working Papers, Paper 113 at 22 [hereinafter
the charges in exchange for bringing the case to a Blume & Helm] (detailing that indigent defendants accused of misdemeanor crimes frequently plead
guilty to crimes they did not perpetrate in order to cut their losses); Lucian E. Dervan and Vanessa A.
swift resolution. In theory, this bargaining process is Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s In-
nocence Problem, 103 J. CRIM. L. & CRIMINOLOGY 1, 34 (2013) (finding in a clinical study that 56.4% of
“innocent” participants accepted a plea offer).
134. See Eric Dexheimer, Delays create Texas’ unknown exonerees, AUSTIN-AM. STATESMAN, Apr. 19,
2014 (identifying twenty instances where defendants pled guilty to drug-related offenses and were
129. State Bar of Texas, Performance Guidelines for Non-Capital Criminal Defense Representation subsequently exonerated by DPS lab results).
Guideline 2.2(B)(1) (2011), reprinted in 74 TEX. BAR J. 616, 621 (July 2011) (stating counsel must 135. Texas has had several high-profile cases involving wrongful guilty pleas. Christopher Ochoa falsely
“[b]e familiar with the elements of the offense and the potential punishment range”). pleaded guilty to raping and murdering Nancy DePriest in order to avoid a death sentence, and later
130. Id. at 4.1-3. testified against Richard Danziger. Both men were exonerated 12 years later after DNA testing confirmed
131. Id. at 6.1(a) (“Under no circumstances should counsel recommend to the client acceptance of a that another man committed the crime. See State v. Oakley, 227 S.W.3d 58, 59 (Tex. 2007); see also Ex
plea agreement unless appropriate investigation and study of the case has been completed, including parte Ochoa, No. AP-74,246 (Tex. Crim. App. Dec. 19, 2001) (unpublished per curiam opinion); Ex parte
an analysis of controlling law and the evidence likely to be introduced at trial.”). Danziger, No. AP-74,244 (Tex. Crim. App. Dec. 19, 2001) (unpublished per curiam opinion). In Dallas,
132. JUSTICE PROJECT, EXPANDED DISCOVERY IN CRIMINAL CASES 5-6 (2007), available at http://www. innocent defendants pleaded guilty and were deported or sent to prison for possessing a controlled sub-
prearesourcecenter.org/sites/default/files/library/expandeddiscoveryincriminalcasesapolicyreview.pdf stance that, when finally analyzed, turned out to be powdered gypsum. Samuel Gross, et al., Exonerations
[hereinafter JUST. PROJ. REPORT]. in the United States, 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY. 523, 535 (2005).

TOWA RD S M OR E TRANSPAR E NT J U STI CE : THE MI CHAE L MORTON ACT’S FI R S T YE A R 27
 tendere (no contest),136 and nearly half of all disposed Statutory Requirements
cases—45 percent—were left pending for 90 days or
less.137 Misdemeanor cases are handled with similar Subject to the restrictions provided by Section
alacrity. 138 Realization of the Morton Act’s mandate 264.408, Family Code, and Article 39.15 of this
requires the prompt disclosure of discovery so that Code, as soon as practicable after receiving a timely
relevant discoverable information can be put to use request from the defendant the state shall produce
in all cases, not merely the ones that are brought and permit the inspection and electronic duplica-
to trial. This intent is reflected in the bill language, tion, copying, and photographing, by or on behalf of
which makes clear that the Act applies to cases re- the defendant[.]142
solved through plea bargaining and suggests that the
discovery requirements are not waiveable.139 Yet, our On its face, this text requires that prosecutors
research reveals that delays in the provision of discov- produce information to the defense at an early point
ery remain a pervasive issue in Texas and that a num- in the criminal proceedings against an accused.
ber of prosecutor offices ask defendants to waive their Contrary to the office policies of many elected dis-
rights to discovery as a condition of a plea bargain. trict and county attorneys, the Act contains only
In response to our Public Information Act re- one condition for triggering the right to this pro-
quests, the vast majority of prosecutor offices re- duction: the receipt of “a timely request from the
ported no written policy regarding when they will defendant.” There is no reference to a case’s proce-
accept and/or respond to a defendant’s request for dural posture or reservation of the State’s right to
discovery. Among those that sent written statements deny access to specified materials under certain
of their policies only 20140 set out standards that circumstances. A request for discovery may be sub-
comported with the statutory directive to furnish mitted at any point in the proceedings against the
discovery “as soon as practicable” after a request is accused, and once it is received, the prosecution
received.141 The remainder provide discovery only must respond “as soon as practicable.” This plain
at a specific point in the proceedings—e.g., upon the reading also is reflected in the Act’s legislative his-
filing of a formal charging instrument—or place con- tory. The original bill required discoverable infor-
tingencies on the production of discovery that are mation to be disclosed “no later than 30 days after
without any legal basis. As a result, many defendants the defendant’s initial appearance.”143 However,
are not receiving the discovery to which they are en- this clause was struck from the Senate Commit-
titled under the Morton Act. tee Report and replaced by the current statutory
language,144 signifying that the Legislature consid-
ered and rejected the proposal to require discovery
136. OFFICE OF COURT ADMINISTRATION, ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY: FISCAL YEAR
2013 40 (2014), available at http://www.txcourts.gov/media/467863/2013-Annual-Report9_26_14.pdf at a specific point in a case’s life cycle.
[hereinafter OCA FY 2013].
137. Disposition data regarding criminal cases in Texas is published on the Office of Court Administra- The term “as soon as practicable” requires that
tion’s website at http://card.txcourts.gov/ReportSelection.aspx (select “District Court Data Reports”
and “Age of Cases Disposed” from the drop down menus and click “Continue,” on the following screen prosecutors provide discoverable information to the
select the time period for September 2012 through August 2013) (last visited Dec. 15, 2014). The
Texas government’s fiscal year runs from September 1 of the previous year through August 31. defense as soon as reasonably possible in light of the
138. OCA FY 2013, supra note 135 at 53, 66 (stating that 97.3 percent of all cases disposed in statu-
tory county courts were resolved with a plea of guilty/nolo contendere, and 95.9 percent of all cases circumstances at hand—e.g., the amount of informa-
disposed in constitutional county courts were resolved with a guilty/nolo plea).
139. See TEX. CODE CRIM. PROC. art. 39.14 (parties cannot agree to lesser discovery requirements than tion, its format, and resources available for process-
the law mandates).
140. District attorney offices in Calhoun, Harris, Eastland, Kleberg, Leon, Lubbock, Midland, Milam, ing. Although no appellate court has interpreted the
Moore, Newton, Tarrant, and Taylor counties and the 69th (Dallam, Hartley, Moore & Sherman counties)
Judicial District had written policies that were consistent with their obligations under the Morton Act. phrase in the context of Article 39.14, civil courts
County attorney offices in Blanco, Cooke, Franklin, Hartley, Kennedy, Montgomery and Williamson
counties also had policies that conformed to the statute’s requirements. Dallas County defense lawyers have read “as soon as practicable” as requiring that
reported that discovery materials are made available upon request, regardless of when the request is
entered. Travis and Navarro counties do not accept discovery requests until specified periods of time a party undertake a particular course of action with-
have elapsed (5 or 10 days, depending on the underlying charge), which is an improper restriction on
the defense’s ability to request and access discoverable information.
141. In addition to these 20 jurisdictions, the Wood County District Attorney’s Office provides discovery
at or before the defendant’s arraignment. Depending on how this policy is implemented—i.e., if discov- 142. TEX. CODE CRIM. PROC. art. 39.14(a) (emphasis added).
ery is provided in an expeditious manner in all cases without regard to when the arraignment occurs it 143. S.B. 1611, 83rd Leg., R. Sess. (Tex. 2013) (originally filed version).
may be consistent with the statute. 144. Id. (Senate Committee Report).

28 W W W.T E X AS AP P LES EED. NET . W W W.TE X A S D E F E N D E R . O R G
APPENDIX I
Tex. Comm. on Prof’l Ethics, Op. 646 (2014).
 THE PROFESSIONAL ETHICS COMMITTEE
FOR THE STATE BAR OF TEXAS
Opinion No. 646

November 2014

QUESTION PRESENTED

As a condition for allowing criminal defense lawyers to obtain information in the
prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide
copies of the information to their clients and agree to waive court-ordered discovery in all of the
lawyers’ cases?

STATEMENT OF FACTS

A district attorney requires criminal defense lawyers to sign a confidentiality agreement
as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file”
arrangement). The agreement allows lawyers to obtain discoverable information in the
prosecutor’s file in exchange for their agreeing not to share copies of that information with
anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered
discovery in any of their clients’ cases.

DISCUSSION

Professional Ethics Committee Opinion 619 (June 2012) addressed the question of
whether a prosecutor may require and defense counsel may agree “that documents the prosecutor
produces to defense counsel may be shown to the defendant but that copies of the documents
may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an
obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to
disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the
disclosure of other evidence and as to restrictions that may be placed on evidence and
information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary
Rules of Professional Conduct permit such agreements, provided that, before signing such an
agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a
matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.”

Since this committee issued Opinion 619, the legislature passed and the governor signed
the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014,
the Act amended article 39.14 of the Texas Code of Criminal Procedure to require that
prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product
and other information (such as information about victims and children) that is made confidential
by law. Among other things, article 39.14 permits discovery and copying of all witness
statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of
a statement of a witness other than the defendant only after the witness has been passed for

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cross-examination during trial). Furthermore, article 39.14 does not require (or permit a
prosecutor to require) any concession by criminal defense lawyers or their clients in order to
receive such discovery nor must defendants seek a court order to secure the discovery mandated
by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as
practicable after receiving a timely request from the defendant . . . .”

Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is
accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient
evidence, and that any sentence imposed is based on all unprivileged information known to the
prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other
laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Because article 39.14 requires an “open file” policy by prosecutors without pre-
conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the
inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers
first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under
Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files,
subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule
8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the
required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619
obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring
defendants or their lawyers to agree to any restrictions on their use of materials in the file except
as provided in the act.

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply
with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures
required by the act. Therefore, prosecutors may not, as a condition for providing information in
their files they are obligated to disclose, require that criminal defense lawyers agree not to show
or provide copies of the information to their clients, nor require that criminal defense lawyers
agree to waive court-ordered discovery in all of their clients’ cases.

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