In Re: Dallas County Criminal District Attorney John Creuzot and Dallas County Medical Examiner's Office v. the State of Texas

CONDITIONALLY GRANTED and Opinion Filed November 14, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00450-CV

IN RE DALLAS COUNTY CRIMINAL DISTRICT
ATTORNEY JOHN CREUZOT AND DALLAS COUNTY
MEDICAL EXAMINER’S OFFICE, Relators

Original Proceeding from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-23-07231-D

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith
Relators Dallas County Criminal District Attorney John Creuzot (the DA’s

Office) and the Dallas County Medical Examiner’s Office (the ME’s Office) filed a

petition for writ of mandamus and an emergency motion for temporary relief

challenging nonparty discovery ordered by the respondent, the Honorable Dianne

Jones, in the underlying civil suit. Because we conclude that respondent’s discovery

orders on relators’ first motions for protective orders were a clear abuse of discretion,

we conditionally grant the writ.
Procedural Background

Real party in interest Amer Yasin filed suit in November 2023 alleging

survival claims against John Brook Clark for the sexual assault of his daughter,

Nadia Yasin, leading up to her murder on September 12, 2021. The DA’s Office is

currently prosecuting Clark for the murder of Nadia; the ME’s Office performed her

autopsy. Neither the DA’s Office nor the ME’s Office are parties to the underlying

civil suit.

In January 2024, Amer served relators with notices of depositions on written

questions. The notices were attached to pages that were labeled as subpoenas duces

tecum, and the returns of service were subpoena returns. The pages labeled as

subpoena duces tecum required relators to appear before a notary public “no less

than seven days following the service of this subpoena which will be issued no less

than twenty-five days following the service of the Notice of Subpoena Duces

Tecum.” The notice served on the ME’s Office requested any and all autopsy

records related to Nadia. The notice served on the DA’s Office requested a list of

twenty-two categories of items, including any confessions or statements made by

Clark, arrest warrants, offense reports, names of law-enforcement officers and

employees of the DA’s Office who had participated in the case, names of any person

interviewed, photographs, videos, physical evidence, and reports of scientific tests

and medical or psychological examinations, as well as the opportunity to inspect the

defendant’s and the victim’s cell phones.

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Relators each filed a motion for protective order. The DA’s Office argued

that the subpoena was defective because it was not dated or signed and required the

DA’s Office to provide documents in a shorter time frame than allowed by the rules;

the requested records pertained to a pending criminal prosecution and the release of

such records would interfere with the detection, investigation, or prosecution of

Clark; and the subpoenas were outside the permissible scope of discovery because

they improperly sought attorney work product, privileged attorney–client

communications, and statutorily confidential information. The DA’s Office urged

that even if some items could be released, the trial court must first conduct an in

camera inspection to determine that the discovery sought was relevant and that there

was a specific need for it. The ME’s Office argued that the subpoena served on its

office was defective because it was not dated or signed, there was no witness fee

attached to the subpoena, a return of service was not filed with the court, and the

subpoena required the production of documents in a shorter time frame than allowed

by the rules. The ME’s Office also adopted the DA’s Office’s argument that the

requested records pertained to a pending criminal prosecution and further argued

that Clark should not have unfettered access to documents that he would not be

physically entitled to under the criminal discovery rules.

The parties agreed to set the motions for protective orders for a hearing on

March 25, 2024, at 3:00 p.m. and filed an agreed notice with the trial court on

February 6, 2024.

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On February 26, 2024, Amer’s counsel issued new subpoenas for deposition

and duces tecum, which were served on relators on February 28. This time the

subpoenas were signed, dated, accompanied by witness fees, and commanded that

relators produce the documents by March 26, 2024, the day after the scheduled

hearing.

On March 18, 2024, Amer filed a response to each of the motions for

protective order. In his responses, he acknowledged that the first documents served

on relators were merely notices, not subpoenas, which he asserted should have been

clear by the included language in the documents that a subpoena would be served

twenty-five days after the notice. Amer argued that relators failed to establish a

privilege existed and that any privilege had been waived due to disclosure of the

documents in the criminal case. In response to the ME’s Office’s motion, Amer

additionally asserted that, because the ME’s Office was not a law-enforcement

agency, it could not claim that the documents were privileged because they were the

subject of a pending criminal prosecution.

On the morning of March 25, 2024, the same day as the hearing, relators each

filed a Second Motion for Protective Order challenging the new subpoenas served

upon them on February 28. The second motion filed by the DA’s Office contained

similar arguments to its first motion for protective order, but it also included more

detailed arguments regarding how the documents pertained to a pending criminal

prosecution, were not public information, would be excluded from public disclosure

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under the Texas Public Information Act, see TEX. GOV’T CODE § 552.108, and were

subject to strict disclosure limitations under the Michael Morton Act, see TEX. CODE

CRIM. PROC. art. 39.14. To support the DA’s Office’s assertion of its privilege in

withholding the requested documents, the DA’s Office’s second motion included an

affidavit from the prosecutor assigned as lead counsel in Clark’s criminal case in

which she testified that producing documents in the DA’s Office’s file would

interfere with the detection, investigation, and prosecution of Clark. She explained

that allowing Clark to receive copies of documents in the civil case to which he

would not be entitled in the criminal case could lead to tampering with witnesses

(either by causing them to change their testimony or by causing them to become

unwilling to testify at all) or could jeopardize the safety of officers involved in the

investigation. She also testified that allowing the parties in the civil case access to

examine or test physical evidence of any kind could compromise the integrity and

admissibility of those items and that allowing any documents to become public

before the criminal trial could impact the selection of a fair and impartial jury. The

ME’s Office argued that the documents requested to be produced by its office were

part of the files of the DA’s Office and again adopted the DA’s Office’s arguments

that release of such information would interfere with Clark’s prosecution and even

his right to a fair trial. Relators also argued that the second subpoenas served upon

them were premature because they required production on March 26, the day after

the date on which the first motions were set to be heard (March 25) and presumed

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that relators would not seek protection from the second subpoenas or that the trial

court would not need additional time to consider relators’ arguments and evidence.

Amer filed objections to relators’ second motions for protective orders the

same day. He argued that the local rules required any briefs, responses, or replies to

a motion to be filed no later than three working days before the hearing and therefore

the motions should be struck as untimely. At the hearing, respondent indicated she

would allow discovery in a limited fashion, and the discussion turned to whether the

discovery would be provided under a protective order. The parties briefly discussed

the second motions for protective orders and whether the hearing on the first motions

was even necessary. Amer argued that the trial court should still rule but not

consider relators’ second motions, and relators argued that the second motions had

not been set for a hearing and those were the motions addressing the actual

subpoenas served upon them. The parties held a discussion off the record and, when

they returned, respondent stated she was going to grant the protective orders.

Over relators’ objections to the proposed orders, respondent ordered the DA’s

Office to make the unredacted portions of its prosecution file, which had previously

been disclosed under the Michael Morton Act to Clark’s counsel in the criminal case,

available to Amer’s counsel within fourteen days. The order did not require

reproduction of the documents, only supervised inspection. Respondent ordered the

ME’s Office to produce the complete autopsy file of Nadia (excluding any external

or additional expert reports used by the DA’s Office in the criminal prosecution),

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photos and video from the autopsy, and an affidavit authenticating such records.

Both orders provided that “dissemination of the records or their contents is barred to

third parties outside of the litigation” and included a copy of the protective order, as

well as a confidentiality agreement.

This original proceeding followed. In six issues, relators assert they are

entitled to mandamus relief because (1) the motions that were the subject of the

March 25 hearing and the subsequent orders were not directed at the February 28

subpoenas but instead were directed at the earlier notices of deposition and, thus,

respondent has not heard or ruled on the relevant motions; (2) respondent did not

conduct an in camera review of the documents before ordering production or

inspection; (3) allowing the discovery interferes with the prosecution of Clark;

(4) allowing the discovery circumvents the limits of the Michael Morton Act; (5) the

requested discovery constitutes privileged and confidential information; and

(6) relators have no adequate remedy on appeal.

On April 16, 2024, we granted relators’ emergency motion for temporary

relief staying the discovery orders at issue and requested Amer, Clark, and

respondent to file a response, if any, on or before April 26, 2024. Amer filed a

response to which relators replied; no other responses were received by this Court.

Mandamus Relief

To be entitled to mandamus relief, a relator must show that the trial court

clearly abused its discretion and that relator has no adequate remedy by appeal. In

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re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.

proceeding). A trial court abuses its discretion when it acts in an unreasonable and

arbitrary manner or without reference to guiding rules and principles. In re Colonial

Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam). As

to discovery orders, mandamus is proper when the court of appeals cannot cure the

discovery error on appeal such as when an order allows discovery over a timely

asserted and proven privilege. Id.; see also In re Bexar Cnty. Crim. Dist. Att’y’s

Off., 224 S.W.3d 182, 185–90 (Tex. 2007) (orig. proceeding) (concluding work-

product privilege protected DA’s staff from being compelled to provide deposition

or trial testimony pertaining to their file and decision to prosecute and conditionally

granting mandamus relief); cf. In re Westwood Affiliates, L.L.C., 263 S.W.3d 176,

178–79 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding) (explaining that the

supreme court, in Hobson v. Moore, 734 S.W.2d 340, 340–41 (Tex. 1987) (orig.

proceeding), recognized an independent law-enforcement privilege in civil litigation

and concluding that trial court did not abuse its discretion in denying motion to

compel production from Houston Police Department regarding an ongoing

investigation). A nonparty has no right to appeal a court order that compels

discovery and, thus, has no adequate appellate remedy. In re Berry, 578 S.W.3d

173, 182 (Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding).

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Nonparty Discovery

A party may compel discovery from a nonparty only by obtaining a court

order or by serving a subpoena on the nonparty. TEX. R. CIV. P. 205.1. The subpoena

may compel an oral deposition, a deposition on written questions, a request for

production of documents or tangible things served with a notice of deposition on

oral examination or written questions, or a request for production of documents and

tangible things without deposition. Id. The subpoena must be issued in the name

of “The State of Texas”; state the style of the case, the cause number, the court in

which the suit is pending, the issued date, and the time, place, and nature of the

action required; identify the person to whom the subpoena is directed and the party

and party’s counsel who issued the subpoena; include a statement regarding

contempt for not complying; and be signed by the person issuing it. TEX. R. CIV. P.

176.1. Service of the subpoena must be accompanied with a witness fee. TEX. R.

CIV. P. 176.5.

The nonparty may move for a protective order before the time specified in the

subpoena for compliance. TEX. R. CIV. P. 176.6(e); see also TEX. R. CIV. P. 192.6.

Pursuant to rule 176.6, a motion for protective order stays a request for testimony

and production of records until such time as the trial court rules on the motion. TEX.

R. CIV. P. 176.6(e). “The party requesting the subpoena may seek such an order at

any time after the motion for protection is filed.” Id.

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Relators argue that their second motions for protective orders stayed the

requests for discovery in the February 28 subpoenas. Amer responds that the

requested discovery did not change between the notice and the subpoenas and that

he initially provided the notice to give relators more time to comply. Rule 200.1

provides that “[a] notice of intent to take the deposition [on written questions] must

be served on the witness and all parties at least 20 days before the deposition is

taken.” TEX. R. CIV. P. 200.1(a). However, to compel production of documents or

tangible things from a nonparty, a subpoena must be served on the nonparty with a

notice of deposition on written questions. TEX. R. CIV. P. 205.1 (emphasis added);

see also TEX. R. CIV. P. 199.2(b)(5) (“If the witness is a nonparty, the request must

comply with Rule 205 and the designation of materials required to be identified in

the subpoena must be attached to, or included in, the notice.”). The notice may be

served before or at the same time the subpoena is served, but if it is served before, it

must be served at least ten days before the subpoena is served. TEX. R. CIV. P. 205.2.

While it was not improper for Amer to serve the notices on relators before

the actual subpoenas, and the notices included the same items to be produced or

inspected as the subpoenas, relators’ first motions for protective orders and the

hearing set on those motions were premature. Proper notices and subpoenas, which

are required for requests for production on a nonparty, were not served on relators

until February 28, after the March 25 hearing had already been set. Had Amer never

served the required subpoenas, relators would not have been obligated to comply

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with the notices. See In re Guardianship of Benavides, No. 04-13-00196-CV, 2014

WL 1494606, at *2–3 (Tex. App.—San Antonio Apr. 16, 2014, no pet.) (mem. op.)

(concluding nonparty was not required to produce documents when he was not

served with a subpoena as required under the rules and, thus, the trial court abused

its discretion in ordering sanctions). At the hearing, the trial court agreed that the

first set of documents included a notice but not a valid subpoena.

Relators’ second motions for protective orders were filed on March 25, the

same day as the hearing and a day before the deadline to comply with the February

28 subpoenas. A hearing was not set on the second motions, and Amer did not file

a motion to compel.

Amer argues that the subpoenas were served before the hearing and, thus,

respondent had the authority to compel discovery on the basis of those subpoenas.

Amer also argues that the issues presented in relators’ second motions were identical

to the issues presented in their first motions, which relators did not withdraw or

amend, and were presented at the hearing, which relators did not reset. He maintains

that relators failed to prove any asserted privilege. Amer further argues that the

second motions were untimely, and he objected to the second motions being

considered at the hearing.

Respondent, however, did not rule on Amer’s timeliness objection to relators’

second motions for protective orders, nor did respondent indicate at the hearing that

she considered the second motions. The orders also do not indicate a ruling on the

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second motions, which are separately and distinctly titled, “Second Motion for

Protective Order,” as the orders begin, “On this day came to be considered THE

DALLAS MEDICAL EXAMINER’S MOTION FOR PROTECTIVE ORDER (the

‘Motion’)” and “On this day came to be considered THE DALLAS DISTRICT

ATTORNEY’S OFFICE MOTION FOR PROTECTIVE ORDER (the ‘Motion’).”

Additionally, although Amer contends that the issues in the second motions

were identical to the issues in the first motions, he also asserts that relators filed the

second motions to correct deficiencies in their previously filed motions and, thus,

implies that there is some difference between the two. And indeed, our review of

the two sets of motions shows that relators’ arguments asserting certain privileges

were more in depth in the second motions and included an affidavit by the

prosecuting attorney supporting relators’ arguments, which was not included with

the first motions. Furthermore, there was no discussion at the hearing regarding

relators’ asserted privileges, such as the law enforcement privilege, which requires

the trial court to conduct an in camera inspection of the documents sought and make

certain findings before ordering production by the nonparty law-enforcement

agency, see TEX. CIV. PRAC. & REM. CODE § 30.006(c)–(d), nor was there any

discussion as to whether Amer had established good cause for disclosure under the

Michael Morton Act, see TEX. CODE CRIM. PROC. art. 39.14(e)(1). Instead, the

discussion on the record centered on the effect of compelling the production of

documents that would wind up in Clark’s hands even though he was not permitted a

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copy of such documents in his criminal trial. See TEX. CODE CRIM. PROC. art.

39.14(d), (f).

Because we cannot determine whether respondent considered the arguments

and evidence presented in relators’ second motions or refused their consideration, it

is premature for this Court to entertain the merits of relators’ asserted privileges.

See, e.g., In re Gore, 251 S.W.3d 696, 701 (Tex. App.—San Antonio 2007, orig.

proceeding) (explaining that a fair reading of the record revealed that the trial court

did not address the merits of the motion; “[a]ccordingly, the issue is not ripe and we

decline to address it,” but “[w]e have confidence the trial court will consider and

rule on the merits of the motion . . . within a reasonable period of time”); In re R.R.,

26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (“The trial court’s

order does not give any ground for the ruling except the court’s uncertainty of the

law and the pendency of the criminal proceeding. The trial court has not ruled on

any other ground asserted in the motions for protective order; therefore, these issues

are not ripe for review.”).

As to the first motions on which the hearing was set, we agree with relators

that respondent was without authority to grant discovery on notices of subpoenas,

i.e., defective subpoenas. Although the actual subpoenas were served before the

hearing, the hearing was not set to address them. Instead, it was set to address

relators’ motions for protective orders in response to the notices of subpoenas.

Therefore, we conclude that respondent clearly abused her discretion in issuing the

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April 2, 2024 discovery orders and that relators, as nonparties to the underlying civil

suit, are without an adequate remedy on appeal.

Conclusion

Respondent abused her discretion by ordering discovery from nonparties

without hearing their motions for protective orders regarding the subpoenas served

on February 28, 2024. We, therefore, conditionally grant the writ, direct respondent

to vacate her April 2, 2024 discovery orders, and lift our April 16, 2024 stay order.

A writ will issue only if the trial court fails to comply.

240450f.p05
/Craig Smith//
CRAIG SMITH
JUSTICE

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