In Re University of Texas Medical Branch-Galveston, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-91,715-01

IN RE UNIVERSITY OF TEXAS MEDICAL BRANCH–GALVESTON, Relator

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

SLAUGHTER, J., filed a concurring opinion.

CONCURRING OPINION

While I agree with the Court’s ultimate conclusion that the habeas judge lacked

authority to issue the order compelling Relator to conduct brain imaging on the Real-Party-

in-Interest, Dillion Compton, I cannot join the Court’s opinion. Instead of addressing the

merits of the habeas judge’s authority to issue the underlying order pursuant to the statutory

provisions in Code of Criminal Procedure Article 11.071, the Court bypasses that issue

entirely by concluding, once again, that the order was unauthorized simply because it was

issued ex parte. See Maj. Op. at 4. For the same reasons I cited in my previous opinion
In re UTMB - 2

addressing this topic, I disagree with the Court that this issue may be resolved solely on

the ex parte basis. In re TDCJ, 668 S.W.3d 375 (Tex. Crim. App. 2023) (Slaughter, J.,

dissenting). Nevertheless, reaching the question the Court does not reach of the habeas

judge’s implicit authority under Article 11.071 to issue the order, I agree with Relator that

the judge exceeded such authority by ordering Relator to create evidence to assist Compton

with his pre-application investigation by compelling Relator to conduct brain imaging on

him. Therefore, I respectfully concur in the Court’s judgment.

I. Background

In November 2018, the Real-Party-in-Interest, Dillion Compton, was convicted of

capital murder and sentenced to death. Several months later, the district court appointed

the Office of Capital and Forensic Writs (“OCFW”) to represent Compton in his initial

Article 11.071 post-conviction habeas proceeding. Upon its appointment, OCFW began

investigating the possible factual and legal grounds for relief.

OCFW’s investigation revealed potentially important facts about Compton’s

childhood. Specifically, OCFW learned that Compton’s mother had used drugs while she

was pregnant with him. OCFW also found that Compton’s childhood was plagued by

psychological and physical abuse. Based on this history, OCFW suspected that Compton

may have suffered from impaired brain function. Because the jury at Compton’s capital

sentencing hearing did not receive any evidence regarding Compton’s potential impaired

brain function, OCFW believed possible grounds existed for an ineffective-assistance-of-
In re UTMB - 3

counsel claim based on trial counsel’s failure to investigate or present such evidence to the

jury.

To further its investigation of the possible factual basis for such a claim, OCFW

sought to obtain brain imaging on Compton. It contacted the University of Texas Medical

Branch–Galveston (“UTMB”) to inquire about obtaining a MRI. OCFW requested a cost

estimate and notified UTMB that Compton would have to seek court funding to cover the

cost of the service. That same day, OCFW moved the habeas court to order UTMB to

conduct the MRI and to order the Texas Department of Criminal Justice (“TDCJ”) to

transport Compton to the appointment. On October 20, 2021, the habeas court granted both

motions and entered a single order compelling both actions.

During the week that followed, OCFW and UTMB discussed Compton’s potential

diagnoses, scheduling for the MRI, and payment details. Following these discussions,

OCFW and UTMB agreed to schedule Compton’s MRI for November 11, 2021. OCFW

then served the habeas court’s order on the TDCJ unit where Compton was confined. A

few days later, OCFW prepaid UTMB the sum requested for the brain imaging.

On November 5, 2021, the Office of the Attorney General (“OAG”) intervened on

behalf of TDCJ and UTMB. The OAG moved the habeas court to revoke its order. Initially,

the habeas court did so. But on December 3, 2021, following a hearing on the matter, the

habeas court denied the OAG’s motion and reinstated the original order. In response, the

OAG filed the instant mandamus petition, arguing that the habeas judge lacked authority
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under Code of Criminal Procedure Article 11.071, Section 3, to issue the order. This Court

filed and set the case to address the question of whether a habeas judge has the implicit

authority under Article 11.071 to issue pre-application orders in support of a capital habeas

applicant’s investigation of possible claims. 1

II. Discussion

Notwithstanding the aforementioned statutory-authority question that was the basis

for this Court’s decision to file and set this case, the Court now grants conditional

mandamus relief to Relator on an entirely different basis—that is, that the order in question

was issued ex parte without notice to the State. See Maj. Op. at 4. Under this rationale, the

Court declines to reach the merits of whether the habeas judge had implicit authority under

Article 11.071 to issue the underlying order. In support of its reasoning, the Court relies on

1
The grounds on which we ordered briefing were:

1. Is a convicting court’s authority under Code of Criminal Procedure Article 11.071,
Section 3 strictly limited to (i) granting requests for expenses, see TEX. CODE CRIM.
PROC. art. 11.071, § 3(c), and (ii) ordering reimbursement for expenses, see id. § 3(d)?

2. If an inmate secured funding for investigatory medical imaging pursuant to Code of
Criminal Procedure Article 11.071, Section 3, would a convicting court have authority to
order the Texas Department of Criminal Justice to transport the inmate to a hospital (so
that he could receive that imaging) before an Article 11.071 application was filed? If so,
what law or set of laws would authorize the convicting court to issue a pre-application
transport order of that nature?

3. The court orders at issue in this case arguably command an entity to create evidence that
did not exist at the time of the orders. What role, if any, should this Court’s opinions in In
re State ex rel. Best, 616 S.W.3d 594, 600 (Tex. Crim. App. 2021), and In re Harris, 491
S.W.3d 332, 336 (Tex. Crim. App. 2016), play in the analysis? Does it matter whether the
convicting court’s orders were in the nature of “discovery”?
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two recent decisions: In re City of Lubbock, 666 S.W.3d 546 (Tex. Crim. App. 2023), and

In re TDCJ, No. WR-91,688-01, 2023 WL 4003792 (Tex. Crim. App. June 14, 2023) (not

designated for publication). I dissented from those two decisions, and I continue to disagree

with the Court’s approach in this case. For reasons I explained at length in my dissent in

In re TDCJ, the Court errs by applying the general rule that ex parte orders are disfavored

as a basis for concluding that Relator is clearly and indisputably entitled to relief here. See

In re TDCJ, 668 S.W.3d at 387 (Slaughter, J., dissenting); see also State ex rel. Hill v.

Court of Appeals for Fifth District, 34 S.W.3d 924, 927–28 (Tex. Crim. App. 2001) (for

mandamus relief to lie, the established law must demonstrate that entitlement to relief is

“clear and indisputable” such that its merits are “beyond dispute”) (citations and quotations

omitted). But, while I continue to assert that a habeas judge has implicit authority under

Article 11.071 to order pre-application discovery to facilitate an applicant’s investigation

of possible claims, I agree in this case that such authority stops short of permitting a judge

to order a third party to create evidence that does not yet exist. Therefore, I concur in the

Court’s judgment.

A. The Court once again errs by relying on a general rule disfavoring
ex parte orders to grant mandamus relief here.

For all the same reasons I previously cited in my In re TDCJ dissent, this case cannot

be resolved simply by resorting to the general rule that ex parte orders are disfavored. See

In re TDCJ, 668 S.W.3d at 387–81. At the outset, I again question whether the order here

was truly issued ex parte. An ex parte proceeding is one “relating to, or involving court
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action taken or received by one party without notice to the other.” BLACK’S LAW

DICTIONARY (11th ed. 2019) (emphasis added). As was the case in In re TDCJ, no Article

11.071 application had yet been filed at the time of the Court’s order here. It is thus highly

questionable whether the State was a “party” to the habeas proceedings at that pre-filing

juncture. The Court’s cited rationale for strenuously enforcing the perceived “rule” against

ex parte proceedings is that such a prohibition is necessary to “preserve judicial impartiality

and ensure that all legally interested parties are given their full right to be heard under the

law.” In re City of Lubbock, 666 S.W.3d at 558 (emphasis added). But what justifiable

legal interest can the State have in knowing, at the pre-filing stage, what factual

investigations appointed habeas counsel is pursuing? The State will of course be entitled

to all the information it needs to respond to the application at the proper time—after the

application has been filed. See TEX. CODE CRIM. PROC. art. 11.071, § 6(c) (providing that,

once the Article 11.071 application has been filed, the attorney representing the State is

entitled to copies of the application and all documents filed in conjunction with it). But

until that point in time, there is no adversarial proceeding, and the State is not yet a “party”

to the litigation. On this basis alone, I would disagree with the Court’s analysis of this issue.

But even assuming arguendo that this type of pre-application order should be treated

as having been issued ex parte, that still would not resolve the issue because the prohibition

on ex parte proceedings is a general rule that is subject to exceptions. See In re TDCJ, 668

S.W.3d at 380 (Slaughter, J., dissenting) (stating that, “[w]hile ex parte proceedings are
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generally ‘disfavored,’ ample authority indicates that a trial judge may, in narrow

circumstances, have discretion to permit an ex parte hearing or communication, even if not

‘expressly’ authorized, when some overriding interest justifies it,” and collecting cases).

Ultimately, a judge has discretion in limited circumstances to issue an ex parte order when

he or she deems it necessary and appropriate in the interests of justice. Because such a

determination is inherently discretionary, it is not subject to mandamus. Id. at 380 (opining

that, “whether such an exception applies to a particular fact pattern is the very type of

discretionary determination that is generally not susceptible to mandamus”) (citing In re

Allen, 462 S.W.3d 47, 49–50 (Tex. Crim. App. 2015) (“A ministerial act, by its nature,

does not involve the use of judicial discretion; it must be positively commanded and so

plainly prescribed under the law as to be free from doubt.”)).

In short, the general rule disfavoring ex parte proceedings is once again inadequate

to resolve the novel issue presented here. I also note that, as a procedural matter, the

decisions upon which the Court now relies to grant conditional mandamus relief, In re City

of Lubbock and In re TDCJ, were both issued after this case was filed and set, and after the

parties filed their respective briefs. Needless to say, the parties’ arguments in their briefs

did not emphasize or focus on the rule disfavoring ex parte proceedings as a basis for

resolving this case. At the very least, given the circumstances, the Court should permit the

parties to submit supplemental briefing on this issue before reflexively applying the rule

from In re Lubbock and In re TDCJ to grant Relator mandamus relief here. For the
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foregoing reasons, I cannot join the Court’s opinion.

B. The habeas judge lacked authority to compel Relator to create
evidence to aid in Compton’s pre-application investigation.

Despite my disagreement with the Court’s approach to this issue, I ultimately agree

with its holding granting conditional mandamus relief to Relator. Addressing the issue of

implicit statutory authority that the Court declines to reach here, the order in this case was

not, strictly speaking, a discovery order. Instead, it sought to compel Relator to conduct

brain imaging on Compton and then turn over the results of that imaging to Compton’s

habeas counsel. Whatever the outer limits of a habeas judge’s implicit discovery authority

under Article 11.071 may be, such an order purporting to compel a third party to create

evidence exceeded that authority. Accordingly, I concur in the Court’s judgment.

1. Implicit Authority under Article 11.071

As I expressed in my In re TDCJ dissent, a habeas judge has implicit authority under

Article 11.071 to facilitate an Applicant’s investigation of potential claims by ordering

traditional discovery. In that case, the applicant had sought and received an order from the

habeas judge compelling TDCJ to turn over certain confidential records in its possession

to facilitate Applicant’s investigation of possible Brady and false-evidence claims. I would

have upheld the habeas judge’s action there as being implicitly authorized, noting that the

broad purpose of the capital habeas statute is to “ensure ‘that a death row inmate does have

one full and fair opportunity to present his constitutional or jurisdictional claims in

accordance with the procedures of the statute.’” In re TDCJ, 668 S.W.3d at 382 (Slaughter,
In re UTMB - 9

J., dissenting) (quoting Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002)). This

purpose is reflected in the statutory provision mandating that appointed habeas counsel

“shall investigate expeditiously, before and after the appellate record is filed in the court

of criminal appeals, the factual and legal grounds for the filing of an application for a writ

of habeas corpus.” TEX. CODE CRIM. PROC. art. 11.071, § 3(b). Thus, given a trial judge’s

“implicit authority to take actions not expressly authorized if they are in furtherance of the

statute’s jurisdictional purpose,” the judge’s order requiring TDCJ to provide discovery to

Applicant was in furtherance of the statutory mandate that counsel investigate all possible

grounds for relief. In re TDCJ, 668 S.W.3d at 382 (Slaughter, J., dissenting). After all, if

habeas counsel were unable to obtain the confidential, non-publicly available records to

conduct his pre-application investigation, then he would be unable to fulfill the statutory

mandate that he “investigate expeditiously” the possible factual and legal grounds for

relief. Id. He would also be unable to meet this Court’s pleading standard, which requires

the applicant to plead “specific facts” in support of his request for relief. Id. Disallowing

pre-application discovery sets up a Catch-22 for capital habeas applicants: “They are

required to plead specific facts in the application (and cannot amend the application after

the statutory filing deadline to supplement with additional claims); but they have no power

to compel any third parties to actually comply with their factual investigation that might

support [their] claims.” Id. Thus, to avoid a result that conflicts with the statute’s overall

purpose and structure, I would have held that the habeas judge’s pre-application, nonparty
In re UTMB - 10

discovery order did not clearly and indisputably exceed the permissible scope of implicit

authority under the statute. Id. at 384.

2. A judge’s implicit discovery authority does not encompass
the ability to order the creation of evidence.

In spite of the foregoing, the order at issue in this case is not a “discovery” order at

all. It purports to compel Relator, a nonparty, to take certain action (conducting brain

imaging on Compton) and then provide documentation of that action to Applicant.

Whatever the outer limits of a habeas judge’s implicit discovery authority under Article

11.071 may be, I conclude that this type of order plainly exceeds the scope of that authority.

This Court has already held, in a related context, that a judge exceeds the scope of

his discovery authority when he seeks to compel a party to “create evidence.” In re State

ex rel. Best, 616 S.W.3d 594, 601 (Tex. Crim. App. 2021). In Best, the State had charged

multiple defendants with various felonies and submitted biological evidence to the

Department of Public Safety for DNA testing. Id. at 596. The defendants sought to halt the

DNA testing, arguing that the samples would be insufficient for the defendants to retest

them later. Id. at 597. The trial judge agreed with the defendants and ordered the State to

record its DNA testing, using both audio and video. Id. at 598. In response, the State sought

mandamus relief from this Court. Id. at 599. This Court agreed with the State, holding that

“whatever may be the permissible scope of a trial court’s discretion over matters of pre-

trial discovery, it does not extend to the point of ordering the State to create or generate

evidence that does not otherwise exist.” Id. at 600 (emphasis added). While Best involved
In re UTMB - 11

a pre-trial discovery dispute, the basic premise is applicable in the instant case—judges

cannot order parties to create “evidence” that would not otherwise exist pursuant to a

general discovery authority. It follows that if a judge cannot utilize his discovery authority

to compel a party to create evidence, he cannot compel a third party to do so either. 2

Further, although habeas corpus proceedings are criminal in nature, see Ex parte

Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004), the Texas Rules of Civil Procedure

are also instructive with respect to the permissible forms of third-party discovery. The

Rules authorize parties to compel three types of discovery from nonparties. See TEX. R.

CIV. P. 205.1. Those include: (1) oral depositions, (2) written depositions, and (3) requests

for production of documents or tangible things. Id. Notably absent from the Rules is any

mechanism through which a party may compel a nonparty to create physical evidence.

Rather, the Rules restrict courts to ordering third parties to produce existing evidence,

whether testimony, documents, or other tangible things. See In re Daimler Trucks North

America, LLC, 551 S.W.3d 833, 842 (Tex. App.—San Antonio 2018, no pet.) (quoting In

re Guzman, 19 S.W.3d 522, 525 (Tex. App.—Corpus Christi 2000, orig. proceeding) (“The

rules do not permit the trial court to force a party to create documents which do not exist,

2
I, of course, acknowledge that a trial judge has authority to take other types of actions, such as
ordering a competency evaluation or drug testing of a defendant, that are not for purposes of
“discovery” but do result in new evidence or documentation being generated. Those actions are
pursuant to some other source of statutory authority and do not derive from an implicit authority
to order discovery. My analysis above is accordingly limited to an assessment of a habeas judge’s
implicit authority, under Article 11.071, to enter pre-application discovery orders to aid in an
Applicant’s development of claims.
In re UTMB - 12

solely to comply with a request for production.”)). 3 While I recognize that the Civil Rules

do not apply directly in this case, they nevertheless support the broader notion that

“discovery,” in the traditional sense, does not encompass the creation of new evidence.

Because the habeas judge here ordered Relator to create the brain image, rather than

produce an existing one, the judge clearly exceeded the scope of his implicit authority

under Article 11.071 to order discovery to facilitate habeas counsel’s investigation of

potential claims. This situation is therefore distinguishable from the issue that was present

in In re TDCJ, where the Applicant was seeking access to documents already in existence

such that the court’s order there fell within the scope of traditional discovery.

As a practical observation, however, I note that a capital habeas applicant seeking

to have this type of testing done is not without recourse. For example, although the habeas

court cannot compel UTMB to conduct the brain imaging, there is nothing to prevent a

private entity from agreeing to conduct brain imaging on Compton for a fee. The record

here clearly reflects that the habeas judge was willing to appropriate funds to cover the cost

of obtaining the MRI, pursuant to the judge’s express statutory authority under Article

11.071, Section 3. See TEX. CODE CRIM. PROC. ART. 11.071, § 3(b), (c), (d) (providing that

3
Such a limitation also exists under the Federal Rules of Civil Procedure. See FED. R. CIV. P. 34
(discovery rule referring to requests to “produce and permit the requesting party or its
representative to inspect, copy, test, or sample [ ] items in the responding party’s possession,
custody, or control”) (emphasis added); Payless Shoesource Worldwide, Inc. v. Target Corp., Civ.
Action No. 05-4023, 2008 WL 973118, at *4 (D. Kan. Apr. 8, 2008) (explaining that “[Rule]
34 does not require a party to create responsive documents if they do not exist in the first instance”
and that “the Court cannot compel a party to produce documents that do not exist”).
In re UTMB - 13

habeas counsel may submit requests for the prepayment and reimbursement of expenses

related to the investigation of the factual and legal grounds for relief, and further providing

that the habeas court “shall” grant such requests so long as they are reasonable). So, the

only problem with the judge’s current order is that it compels Relator to conduct the brain

imaging, which amounts to requiring a third party to create evidence. For the reasons

explained above, this aspect of the court’s order was impermissible. But the issue may be

remedied by simply relying on the provisions in Article 11.071, Section 3, governing pre-

payment of expenses, to authorize and order Compton to arrange for his own private

testing. Under those circumstances, habeas counsel would still be able to “investigate

expeditiously” the factual basis for the underlying claim, without needing to resort to a

court order compelling a third party to conduct the testing.

In sum, given the weight of the authority prohibiting a judge from compelling the

creation of evidence pursuant to a general discovery power, I conclude that the habeas

judge in this case clearly lacked the authority to compel UTMB to create brain scans of

Compton. As such, I would grant Relator’s mandamus petition on this basis. 4

III. Conclusion

While I disagree with the Court that this case can be resolved solely by relying on

4
Given this analysis, I do not address the validity of the trial judge’s transport order. It seems to
me, however, that if the order for Compton to receive an MRI scan were valid, then the transport
order would also necessarily be a valid order in furtherance of that action. Because I have agreed
with Relator that the order purporting to compel the MRI testing was invalid, I need not definitively
resolve the validity of the transport order here.
In re UTMB - 14

the principle that ex parte orders are disfavored, and while I continue to believe that a

habeas judge has implicit authority to order pre-application discovery under Article 11.071,

I nevertheless agree that the habeas judge clearly lacked authority to compel UTMB to

create evidence in the form of brain imaging on Compton. As such, I concur in the Court’s

judgment.

Filed: October 18, 2023

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