IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,137-01
IN RE CITY OF LUBBOCK, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 2020-421,049
IN THE 140 DISTRICT COURT OF LUBBOCK COUNTY
TH
CAUSE NO. 07-21-00070-CV
IN THE SEVENTH COURT OF APPEALS
NEWELL, J., delivered the opinion of the Court in which
HERVEY, RICHARDSON, YEARY, WALKER, and MCCLURE, JJ., joined.
KELLER, P.J., filed a concurring opinion in which KEEL, J., joined.
SLAUGHTER, J., dissented.
Does a trial court in a criminal proceeding have authority to hold
an ex parte hearing and enter an ex parte order compelling a third party
to produce documents without notice to the prosecutor representing the
City of Lubbock — 2
State? No. Ex parte proceedings require express authorization. The
trial court did not have express authorization to consider the ex parte
motion in this case or to enter the ex parte order. Therefore, we
conditionally grant the City of Lubbock’s Petition for a Writ of Mandamus.
Background
The facts of this case are largely undisputed and are primarily
procedural in nature. The Lubbock County Criminal District Attorney
charged the Real Party in Interest, Rodolfo Zambrano, with the offense
of sexual assault of a child. 1 That case is pending before the 140th
District Court in Lubbock County, Texas.
The Real Party in Interest filed a pre-trial “Ex Parte Motion for
Court Ordered Production of Documents and/or Things,” seeking a court
order for the production of documents held by the Lubbock Police
Department. The motion, which was filed under seal, referred to itself
as “an ex parte motion for third party discovery,” and requested that
the trial court order the Lubbock Police Department to “provide all
records” regarding J.G., a child, “including but not limited to: records
where she was reported to be a child victim of sexual abuse” to counsel
1
TEX. PENAL CODE § 22.011(a)(2). The Lubbock County Criminal District Attorney is the
exclusive representative of the state in all criminal matters before district and county courts
in Lubbock County. TEX. GOV’T. CODE § 44.252.
City of Lubbock — 3
for the Real Party in Interest. The motion further requested that the
trial court order the Lubbock Police Department to “maintain the
confidentiality of this request and not reveal it to the State.”
In support of the motion, the Real Party in Interest alleged that
the requested items were relevant and material to his defense without
providing any factual support for his claims. The Real Party in Interest
argued that the Code of Criminal Procedure, specifically the Chapter
authorizing subpoenas, infringed upon his constitutional rights by
requiring the defense to disclose information concerning his defense to
the State. He relied upon Ake v. Oklahoma 2 and Williams v. State 3 as
support for seeking the records ex parte, arguing that the defense
should not be required to disclose its investigative strategies or theories
through its request for discovery. Respondent, Presiding Judge of the
140th District Court, granted the motion and ordered the Lubbock Police
Department to provide the requested records to the Real Party in
Interest and not disclose the order to the Lubbock County District
Attorney’s Office.
2
Ake v. Oklahoma, 470 U.S. 68 (1985).
3
Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997).
City of Lubbock — 4
Relator, the City of Lubbock, filed a response to the ex parte order
along with a motion to stay the order. Relator argued that the request
exceeded the narrow scope of Ake and Williams, which are limited to
requests for the funding of experts for indigent defendants. Relator also
complained that the Real Party in Interest had not given notice of the
motion prior to the order in violation of due process and, to the extent
the Real Party in Interest was relying upon a constitutional challenge to
statutory discovery mechanisms, notice to the Attorney General was
required. 4 Relator argued that the Real Party in Interest must adhere
to the discovery procedures laid out in Articles 24.02, 24.03 and 39.14
of the Code of Criminal Procedure. Finally, Relator argued the records
requested were confidential as a matter of law and that there was no
constitutional right to their production. In response to Relator’s motion,
the trial court set the matter for an ex parte hearing. 5
At the hearing, the Real Party in Interest presented the trial court
with an amended motion which restated its substantive arguments for
the ex parte production of the requested records but requested that the
4
TEX. GOV’T CODE § 402.010.
5
This Court has not been provided a transcript of this hearing. However, it is undisputed that
Relator and the Real Party in Interest were present at the hearing, but a representative for
the Lubbock County Criminal District Attorney was not present and did not have notice of the
hearing.
City of Lubbock — 5
documents be produced to the trial court for an in camera inspection
rather than be provided to counsel directly. 6 Following the hearing, the
trial court vacated its prior order and reserved ruling on the amended
motion. In a post-hearing brief, the Real Party in Interest also argued
that the proceedings must be ex parte to protect his rights to due
process, effective assistance of counsel, and work product.
The trial court granted the Real Party in Interest’s amended motion
and ordered the Lubbock Police Department to produce the requested
records to the court for in camera inspection. The trial court again
ordered the parties to maintain the confidentiality of the ex parte order
by not revealing the existence of the motion or the order to the Lubbock
County Criminal District Attorney’s Office. Thereafter, Relator filed a
motion to stay the amended order pending the filing of a petition for a
writ of mandamus in the court of appeals, which the trial court granted.
Seventh Court of Appeals
Relator filed a petition for a writ of mandamus before the Seventh
Court of Appeals in Amarillo seeking to have the district court’s ex parte
order set aside. In two issues, Relator argued that the trial court abused
6
Specifically, the amended motion requested that the trial court “conduct an in camera
inspection of such records to ensure that all information to be turned over to defense is
material and relevant under Brady, CCP 39.14, and Watkins to the development of a defense
or mitigation.”
City of Lubbock — 6
its discretion by implicitly finding that provisions of the Code of Criminal
Procedure relevant to discovery are unconstitutional without requiring
that the Attorney General be made a party to the proceeding. Relator
also argued that the trial court abused its discretion by issuing an ex
parte order for discovery without adhering to statutory requirements for
discovery or providing notice to the State or other interested parties.
In response, the Real Party in Interest argued that his request falls
outside of Articles 24.02 or 39.14—or any statutory provision—such that
there was no constitutional challenge or finding necessitating the
involvement of the Attorney General. Rather, the Real Party in Interest
argued that his request was based on his constitutional rights such that
ex parte review by the trial court was appropriate and within the trial
court’s inherent authority even without specific statutory authorization.
The Real Party in Interest relied upon this Court’s holding in Williams as
support for his contention and argued additionally that his due process
right to present a defense and Sixth Amendment right to effective
assistance would be impeded but for the ex parte nature of the
proceedings. He also argued that the work-product doctrine required
the proceedings to be ex parte. Thus, he maintained that the trial court
did not err by failing to require notice to the Attorney General,
City of Lubbock — 7
conducting the proceedings ex parte, or by entering an ex parte order
for the production of the documents to be reviewed in camera.
The Seventh Court of Appeals denied Relator’s petition. 7 The court
of appeals held that Relator has no adequate remedy at law, as is a
prerequisite for mandamus relief, because Relator is not a party to the
underlying criminal proceeding. 8 Turning to the merits, the court of
appeals further found that notice to the Attorney General was not
required because the Real Party in Interest was not challenging the
constitutionality of any statute. 9 Rather, the court explained that the
Real Party in Interest based his request on the constitutional right to
due process. 10 The court concluded that Relator’s claim that Articles
24.02, 24.03 and 39.14 of the Code of Criminal Procedure are the
exclusive vehicles for such a request is the only claim that calls the
question of the constitutionality of those statutes in question. 11 Thus,
7
In re City of Lubbock, No. 07-21-00070-CV, 2021 WL 3930727 (Tex. App.—Amarillo Sep. 2,
2021, orig. proceeding) (mem. op.).
8
Id. at *2 (citing In re BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746 at *2
(Tex. App.—Dallas Apr. 14, 2014, orig. proceeding) (mem. op.) (“[m]andamus is proper
remedy for a trial court’s action against a non-party who has no right of appeal, but has
standing in the mandamus proceeding.”).
9
Id. at 5.
10
Id.
11
Id.
City of Lubbock — 8
the court overruled Relator’s claim that notice to the Attorney General
was necessary. 12
Next, the court of appeals addressed Relator’s argument that the
trial court exceeded its authority by conducting the proceedings and
ordering the production of documents ex parte and without notice to the
State. After laying out the Real Party in Interest’s arguments, the Court
noted that neither the Supreme Court in Ake nor this Court in Williams
or Rey v. State, 13 discussed the propriety of utilizing ex parte motions
to obtain documents and things like the request at issue here. However,
the court concluded that the use of ex parte proceedings to protect
defensive strategy has been widely accepted by the courts. 14 The court
of appeals held that the trial court acted within its authority when it
entered the ex parte order at issue and denied mandamus relief. The
court provided no further support, explanation, or example for its
conclusion that ex parte proceedings to protect defensive strategy has
been widely accepted.
12
Id.
13
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995).
14
In re City of Lubbock, No. 07-21-00070-CV, at *6.
City of Lubbock — 9
In a concurring opinion, Chief Justice Brian Quinn indicated he
would reach the same result but for a different reason. 15 The Chief
Justice noted that the trial court ordered the production of the requested
documents in camera but expressly reserved its decision on what to do
with the records once inspected. 16 Based upon this observation, Chief
Justice Quinn concluded that Relator’s arguments related to the
discovery of the documents and were premature. 17 Thus, Chief Justice
Quinn agreed the trial court had not abused its discretion. Chief Justice
Quinn also questioned Relator’s standing to challenge the scope of
discovery in a criminal proceeding outside its jurisdiction. 18 Chief Justice
Quinn also noted that the Lubbock County Criminal District Attorney
should have the opportunity to participate in the resolution of a
discovery dispute. 19 Relator now seeks review in this Court.
15
Id.
16
Id.
17
Id.
18
Id. at 7. Chief Justice Quinn’s concern regarding standing is well taken. However, Relator
had standing to contest the trial court’s order for the production of documents by virtue of
the fact that it was the entity ordered to produce documents in its possession. See Terrazas
v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (“To be entitled to mandamus, relators must
have a justiciable interest in the underlying controversy . . . A person need not be a party to
the underlying litigation in order to seek mandamus relief.”); see e.g. In re Union Pacific R.
Co., 6 S.W.3d 310, 311-12 (Tex. App.—Houston [14th Dist.] 1999).
19
Id. (“At the very least, the State should be afforded opportunity to participate in the
resolution of the discovery dispute, especially since the controversy is now part of the public
record.”). Chief Justice Quinn did not otherwise address the propriety of the ex parte nature
of the proceedings below.
City of Lubbock — 10
Petition for Mandamus
Relator seeks a writ of mandamus against the Seventh Court of
Appeals compelling it to vacate its denial of mandamus against the trial
court. In a single issue, Relator’s petition asks this Court to consider
whether Articles 24.02 and 39.14 of the Texas Code of Criminal
Procedure are the exclusive means by which a party may seek the
discovery of relevant information under the control of a third party.
The parties’ arguments are largely the same as those presented to
the court of appeals. Relator argues that the trial court’s authority to
enter discovery orders in the underlying criminal proceeding is limited
to the authority granted by Article 39.14 and, more generally, that by
entering the order at issue in this case, the trial court exceeded its
statutory and inherent authority. Relator also maintains that the
holdings in Ake and Williams are not applicable to the production of
documents requested and do not support the ex parte nature of the
request and underlying proceedings related to the request.
In response, the Real Party in Interest contends that provisions of
the Code of Criminal Procedure governing discovery and subpoenas are
simply two means, but not the only or exclusive means, of obtaining
information and that neither provision applies to the request for records
at issue. Rather, he contends he has a constitutional right to discovery,
City of Lubbock — 11
which supports the trial court’s authority to hold ex parte hearings
concerning the discovery of evidence not covered by Articles 24.02 and
39.14. He maintains that ex parte proceedings are required by the
work-product doctrine and necessary to protect his constitutional rights
to due process, to present a defense, and to the effective assistance of
counsel.
Companion Case and Amicus Briefing
In a related petition for a writ of mandamus, arising from the same
underlying criminal proceeding, Lubbock County Criminal District
Attorney K. Sunshine Stanek seeks mandamus relief from this Court
against the 140th District Court compelling it to vacate the ex parte
order at issue here. In her petition, the District Attorney argues that the
trial court exceeded its authority by ordering the ex parte production of
the requested records. The District Attorney argues that the State was
improperly excluded from the proceedings below and that ex parte
communications are prohibited unless expressly provided for by law.
She echoes the argument of Relator that neither Ake nor Williams
provides support for obtaining documents from a third party and notes
that no showing, like the one required for obtaining the appointment of
an expert ex parte, is required for discovery. Further, like the Relator in
City of Lubbock — 12
the instant petition, the District Attorney contends that Article 39.14
governs the discovery sought by the Real Party in Interest.
We note that the arguments made by the Lubbock County Criminal
District Attorney and the City of Lubbock are essentially the same, but
the District Attorney did not previously seek mandamus relief from the
court of appeals. 20 However, the District Attorney only became aware
of these proceedings when the court of appeals issued its opinion below.
As we explain in the companion case, issued today, rather than exercise
our original mandamus jurisdiction over the companion case, we will
treat this related petition as an amicus brief. 21
We also note that the State Prosecuting Attorney filed a brief as
amicus curiae in support of the petitions filed by Relator and the Lubbock
County Criminal District Attorney. 22 The State Prosecuting Attorney
argues that documents and other tangible things not yet in the
possession of a prosecutor’s office are not in the State’s possession for
20
See Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (petition for a writ of
mandamus should first be presented to the court of appeals absent a compelling reason not
to do so).
21
See State ex rel. Stanek, No. WR-93,160-01, slip op. at 6 (Tex. Crim. App. Jan. 25, 2023).
22
In response to the City of Lubbock and Lubbock District Attorney’s petitions, this Court
stayed the District Court’s order and held the motions for leave to file writs of mandamus in
abeyance. The Court invited the Real Party in Interest, District Court, and Seventh Court of
Appeals to respond to the Relators’ arguments within 30 days. Only the Real Party in Interest
filed a response.
City of Lubbock — 13
purposes of Article 39.14 discovery. However, the State Prosecuting
Attorney’s Office argues this limitation does not undermine the Relator’s
arguments that Articles 39.14 and 24.02 provide the exclusive means
for third-party discovery. To the extent that these arguments conflict
with positions taken by the Relator and the Lubbock County District
Attorney, we need not reach them.
Indeed, we need not reach the larger question of whether Articles
24.02 and 39.14 provide the exclusive means of discovery. 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 whether the ex parte nature of the proceeding was
expressly and constitutionally authorized. It was not.
Standard of Review
We review a court of appeals’ denial of mandamus relief against a
trial court de novo by reviewing the propriety of the trial court’s conduct
itself to determine whether the trial court’s order should be vacated. 23
To be entitled to mandamus relief, the record must establish that (1)
Relator has no adequate remedy at law and (2) that what it seeks to
23
In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (citing In re State ex rel. Wice v.
Fifth Judicial Dist. Court of Appeals, 581 S.W.3d 189, 193-94 (Tex. Crim. App. 2018) (“we
review the propriety of the trial court’s conduct itself by undertaking a de novo application of
the two pronged test for mandamus relief.”)).
City of Lubbock — 14
compel is a purely ministerial act, not an act involving a discretionary
judicial decision. 24 To satisfy the ministerial-act requirement, the relief
sought must be clear and indisputable such that its merits are beyond
dispute and there is nothing left to the exercise of discretion or
judgment. 25 A clear right to relief is shown when the facts and
circumstances dictate but one decision “under unequivocal, well-settled
(i.e., from extant statutory, constitutional, or case law sources), and
clearly controlling legal principles.” 26 When a trial court acts beyond the
scope of its lawful authority, a clear right to relief exists. 27 Mandamus
relief is available for a novel issue or one of first impression with
uncontested facts when the law points to but one clear result. 28 As our
sister court has phrased it, “a clear failure by the trial court to analyze
24
In re State ex. rel. Weeks, 391 S.W.3d 117, 123 (Tex. Crim. App. 2013).
25
Id.
26
Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011).
27
In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (granting mandamus
relief because it was “clear and indisputable that the [COVID-19] Emergency Order did not
confer upon the trial court the authority to conduct a bench trial without the States consent.”);
see also State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506 (Tex. Crim. App. 2011)
(concluding that mandamus relief was warranted where trial court did not have legal authority
to hold a hearing and acted beyond the scope of lawful authority).
28
Weeks, 610 S.W.3d at 122.
City of Lubbock — 15
or apply the law correctly will constitute an abuse of discretion, and may
result in appellate reversal by extraordinary writ.” 29
For example, in Joachim v. Chambers, the Texas Supreme Court
granted mandamus relief when a trial court refused strike a trial judge’s
testimony as an expert witness in a case over which the judge was still
a judicial officer. 30 The Court explained that such conduct violates
Canon 2 of the Texas Code of Judicial Conduct which specifically
prohibits a judge from testifying voluntarily in an adjudicative
proceeding as a character witness. 31 According to the Court, “[t]he
29
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (citing Joachim v. Chambers, 815
S.W.2d 234, 240 (Tex. 1991) (holding that the trial court clearly abused its discretion by
misinterpreting the Code of Judicial Conduct)); see also Dickens v. Court of Appeals for
Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 550 (Tex. Crim. App. 1987)
(“Therefore, we adopt the clear abuse of discretion standard when reviewing the mandamus
actions of the courts of appeals and apply it to the instant case.”); Houlihan v. State, 579
S.W.2d 213, 218 n. 7 (Tex. Crim. App. 1979) (“It is axiomatic that the writ of mandamus
may not be utilized to revise or correct an error in discretion committed in exercise of a judicial
duty unless in the particular case there is a clear abuse of discretion.”) (citing Womack v.
Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956)).
30
Joachim, 815 S.W.2d at 240. In the case, the Respondent, Hon. Eugene Chambers, was
presiding over a legal malpractice suit involving a settlement agreement that had fallen apart.
Id. at 235. Judge Goddard had presided over the underlying lawsuit that had given rise to
the failed settlement agreement. Id. He had been sitting by assignment for the elected judge
of the 11th District Court, Hon. William N. Blanton. Id. After a court of appeals determined
that the settlement agreement had not been rendered by Judge Goddard, parties filed a legal
malpractice action in the 11th District Court. Id. at 235-36; see also Buffalo Bag Co. v.
Joachim, 704 S.W.2d 482 (Tex. App.—Houston [14th Dist. 1986, writ ref’d n.r.e.). By that
time Judge Goddard had passed away, so the defendants to the lawsuit sought an affidavit
from Judge Blanton to give his expert opinion regarding whether a docket entry by Judge
Goddard was a judicial action or the action of an attorney. Joachim, 815 S.W.2d. at 236. The
mandamus action concerned the actions of Judge Chambers who was apparently set to
preside over the legal malpractice trial and was named as the Respondent in the mandamus
action.
31
Id. at 237-38.
City of Lubbock — 16
appearance of a judge as a witness threatens, rather than promotes,
public confidence in the integrity and impartiality of the judiciary.” 32
Based upon this ethical prohibition, the Court held that the trial court
“clearly abused his discretion” in refusing to strike the affidavit and
refusing to order the defendants not to call the judge as a witness and
granted mandamus relief. 33
Analysis
The question before this Court is whether the trial court lacked
authority to order the ex parte production of documents from a third-
party to the underlying criminal proceedings without notice to the
Lubbock County District Attorney’s Office upon an ex parte request from
the defendant in that criminal proceeding. As an initial matter, it is
undisputed that Relator would have no right to appeal the trial court’s
order at the conclusion of the underlying criminal proceeding as it is not
a party to that proceeding. The lower court correctly concluded that
mandamus was the proper remedy for a trial court’s action against a
32
Id. at 238.
33
Id.
City of Lubbock — 17
non-party. 34 The first prong necessary for mandamus relief is
satisfied. 35
To be entitled to relief under the second prong, Relator must be
able to show that it has a clear right to the relief of vacating the trial
court’s ex parte order. 36 Mandamus will issue if the trial court lacked
authority or exceeded its authority by entering the order. 37 As we will
discuss in greater detail below, Relator has established a clear right of
relief because the trial court was without authority to entertain an ex
parte request for third-party discovery. Likewise, it lacked authority to
enter an ex parte order for that discovery. First, there is no statutory
provision that grants a trial court express authority to consider a
discovery request in an ex parte proceeding. Second, the United States
Supreme Court decision in Ake v. Oklahoma and the Texas Court of
Criminal Appeals decision in Williams v. State regarding ex parte
proceedings for the appointment of defense experts have never been
34
In re City of Lubbock, No. 07-21-00070-CV, 2021 WL 3930727 at * 3-4 (citing In re
BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746 at *2).
35
State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 203 (Tex. Crim. App. 2003) (“Relator has
no right to appeal respondent’s order. We have decided that this satisfies the no adequate
legal remedy mandamus requirement”). The Real Party in Interest concedes that Relator
meets the first prong for mandamus relief.
36
Wice, 581 S.W.3d at 194.
37
Id; Ogg, 618 S.W.3d at 365; Watkins, 352 S.W.3d 493 at 506 (determining there is a
clear right to relief when trial court acts without legal authority).
City of Lubbock — 18
extended to cover criminal discovery as a matter of constitutional law.
Third, the underlying rationale justifying ex parte proceedings in Ake
and Williams does not extend to criminal discovery. Relator is thus
entitled to mandamus relief.
Ex Parte vs. In Camera
At the outset, we must clarify the distinction between an ex parte
communication and an in camera inspection. An ex parte
communication includes communication that concern matters between
a lawyer representing a client and a judicial officer and that occurs
outside of the presence and without the consent of other parties to the
litigation or their representatives. 38 “In camera,” on the other hand,
refers most often to action taken in a judge’s chambers. 39 Trial courts
can inspect evidence in camera when there is a dispute about whether
such evidence can be disclosed. 40
38
Retzlaff v. GoAmerica Comms. Corp., 356 S.W.3d 689, 694 (Tex. App.—El Paso, 2011)
(citing RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 113 cmt. c (2000)); see also
Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas, pet. ref’d) (“An ex parte
communication is one that involves fewer than all parties who are legally entitled to be present
during the discussion of any matter with the judge.”); Ex Parte Communication, Black’s Law
Dictionary (11th ed. 2019) (“A communication between counsel or a party and the court when
opposing counsel or party is not present – such communications are ordinarily prohibited”).
39
In Camera, Black's Law Dictionary (11th ed. 2019).
40
Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App. 1992); see also In re E.I. DuPont
de Nemours and Co., 136 S.W.3d 218, 223 (Tex. 2004) (“Generally, a trial court conducts an
in camera inspection to determine if a document is in fact privileged.”); In Camera Inspection,
Black's Law Dictionary (11th ed. 2019) (A trial judge’s private consideration of evidence).
City of Lubbock — 19
But in camera inspections are distinct from an ex parte proceeding.
While an in camera inspection takes place in the absence of the parties,
the proceeding is not an ex parte proceeding because both parties are
still involved in the hearing that results in the in camera inspection. The
request for disclosure itself is not confidential and both parties are given
the opportunity to argue the merits of whether or not particular evidence
should be disclosed. In this way, an in camera inspection is still part of
an adversarial proceeding and does not diminish a trial court’s
impartiality. An ex parte hearing, however, transforms the nature of
the proceeding by eliminating the participation of one of the parties and,
as will be discussed more fully below, must be expressly authorized by
law.
In his concurring opinion, Chief Justice Quinn asserted that
because the trial court ordered the documents produced for in camera
inspection, “the true issue involves the authority of the trial court to
order the delivery of the records to it for is review.” 41 We disagree. The
order for in camera inspection was still an ex parte order made as a
result of ex parte proceedings without the consent of or notice to the
Lubbock County District Attorney’s Office. The question before us is not
41
In re City of Lubbock, No. 07-21-00070-CV, at *6.
City of Lubbock — 20
whether a trial court could conduct an in camera inspection of the
requested documents, but whether the trial court had express authority
to conduct the ex parte proceeding and enter the ex parte order.
Ex Parte Communications are Prohibited Unless Expressly Authorized
American courts function in an adversarial system of
adjudication. 42 This is unlike the judge-dominated inquisitorial systems
of continental Europe and Latin America in that an adversary system
relies on a neutral and passive decision maker to adjudicate disputes
after they have been aired by the adversaries in a contested
proceeding. 43 As the late Supreme Court Justice Antonin Scalia
explained, “What makes a system adversarial rather than inquisitorial is
. . . the presence of a judge who does not (as an inquisitor does) conduct
the factual and legal investigation himself[.]” 44 Courts are essentially
passive instruments that do not and should not “sally forth each day
looking for wrongs to right.” 45
To that end, judges are prohibited from permitting or considering
ex parte communications from a party to pending litigation unless
42
See, e.g., United States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020).
43
See Stephan Landsman, The Adversary System: A Description and Defense 2 (1984).
44
McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).
45
Sineneng-Smith, 140 S.Ct. at 1579.
City of Lubbock — 21
expressly authorized by law. 46 The Texas Code of Judicial Conduct
provides:
A judge shall accord to every person who has a legal interest
in a proceeding, or that person’s lawyer the right to be heard
according to law. A judge shall not initiate, permit or consider
ex parte communications made to the judge outside the
presence of the parties between the judge and a party, an
attorney . . . or any other court appointee concerning the
merits of a pending or impending judicial proceeding . . . This
subsection does not prohibit . . . considering an ex parte
communication expressly authorized by law. 47
46
The Texas Supreme Court has held that mandamus relief may be appropriate when a
particular action by a judge is prohibited by a cannon of judicial conduct. See Joachim, 815
S.W.2d at 239-241 (prohibiting defendants from calling a trial court judge to testify as an
expert witness in the pending litigation because doing so violated Cannon 2 of the Code of
Judicial Conduct).
47
Tex. Code Jud. Conduct, Cannon 3(B)(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
G, app.B; Anderson v. State, 625 S.W.3d 128, 131 (Tex. Crim. App. 2021) (“judges are
ethically prohibited from receiving ex parte communications from a party.”). Every state in
the country has a similar provision prohibiting ex parte communications unless that
communication is expressly authorized by law or unless specific conditions are met (none of
which are present in this case). See Ala. Canons of Jud. Ethics, Canon 3(4); Alaska Code of
Jud. Conduct, Canon 3(7); Arizona Code of Jud. Conduct, Rule 2.9(A); Arkansas Code of Jud.
Conduct, Rule 2.9(A); Cal. Code of Judicial Ethics, Canon 3(7); Colorado Code of Jud. Conduct,
Rule 2.9(A); Conn. Code of Jud. Conduct, Canon 3(4); Fla. Code of Jud. Conduct, Canon
3(B)(7); Georgia Uniform Superior Court Rule 4.1; Georgia Code of Judicial Conduct, Rule
2.9(A); Hawaii Code of Jud. Conduct, Rule 2.9(a); Idaho Code of Judicial Conduct, Rule
2.9(A); Illinois Code of Jud. Conduct, Rule 63(5); Indiana Code of Jud. Conduct, Rule 2.9(A);
Iowa Code of Jud. Conduct, Canon 2, Rule 51:2.9(A); Kansas Code of Jud. Conduct, Canon
2; Rule 2.9(A); Kentucky Code of Jud. Conduct, Canon 2, Rule 2.9(A); Louisiana Code of
Judicial Conduct, Canon 3(6); Maine Code of Jud. Conduct, Canon 2, Rule 2.9(A); Maryland
Code of Judicial Conduct Rule 18-102.9(a); Massachusetts Code of Jud. Conduct, Canon 2,
Rule 2.9(A); Michigan Code of Judicial Conduct, Canon 3(A)(4); Minnesota Code of Jud.
Conduct, Canon 2, Rule 2.9(A); Mississippi Code of Jud. Conduct, Canon 3(B)(7); Missouri
Code of Jud. Conduct, Canon 2, Rule 2-2.9(A); Montana Code of Jud. Conduct, Canon 2, Rules
2.9 & 2.10; Nebraska Code of Jud. Conduct, Canon 2, § 5-302.9(A); Nevada Code of Jud.
Conduct, Canon 2, Rule 2.9(A); New Hampshire Code of Jud. Conduct, Canon 2, Rule 2.9(A);
New Jersey Code of Jud. Conduct, Canon 3, Rule 3.8; New Mexico Code of Jud. Conduct, Rule
21-209(A); New York Code of Jud. Conduct, Canon 3(6); North Carolina Code of Jud. Conduct,
Canon 3(A)(4); North Dakota Code of Jud. Conduct, Canon 2, Rule 2.9(A); Ohio Code of Jud.
Conduct, Canon 2, Rule 2.9(A); Oklahoma Code of Jud. Conduct, Canon 2, Rule 2.9(A);
Oregon Code of Jud. Conduct, Rule 3.9(A); Pennsylvania Code of Jud. Conduct, Canon 2, Rule
2.9(A); Rhode Island Code of Jud. Conduct, Canon 2, Rule 2.9(A); South Carolina Code of
Jud. Conduct, Canon 3(B)(7); South Dakota Code of Jud. Conduct, Canon 3(B)(7); Tennessee
Code of Jud. Conduct, Canon 2, Rule 2.9(A); Utah Code of Jud. Conduct, Canon 2, Rule 2.9(A);
City of Lubbock — 22
Likewise, lawyers are prohibited from communicating with judges
concerning pending matters other than as permitted by law. 48 The
purpose behind prohibiting ex parte communications is to preserve
Vermont Code of Jud. Conduct, Canon 2, Rule 2.9(A); Virginia Canons of Jud. Conduct, Canon
1(J); Washington Code of Jud. Conduct, Canon 2, Rule 2.9(A); West Virginia Code of Jud.
Conduct, Canon 2, Rule 2.9(A); Wisconsin Code of Jud. Conduct, Ch. 60, Supreme Court Rule
60.04(1)(g); Wyoming Code of Jud. Conduct, Canon 2, Rule 2.9(A). The same is true of
federal courts and the District of Columbia. See Code of Conduct Canon 3A(4); District of
Columbia Rules of Jud. Conduct, Rule 2.9(A).
48
A lawyer shall not:
(b) except as otherwise permitted by law and not prohibited by the applicable rules of
practice of procedure, communicate or cause another to communicate ex parte with a
tribunal for the purpose of influencing that entity or person concerning a pending
matter other that:
(1) In the course of official proceedings in this cause;
(2) In writing if he promptly delivers a copy of the writing to opposing counsel
or the adverse party if he is not represented by a lawyer;
(3) Orally upon adequate notice to opposing counsel or to the adverse party if
he is not represented by a lawyer.
Tex. Disciplinary Rules Prof’l Conduct 3.05, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
G, app. A-1. Every state in the country as well as the District of Columbia has a similar
provision. See Rule 3.5, Ala. R. Prof. Cond.; Alaska R. Prof. Conduct 3.5; Ariz. Sup. Ct. Rule
42, RPC ER 3.5; Arkansas Rules of Prof. Conduct, Rule 3.5; California Rules Prof. Conduct,
Rule 3.5; Colo. RPC 3.5; Conn. R. Prof. Conduct, Rule 3.5; DEL. LAWYERS' RULES OF PROF'L
CONDUCT R. 3.5; R. Regulating Fla. Bar 4–3.5; Ga. Bar Rules and Regs., Rule 4–102, RPC
Rules 3.5; HRPC 3.5; I.R.P.C. Rule 3.5; Ill. R. Prof. Conduct R. 3.5; Ind. Professional Conduct
Rule 3.5; Iowa R. Prof'l Conduct 32:3.5; Kan. Sup. Ct. R. 240, KRPC 3.5; Ky. SCR 3.130(3.5);
La. R. Prof. Conduct 3.5; M. R. Prof. Conduct 3.5; Md. Rule 19-303.5; Mass. R. Prof. C. 3.5;
MRPC 3.5; Minn. R. Prof. Conduct 3.5; Miss. R. Prof. Conduct 3.5; Mo. S. Ct. R 4-3.5; M. R.
Pro. C. 3.5; Neb. Ct. R. of Prof. Cond. § 3–503.5; Nev. RPC 3.5; N.H.R. Prof. Conduct 3.5;
N.J. RPC 3.5; Rule 16-305 NMRA; Rules of Professional Conduct [22 NYCRR 1200.0] Rule 3.5;
N.C. Rev. R. Prof. Conduct 3.5; N.D.R. Prof. Conduct 3.5; Ohio Prof. Cond. R. 3.5; OK Rules
of Prof. Conduct, Rule 3.5, 5 O. S. A. Ch. 1, App. 3-A; Oregon Rules of Prof. Conduct, Rule
3.5; Pa. Rules of Prof. Conduct, Rule 3.5, 42 Pa.C.S.A; Rhode Island Sup. Ct. Rules, Art. V,
Rules of Prof. Conduct, Rule 3.5; Rule 407, SCACR, Rules of Prof. Conduct, Rule 3.5; SDCL
RPC, App, Ch. 16-18 Rule 3.5; Tn. Sup. Ct. Rules, Rule 8, RPC 3.5; UT Rules of Prof. Conduct,
Rule 3.5; Vt. Rules Prof. Cond., Rule 3.5; Va. R. S. Ct. PT 6 § 2 RPC Rule 3.5; Wa. RPC 3.5;
Wv. Rules of Prof. Conduct Rule 7.3; Wi. SCR 20:3.5; Wyo. R. Prof. Conduct, Rule 3.5; DC
Rules of Prof. Conduct, Rule 3.5.
City of Lubbock — 23
judicial impartiality and ensure that all legally interested parties are
given their full right to be heard under the law. 49 Ex parte
communications are so disfavored that, in some instances, an ex parte
communication with a tribunal may even amount to a criminal offense. 50
The default understanding is that the parties should not
communicate with the trial court regarding pending matters before the
court without the presence of all parties. Absent express authorization,
a trial court is not authorized to must not consider ex parte
communications from one party without notice to the other concerning
matters pending before court. While the Code of Criminal Procedure
recognizes and expressly authorizes ex parte communications in some
instances, 51 there is no statutory provision that expressly authorizes an
49
Tex. Code Jud. Conduct, Cannon 3(B)(8); see also Youkers, 400 S.W.3d at 206 (“An ex
parte communication is one that involves fewer than all parties who are legally entitled to be
present during the discussion of any matter with the judge . . . Ex parte communications are
prohibited because they are inconsistent with the right of every litigant to be heard and with
the principle of maintaining an impartial judiciary.”) (internal citations omitted); see also
Joachim, 815 S.W.2d at 238 (explaining that mandamus relief was appropriate to strike a
judge’s expert testimony because allowing a judge to testify as an expert in a case in which
he was a judicial officer threatened public confidence in the integrity and impartiality of the
judiciary).
50
TEX. PENAL CODE § 36.04 (“A person commits an offense if he privately addresses
a[n]...argument, or other communication to any public servant who exercises or will exercise
official discretion in an adjudicatory proceeding with an intent to influence the outcome of the
proceeding on the basis of considerations other than those authorized by law”); see also
United States Gov’t. v. Marks, 949 S.W.2d 320, 325 (Tex. 1997) (“we note that the law in
this State, as in most jurisdictions, looks upon ex parte proceedings with extreme disfavor.”).
However, this observation should not be taken to suggest that Section 36.04 is applicable to
the circumstances in this case.
51
See, e.g., TEX. CODE CRIM. PROC. arts. 18A.055(c) (Application for Interception Order);
18A.102 (Judicial Determinations Required for Issuance of Interception Order); 18A.355
City of Lubbock — 24
ex parte proceeding related to a criminal defendant’s discovery request.
To the extent that the Real Party in Interest argues that a trial court’s
inherent authority can provide express authorization to proceed ex
parte, we reject it. To do otherwise would render meaningless the
limitation placed upon trial courts regarding ex parte communications.
Ake and Its Progeny Do Not Provide Authority for The
Trial Court’s Ex Parte Hearing or Order
In Ake v. Oklahoma, the Supreme Court held that due process
entitles an indigent defendant to the appointment of a psychiatrist to
assist in his defense when he has made a preliminary showing that
sanity at the time of the offense was likely to be a significant factor at
trial. 52 The Supreme Court reasoned that the due process guarantee of
fundamental fairness mandated that a defendant could not be denied
the opportunity to meaningfully participate in a judicial proceeding in
which his liberty is at stake simply because he is indigent. 53 The
Supreme Court noted that the basic tools of an adequate defense must
be provided to indigent defendants to implement the principle that
(Notice and Disclosure of Interception Application, Interception Order, and Intercepted
Communications). Likewise, the Family Code, Chapter 83 provides for temporary ex parte
orders for protection. TEX. FAM. CODE. ANN. § 83.001 (stating requirements for issuing
temporary ex parte protective order).
52
Ake, 470 U.S. at 83.
53
Id. at 76.
City of Lubbock — 25
indigent defendants have an adequate opportunity to present their
claims fairly within the adversarial system. 54 Ultimately, the Supreme
Court held in Ake that when a defendant demonstrates to the trial judge
that his sanity at the time of the offense is likely to be a significant factor
at trial, the State must at a minimum assure the defendant access to a
competent psychiatrist to assist in the evaluation, preparation, and
presentation of the defense. 55
Notably, Ake makes only a single reference to the required
threshold showing to justify the ex parte appointment of a defense
expert. 56 The focus of the case was the appointment of experts, not ex
parte proceedings concerning pre-trial discovery. Unlike Ake, this case
does not involve a request for expert assistance, nor does it involve the
due process concerns at issue in Ake, namely providing indigent
defendant’s meaningful access to justice. 57
54
Id. at 77.
55
Id. at 83.
56
Id. at 82-83 (“When the defendant is able to make an ex parte threshold showing to the
trial court that his sanity is likely to be a significant factor in his defense, the need for the
assistance of a psychiatrist is readily apparent.”); Williams, 958 S.W.2d at 192 (“While the
Supreme Court’s suggestion that the threshold showing should be made ex parte is dicta, it
is consistent with the due process principles upon which Ake rests).
57
Id. at 85.
City of Lubbock — 26
In Williams v. State, this Court specifically held that an indigent
defendant is entitled, upon proper request, to make his Ake motion for
expert assistance ex parte. 58 The defendant in Williams filed a pretrial
“Motion for Leave to File Motion for Expert Assistance of a Psychiatrist
Ex Parte.” 59 The trial court compelled the defendant, over objection, to
provide a copy of his motion and its supporting affidavit from a
psychotherapist to the State. 60 We concluded in Williams that the trial
court erred in overruling the defense’s request to present his Ake motion
for the assistance of an expert ex parte. 61 We reasoned that if the
motion and hearing were not ex parte, the defendant would be forced
to choose between foregoing the appointment of an expert, to which he
is constitutionally entitled to upon a proper showing, or disclosing to the
State details of his defensive theories. 62 We concluded this would be
58
Williams, 958 S.W.2d at 194 (holding that the disclosure of Ake information prior to trial
did not harm the defendant but sustaining the point of error as to the punishment phase of
the trial during which the defense’s expert testified).
59
Id. at 191.
60
Id. at 192. It is worth nothing that, to the extent the Real Party in Interest seeks to make
a good faith argument for an extension of the law to create authority for ex parte discovery
proceedings, he could have proceeded as the defendant did in Williams. In Williams, the
defendant filed a motion for leave to file his ex parte motion thereby preserving the issue for
appellate review. Though he provided notice to the State of the desire for an ex parte hearing,
he did not reveal any underlying support for the request for an expert until the motion was
denied by the trial court. Id. at 191-92.
61
Id. at 194
62
Id. at 193.
City of Lubbock — 27
contrary to Ake’s concern that an indigent defendant (who can show he
is entitled to an expert) have meaningful access to justice and would
undermine the work-product doctrine. 63 Because appointment of an
expert pursuant to Ake requires a preliminary showing to support the
request, defendants are entitled to make that showing ex parte so that
they may access the due process right to an expert upon satisfying the
threshold showing without disclosing defensive theories or confidential
information. 64
Neither Ake nor Williams has been extended beyond the context
of expert assistance and appointment. For example, in Rey v. State,
which was relied upon by the court of appeals, this Court determined
that while Ake itself was limited to the issue of insanity, it is not limited
to psychiatric experts but rather could apply to the appointment of a
forensic pathologist. 65 Although we acknowledged Ake extends beyond
63
Id. (“We decline to hold that in order for an indigent defendant to avoid himself of one of
the “basic tools of an adequate defense,” he may be compelled to disclose defensive theories
to the prosecution”).
64
See Ex parte Jimenez, 364 S.W.3d 866, 881-82 (Tex. Crim. App. 2012) (“Before an indigent
defendant is entitled to appointment and payment by the State for expert assistance, he must
make a pretrial “preliminary showing” that is based upon more “than undeveloped assertions
that the requested assistance would be beneficial.” Thus, in Texas, an indigent defendant will
not be entitled to funding for experts absent adequate factual support in the written motion
that he presents to the trial judge.”).
65
Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995) (“We hold only that the
appointment of a pathologist is not per se excluded from the confines of Ake); see also Taylor
v. State, 939 S.W.2d 148, 152 (Tex. Crim. App. 1996) (reasoning that the tenets of Ake
could, in principle, require the appointment of a DNA expert to assist the defense); Griffith v.
City of Lubbock — 28
the appointment of psychiatric experts, we maintained that the
necessity of appointment under Ake depends upon whether the
defendant has satisfied the threshold showing. 66 And even with that
slight extension of Ake, our holding in Rey still remained contextually
bound to the issue of expert assistance.
This Court cannot find a single example, nor has the Real Party in
Interest pointed to one, from the United States Supreme Court or this
Court interpreting Ake or Williams to authorize ex parte discovery
proceedings. 67 Neither Ake nor Williams purports to apply beyond the
State, 983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (“it is now without question that Ake
requires the appointment of an expert regardless of his field of expertise” (citing Rey, 897
S.W.2d at 338).
66
Rey, 897 S.W.2d at 338. As an aside, we have also limited the scope of Ake as it relates
to the appointment of experts. For example, in Rosales v. State, this Court disagreed with a
defendant’s contention that Ake supported his motion to accompany his trial counsel to the
crime scene because Ake concerns when a trial court is constitutionally required to appoint
experts to assist the defense. Rosales v. State, 4 S.W.3d 228, 232 (Tex. Crim. App. 1999);
Cf. McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) (holding indigent defendant
entitled to the appointment of investigator/chemist to inspect cocaine pursuant to Ake); see
also Clark v. State, No. 09-99-341-CR, 2000 WL 1160470 at *1 (Tex. App.—Beaumont Aug.
16, 2000, pet. ref’d) (per curiam) (not designated for publication) (concluding Ake does not
apply to motion to interview State’s witness because it “concerns the due process right to
access to an expert to aid in the defendant and does not create a general right to discovery.”)
(citing Rosales, 4 S.W.3d at 232). In another instructive example, we concluded a trial court
properly refused a request, pursuant to Ake, for a jury consultant concluding that a jury
consultant is not a “basic” tool of the defense because jury selection is part of an “attorney’s
stock-in-trade.” Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999) (“Although a
jury-selection expert’s assistance would no doubt be helpful in nearly every case, such
assistance is a luxury, not a necessity.”). These examples show that Ake is not as elastic as
the Real Party in Interest suggests.
67
From the United States Supreme Court’s citations to Ake: Kahler v. Kansas, 140 S.Ct. 1021,
1028 (2020) (holding due process does not require states to adopt an insanity test that turns
on a defendant’s ability to recognize that his crimes are morally wrong and citing Ake for its
recognition that “uncertainties about the human mind loom large.”); McWilliams v. Dunn, 137
S.Ct. 1790, 1801 (2017) (holding the state failed to meet obligation under Ake to provide
City of Lubbock — 29
defendant with access to a mental health expert to assist the defense); United States v. Ruiz,
536 U.S. 622, 631 (2002) (noting Ake’s due process considerations (1) the nature of the
private interest at stake (2) the value of the additional safeguard (3) the requirement’s impact
on the government and concluding these factors argue against the “right” to disclosure of
impeachment information prior to entering a plea agreement); Kansas v. Crane, 534 U.S.
407, 413 (2002) (citing Ake only for its recognition that psychiatry is not an “exact science”
and holding that the constitution does not allow civil commitment without any lack of control
determination); Kansas v. Hendricks, 521 U.S. 346, 359 (1997) (finding state civil
commitment act satisfies “substantive” due process requirements and citing Ake only for the
proposition that “psychiatrists disagree widely and frequently on what constitutes mental
illness”); Tuggle v. Netherland, 516 U.S. 10, 12-14 (1995) (Ake error in failing to provide
indigent capital defendant the assistance of an independent psychiatrist is not necessarily
excused by the existence of valid aggravated factor and finding that the Ake error prevented
the petitioner from developing his own psychiatric evidence to rebut the State’s and enhance
his mitigation defense); Simmons v. South Carolina, 512 U.S. 154, 165 (1994) (holding trial
court’s refusal to instruct jury that alternative sentence of life imprisonment carried with it no
possibility of parole violated due process and citing Ake’s holding regarding the appointment
of an expert as an example of fundamental due process requirement); Medina v. California,
505 U.S. 437, 444-45 (1992) (holding that statute requiring party asserting incompetency
have the burden of proving incompetency does not violate due process but declining to apply
the due process framework relied upon in Ake); Smith v. Murray, 477 U.S. 527, 536 (1986)
(holding that petitioner’s complaint that psychiatrist’s testimony violated his privilege against
self-incrimination was defaulted and rejecting claim that default should be excused as novel
because the legal basis for the complainant was available without reliance upon Ake); Caldwell
v. Mississippi, 472 U.S. 320, 323 n.1 (1985) (finding there was no Ake violation from the trial
court’s failure to appoint various experts because the defendant offered “little more than
undeveloped assertions that the requested assistance would be beneficial.”)
The United States Supreme Court has relied upon Ake outside of the context of the
appointment or use of psychiatric experts when applying the portion of Ake that addressed
the availability of federal habeas review, but it has never extended the holding in Ake to
discovery requests. Foster v. Chatman, 578 U.S. 488, 497-98 (2016) (citing Ake for the
procedural proposition that when the application of a state habeas law bar “depends on a
federal constitutional ruling, the state-law prong of the court’s holding is not independent of
federal law, and our jurisdiction is not precluded.”); Smith v. Texas, 550 U.S. 297, 315 (2007)
(same); Stewart v. Smith, 536 U.S. 856, 860 (2002) (same); Stewart v. Smith, 534 U.S.
157, 158 (2001) (same); Coleman v. Thompson, 501 U.S. 722, 741 (1991) (same); Int’l
Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 388 (1986) (same).
From this Court’s citations to Ake: Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. 2020)
(trial court did not abuse discretion in rejecting motion for new trial based on failure to grant
funds for an additional punishment expert); Ehrke v. State, 459 S.W.3d 606, 614-15 (Tex.
Crim. App. 2015) (appointment of an expert for an indigent defendant may be required in
some circumstances as recognized in Ake but the State is not required to purchase for an
indigent defendant all the assistance that his wealthier counterpart might buy and must make
a preliminary showing of significant issue which the defendant did not do) (superseded on
other grounds); Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) (defendant
forfeited habeas review of Ake due process claim for expert assistance by failing to file a
proper written motion/ensuring it was ruled on, noting that Williams reiterated the importance
City of Lubbock — 30
of presenting affidavits or information to make required showing, and also did not show that
counsel was ineffective for failing to file a written Ake request for additional funding for
experts); Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) (pursuant to Ake, Applicant
was entitled to competent expert assistance, which he received, but not necessarily the expert
of his choice); Ex parte Briggs, 187 S.W.3d 458, 468-69 (Tex. Crim. App. 2005) (granting
habeas relief based, in part, on trial counsel’s failure to request state-funded expert assistance
under Ake constituted deficient performance); Ex parte Potter, 21 S.W.3d 290, 296 (Tex.
Crim. App. 2000) (holding due process requires a defendant be sufficiently mentally
competent to consult with counsel in extradition proceedings and citing Ake for the proposition
that due process requires an ability to consult with counsel as to identity and presence in the
demanding state at the time of the alleged offense); Wright v. State, 28 S.W.3d 526, 532
(Tex. Crim. App. 2000) (finding defendant was not denied expert assistance pursuant to Ake
and trial court did not abuse discretion by denying continuance to allow expert additional time
to review evidence) (superseded by statute on separate grounds); Busby v. State, 990 S.W.2d
263, 271 (Tex. Crim. App. 1999) (holding Ake did not require jury consultant to be appointed
for an indigent defendant because that was not a “basic” tool of the defense and the trial
court could have reasonably found the appointment of an additional drug abuse expert was
unnecessary); Rosales v. State, 4 S.W.3d 228, 232 (Tex. Crim. App. 1999) (Ake does not
apply to defendant’s request to be allowed to accompany attorney to the crime scene because
"it deals with when a trial court is constitutionally required" to appoint an expert to assist the
defense); Jackson v. State, 992 S.W.2d 469,474 (Tex. Crim. App. 1999) (defendant was not
entitled to assistance of state-funded polygraph examiner pursuant to Ake); Griffith v. State,
983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (noting, pursuant to Ake and Williams, it is “now
without question that Ake requires the appointment of an expert regardless of field of
expertise” but concluding defendant did not establish deprivation of an adequate defense by
refusal to appoint expert); Skinner v. State, 956 S.W.2d 532, 538 (Tex. Crim. App. 1997)
(expert appointed pursuant to Ake is an agent of the defense for work-product doctrine but
trial court’s error in requiring defendant to disclose a document prepared by the expert was
harmless); Cantu v. State, 939 S.W.2d 627, 638-39 (Tex. Crim. App. 1997) (Ake is applicable
to non-psychiatric experts but Applicant did not show a particularized need for the funding
sought for an expert to conduct a jury study regarding their understanding of the special
punishment issues); Matchett v. State, 941 S.W.2d 922, 939 (Tex. Crim. App. 1996) (same);
Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (Appellant failed to establish
expert assistance sought, pursuant to Ake, in selecting a jury was essential to defense by
offering nothing but undeveloped assertions that the requested assistance would be
beneficial); Taylor v. State, 938 S.W.2d 148, 151-53 (Tex. Crim. App. 1996) (DNA expert
appointed at defendant’s request who provided results to all parties could not be considered
defendant’s expert pursuant to defendant’s due process right as recognized in Ake); De Freece
v. State, 848 S.W.2d 150, 160 (Tex. Crim. App. 1993) (trial court erred in denying request
for appointment of psychiatrist to aid the defense pursuant to Ake); McBride v. State, 838
S.W.2d 248, 252 (Tex. Crim. App. 1992) (holding indigent defendant entitled to appointment
of investigator/chemist to inspect cocaine pursuant to Ake concluding that “to meaningfully
participate in the judicial process, an indigent defendant must have the same right to
inspection as non-indigent defendant”) (superseded by statute).
From this Court relying on Williams: Miranda v. State, 620 S.W.3d 923, 928 (Tex. Crim. App.
2021) (citing Williams’s evidentiary holding regarding the corpus delicti rule and concluding
the rule was satisfied); Wells v. State, 611 S.W.3d 396, 411 (Tex. Crim. App. 2020) (citing
City of Lubbock — 31
context of the appointment of experts. This Court has recognized that
Ake applies to the appointment of experts regardless of the area of
expertise, upon a sufficient threshold showing of necessity, but we have
never applied Ake beyond the scope of such appointments and without
a similar threshold requirement. 68 And while the Real Party in Interest
seems to frame his argument as a novel issue in order to suggest
Williams only for its proposition that when the State is the beneficiary of the error, it carries
the burden of proving that the constitutional error was harmless beyond a reasonable doubt
and concluding improper exclusion of entire police interview was harmless.); Ex parte Napper,
322 S.W.3d 202, 246-47 (Tex. Crim. App. 2010) (counsel was deficient for failing to obtain a
DNA expert noting that pursuant to Williams defendant was entitled to make a request for
experts in an ex parte hearing but concluding defendant was not prejudiced by trial counsel’s
failure); Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010) (citing Williams’s
discussion of Rule 403 which applies when there exists a clear disparity between the degree
of prejudice of the offered evidence and its probative value and concluding trial court did not
err in admitting evidence that defendant was a Satanist); Williams v. State, 301 S.W.3d 675,
690 n.6 (Tex. Crim. App. 2009) (citing to Williams’s in discussion of appellant’s point of error
regarding the admission of photographs noting it was incumbent on appellant to ensure
original or photocopies were included in the record); Young v. State, 283 S.W.3d 854, 875
n.59 (Tex. Crim. App. 2009) (citing Williams’s discussion of Rule 403 and the admissibility of
photographs and concluding photograph was admissible as was extraneous offense evidence);
Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (citing Williams’s evidentiary
holdings regarding the admission of a photograph); Shuffield v. State, 189 S.W.3d 782, 786
nn.13-14 (Tex. Crim. App. 2006) (same); Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim.
App. 2004) (same); Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005) (same);
Rocha v. State, 16 S.W.3d 1, 4-5 (Tex. Crim. App. 2000) (citing Williams’s evidentiary holding
regarding corpus delicti). We have never extended or otherwise applied Williams’s approval
of ex parte hearings on the appointment of defense experts to the context of criminal
discovery.
68
See Griffith, 983 S.W.2d at 286 (noting, pursuant to Ake and Williams, it is “without
question that Ake requires the appointment of expert regardless of field of expertise”); Cf.
Rosales, 4 S.W.3d at 232 (Ake does not apply to request to accompany counsel to crime scene
because Ake “deals with when a trial court is constitutionally required” to appoint a defense
expert).
City of Lubbock — 32
mandamus relief is inappropriate, the requirement that ex parte
proceedings must be expressly authorized undermines that contention.
Further, the rationale justifying the ex parte proceedings in Ake
and Williams does not translate to a general request for discovery. To
get the assistance of a defense expert, a criminal defendant has no other
option but to seek an order from the trial court. And to secure
appointment of a defensive expert from the trial court, a criminal
defendant must make a showing that he is entitled to expert assistance.
The need for this showing necessarily places the defendant in a Catch-
22 to either reveal defensive strategy and privileged information to
obtain expert assistance or keep that information confidential by
foregoing expert assistance.
In contrast, the United States Supreme Court has specifically held
that the federal constitution does not contain a general right to
discovery. 69 Moreover, request for statutory discovery in Texas, such
as the one at issue, do not require the type of showing necessary under
Ake or Williams. In its amended motion to the trial court, the Real Party
in Interest conceded it was only seeking material relevant under
69
See, e.g., Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general
constitutional right to discovery in a criminal case, and Brady did not create one[.]”); See
also, Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980), abrogated on other
grounds by Ehrke v. State, 459 S.W.3d 606 (Tex. Crim. App. 2015).
City of Lubbock — 33
Brady, 70 Article 39.14, and Watkins, 71 none of which require the type of
preliminary showing at issue in Ake and Williams. General discovery
requests do not place a defendant in the same Catch-22 as a request
for a defense expert does when a criminal defendant need not even
make a showing of “good cause” to obtain discovery. 72
While we acknowledge that the Real party in Interest is correct
that ex parte hearings are authorized for the appointment of experts
despite the lack of statutory authorization, this overlooks that there
must still be some express authorization for ex parte proceedings. All
Ake and Williams provided was express authority for ex parte hearings
for the appointment of experts. Neither provides authority for ex parte
hearings like the one at issue in this case. 73 As discussed above, ex
parte communications are disfavored and require express
authorization. 74 To the extent such proceedings are “widely accepted”
70
Brady v. Maryland, 373 U.S. 83 (1963).
71
Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021).
72
Watkins, 619 S.W.3d at 277.
73
Even the defendant in Williams did not attempt to proceed ex parte without notice to the
prosecution. There, he moved for leave to file his motion for expert assistance ex parte and
sought an ex parte hearing on the appointment of a defense expert after notice to the
prosecution. Williams, 958 S.W.2d at 191-92.
74
Marks, 949 S.W.2d at 325 (“we note that the law in this State, as in most jurisdictions,
looks upon ex parte proceedings with extreme disfavor.”).
City of Lubbock — 34
they are only widely accepted in the context of appointing defense
experts, because such proceedings have been expressly authorized by
Ake and Williams. 75 The cases cited by the Real Party in Interest and
relied upon by the Seventh Court of Appeals to deny mandamus relief
do not provide express authorization for the request at hand.
Consequently, the trial court lacked authority to enter an ex parte order
for these records and thus, the order is void. 76
The Right to Effective Assistance of Counsel,
the Right to Present a Defense, And the Work-Product Doctrine
Do Not Authorize Ex Parte Discovery
The Real Party in Interest also contends that the due process right
to present a defense and the right to effective counsel guaranteed by
the United States and Texas Constitutions require the proceedings below
to be ex parte. 77 We disagree. The Constitution guarantees defendants
“a meaningful opportunity to present a complete defense.” 78 This right
is rooted in the Fourteenth Amendment’s Due Process Clause and the
75
See Williams, 958 S.W.2d at 194.
76
Ogg, 618 S.W.3d at 365 (a judge’s lack of authority to preside over a proceeding can
invalidate the proceeding); Ex parte Seidel, 39 S.W.3d 221, 224-25 (Tex. Crim. App. 2001)
(“The trial judge’s action was not authorized by law and was, therefore void.”).
77
U.S. CONST. amend. V & XIV; TEX. CONST. art. 1, § 10.
78
California v. Trombetta, 467 U.S. 479, 485 (1984).
City of Lubbock — 35
Sixth Amendment’s Compulsory Process and Confrontation Clauses. 79
Accordingly, the exclusion of relevant, material, important evidence by
application of rules that are arbitrary or disproportionate to their
purpose may offend the Constitution. 80 However, this case does not
turn on the ability of the defendant to present evidence or the exclusion
of otherwise relevant evidence. Rather, it involves the ability to seek
the production of documents from a third-party ex parte.
There is no support for the contention that the right to present a
defense expressly authorizes ex parte communications and proceedings
regarding discovery. The Real Party in Interest argues that absent the
ability to make the request for records ex parte, his right to present a
defense will be impeded because defense counsel will have to choose
between disclosing confidential information and developing a defensive
theory. As discussed above, a discovery request does not place the
defendant in the same dilemma as a defendant seeking expert
assistance, particularly because no threshold showing is required to
entitle a defendant to statutory discovery.
79
Crane v. Kentucky, 476 U.S. 683, 690 (1986).
80
Potier v. State, 68 S.W.3d 657, 662 (Tex. Crim. App. 2002).
City of Lubbock — 36
Indeed, the United States Supreme Court has held that states can
require, as part of a robust reciprocal discovery system, that criminal
defendants provide notice to the State of an intent to raise an alibi
defense. 81 As the United States Supreme Court observed, “[t]he
adversary system of trial is hardly an end in itself; it is not yet a poker
game in which players enjoy an absolute right to always conceal their
cards until played.” 82
If forcing a defendant to reveal general strategy
such as the intent to raise an alibi defense does not violate the
constitution, neither does filing a general discovery request.
The Real Party in Interest does not fully explain how ex parte
discovery proceedings are necessary to preserve his right to effective
assistance of counsel. But to the extent this argument is premised upon
the same argument that the discovery request itself would improperly
reveal defensive strategy, we reject it for the same reasons discussed
above. We acknowledge that the Texas and United States Constitutions
guarantee criminal defendants the effective assistance of counsel. 83
And we agree with the Real Party in Interest that defense counsel has a
81
See, e.g., Williams v. Florida, 399 U.S. 78, 86 (1970).
82
Id.
83
U.S. CONST. amend. VI & XIV; TEX. CONST. art. 1, § 10.
City of Lubbock — 37
duty to conduct a reasonable independent investigation into the facts in
the case. 84 But the right to effective assistance of counsel does not
expressly authorize ex parte proceedings regarding discovery.
Neither does the work product doctrine. The work-product
doctrine is premised on the notion that an attorney should not be
compelled to disclose his or her mental processes and is intended to
protect, and to act as a limitation upon, pretrial discovery of a lawyer’s
strategies, legal theories, and mental impressions. 85 The doctrine
protects the production of materials that set out an attorney’s litigation
strategy or opinions. 86 There is no authority for the proposition that a
discovery request itself, which by its very nature is disclosed to an entity
other than the defense team, constitutes work product. Indeed, under
the Real Party in Interest’s work-product argument, any request for
discovery would become the subject of an ex parte proceeding under
the theory that the request alone divulges investigative strategy.
Taking this argument to its logical conclusion, almost any motion filed
84
McFarland v. State, 928 S.W. 2d 482, 501 (Tex. Crim. App. 1996).
85
Pope v. State, 207 S.W.3d 352, 364 (Tex. Crim. App. 2006) (“While the work-product
doctrine protects the communications of parties, attorneys, and agents, the underlying factual
information is not protected.”).
86
Id. at 365.
City of Lubbock — 38
by either party could be characterized as work product simply because
it might carry some oblique hint at a possible strategy.
Further, the records the Real Party in Interest seeks through the
trial court’s order in this case, cannot, by definition, be work product
because they are not the lawyer’s strategies, legal theories, or mental
impressions. They are facts that may or may not be divulged by or exist
independent of the attorney or his agents, and therefore they are not
work product. 87 As with the other arguments raised by the Real Party
in Interest, this argument ignores that there is no constitutional right to
discovery akin to the constitutional right to the appointment of a defense
expert upon a necessary and proper showing. Consequently, the work-
product doctrine does not expressly authorize proceeding ex parte with
a general discovery request.
Conclusion
Ex parte communications with a trial court regarding matters
pending before the court require express authorization. The prohibition
against ex parte communications absent that express authorization is
87
Id. at 358-59; In re State ex rel. Ogg, 630 S.W.3d 67, 72 (Tex. Crim. App. 2021) (Newell,
J., concurring) (noting that the concession that documents if created by the police department
would be discoverable suggests that the information within the documents exists independent
of the through processes of the lawyers and centers more on the discrete facts underlying the
case). We do not see how a request for such a document constitutes work product.
City of Lubbock — 39
clear and indisputable. There is no express authorization for ex parte
proceedings like the one at issue in this case. Nothing expressly
authorized the trial court’s ex parte order to produce documents, and
the resulting order is void. We conditionally grant Relator’s petition for
a writ of mandamus. The writ of mandamus will issue only in the event
that the court of appeals fails to comply with this opinion.
Filed: February 8, 2023
Publish
in Re City of Lubbock
Combined Opinion