In Re Texas Department of Criminal Justice, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-91,688-01

IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Relator

ON PETITION FOR A WRIT OF MANDAMUS
CHALLENGING TRIAL COURT’S DISCOVERY ORDERS
IN CAUSE NO. 27347 FROM THE 278TH DISTRICT COURT OF
WALKER COUNTY

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

The Office of Capital and Forensic Writs sought and received a

sealed, ex parte discovery order from the 278th District Court of Walker

County. The order compels Relator, the Texas Department of Criminal

Justice, to provide confidential records to the Office of Capital and
In re Texas Department of Criminal Justice — 2

Forensic Writs. The Office of Capital and Forensic Writs seeks these

records to assist in its preparation of an application for habeas corpus

relief for inmate John Ray Falk, Jr., the Real Party in Interest, from his

capital murder conviction and his death sentence. As custodian of these

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

of mandamus. We grant Relator leave to file and we conditionally grant

mandamus relief.

Recently, this Court held in In re City of Lubbock that a trial court

lacks authority enter an ex parte order to a third party for the production

of records pursuant to an ex parte discovery request. 1 As we explained,
0F

judges are prohibited from permitting or considering ex parte

communications from a party to pending litigation unless expressly

authorized by law. 2 1F And there is no statutory or constitutional

authorization for ex parte criminal discovery. 3 2F

Though this case deals with a post-conviction ex parte discovery

request, it is nevertheless analogous to the ex parte discovery request

at issue in Lubbock in crucial and dispositive respects. Both requests

are general discovery requests. Neither seeks an appointment of

1
In re City of Lubbock, 666 S.W.3d 546, 566 (Tex. Crim. App. 2023).

2
Id. at 556.

3
Id. at 563-64.
In re Texas Department of Criminal Justice — 3

experts to assist in the Real Party In Interest’s defense at trial. There

is no statutory or constitutional authorization for either request to be

considered ex parte. Regardless of whether the law is unclear regarding

a trial court’s authority to order discovery from a nonparty in a post-

conviction proceeding, the law is clear that doing so ex parte must be

expressly authorized. 4 3F There is no express authorization, in Article

11.071 or otherwise, for the ex parte discovery order in this case. 5 And 4F

as we clarified in Lubbock, the authority to consider matters in camera

should not be confused with the ability to proceed ex parte. 6 Cases 5F

purporting to authorize ex parte proceedings when they actually deal

with proceedings in camera do not provide express authorization for the

type of ex parte discovery order at issue in this case. 7 6F

4
Id. at 558 (“Absent express authorization, a trial court must not consider ex
parte communications from one party without notice to the other concerning matters pending
before court.”).

5
Cf. Tex. Code Crim. Proc. art. 11.071, § 3(b) (authorizing ex parte requests for prepayment
of expenses, including expert fees, to investigate and present potential habeas corpus claims)
& (d) (authorizing ex parte claims for reimbursement of counsel for expenses if expenses are
reasonably incurred).

6
Lubbock, 666 S.W.3d at 555-56.

7
Despite the Court’s holding in In re Lubbock, the dissent suggests ample authority supports
discretionary ex parte communications even when not expressly authorized. However, the
authority relied upon does not support the proposition that ex parte communications be used
for routine discovery requests. See United States v. Thompson, 827 F.2d 1254, 1258-59 (9th
Cir. 1987) (noting ex parte proceedings require compelling justification but relying upon
examples that involve in camera proceedings not ex parte proceedings and ultimately
concluding the district court abused its discretion by proceeding ex parte) (citing United States
v. Dupuy, 760 F.2d 1429, 1501 (9th Cir. 1985) (in camera review of plea bargain notes);
United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (in camera review of
In re Texas Department of Criminal Justice — 4

Regardless of whether the law governing post-conviction discovery

is completely settled, the law requiring express authorization for ex

parte communications is settled. 8 Applicant’s ex parte request and the
7F

trial court’s ex parte order were entered prior to Applicant filing an

application for a writ of habeas corpus but there is no express

authorization for such ex parte proceedings pre-filing. Furthermore, the

suggestion that there was no adversarial proceeding to which the State

Border Patrol report); United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir. 1975) (in
camera hearing regarding disclosure of informant’s identity)); United States v. Napue, 834
F.2d 1311, 1320 (7th Cir. 1987) (considering the government’s reasons for objecting to
certain discovery disclosures based on safety concerns in camera but noting “potentially
significant problems” with the use of ex parte communications); People v. Thompson, 384
P.3d 693, 737 (Cal. 2016) (concluding trial court acted properly in excluding defendant from
a hearing between the prosecution and co-defendant that involved co-defendant’s discovery
obligations because defendant was not a “person who [had] a legal interest in the proceeding”
within the meaning of judicial canon prohibiting ex parte proceedings); People v. Valdez, 281
P.3d 924, 955 (Cal. 2012) (state law authorized in camera hearing regarding disclosure of
witness identities and defendant could not complain about such hearings held before he was
arrested or after, which he had advance notice of and failed to object to, and any error in the
court proceeding ex parte in this manner was harmless ); State v. Harris, 245 So.3d 1036
(La. 2018) (holding the district court abused its discretion to proceed ex parte); Barnes v.
Whittington, 751 S.W.2d 493, 495 (Tex. 1988) (refusing to consider affidavits submitted
improperly as ex parte communications noting no emergency justified disregarding the rule
disfavoring such ex parte communications and citing examples of specific statutory
authorizations for ex parte communications); United States Gov't. v. Marks, 949 S.W.2d 320,
325 (Tex. 1997) (district court did not err to hear government’s objection to the taking of a
deposition it alleged would hamper an on-going grand jury investigation in camera holding
such a procedure could be used in an extraordinary circumstance). Several of these cases
appear to fail to appreciate the distinction between ex parte and in camera inspections. In
any event, a recognition that there may be extraordinary, emergency, or limited and
compelling circumstances in which an ex parte communication may be permitted does not
support the use of ex parte communications for general discovery requests like the one at
issue in this case. While certainly a capital murder case is a serious case, an otherwise general
discovery request does not become an extraordinary or emergency circumstance simply
because this is a capital case.

8
Lubbock, 666 S.W.3d at 566.
In re Texas Department of Criminal Justice — 5

was a “party” at that time disregards the State’s on-going discovery

obligation under Article 39.14. 9 In addition to its on-going discovery
8F

obligation, the State maintains an interest in the enforcement of the

penal laws of Texas and by extension the enforcement of the criminal

judgment. 10 Further, in the death penalty context, the State is a party
9F

to the concurrent direct appeal in a capital case. 11 The State is a party
10F

to the post-conviction application in this case. 12 11F And the order in this

case was requested and issued ex parte.

We hold that the trial court lacked authority to enter the ex parte

order for records in this case. 13 We grant leave to file and conditionally
12F

9
Tex. Code Crim. Proc. art. 39.14(k) (“If at any time, before, during, or after trial the state
discovers any additional document, item, or information required to be disclosed . . . the state
shall promptly disclose the existence of the document, item, or information to the defendant
or the court.”).

10
See Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 2008) (recognizing the State
possesses a legitimate interest in “the repose and finality of its convictions”); Ex parte Woods,
296 S.W.3d 587, 613 n. 41 (Tex. Crim. App. 2009) (noting that courts must “seek through
the writ of habeas corpus to balance fundamental fairness to criminal defendants and the
State’s legitimate interest in the finality of litigation.”).

11
See Tex. Code Crim. Pro. art. 11.071 §§ 2(b) (appointment of habeas counsel immediately
after judgment is entered if defendant desires appointment of counsel); 3(a) (mandating that
the habeas investigation begin before and after the appellate record is filed) & 4(a)
(application must be filed not later than the 180th day following appointment of counsel or
the 45th day after the filing of the State’s original brief on direct appeal).

12
See Tex. Code Crim. Pro. art. 11.071 § 7(a) (“The state shall file an answer to the
application for a writ of habeas corpus not later than the 120th day after the date the state
receives notice of the issuance of the writ.”).

13
As in Lubbock, we resolve this case without otherwise addressing the scope of the habeas
court’s inherent authority because it lacked the authority to proceed ex parte. Lubbock, 666
S.W.3d at 553 (“Neither do we need to address whether the trial court had the inherent
authority to issue the order in this case. Rather, as we will explain below, we need only decide
In re Texas Department of Criminal Justice — 6

grant Relator’s petition for a writ of mandamus. The writ of mandamus

will issue only in the event that the district court fails to comply with

this opinion.

Delivered: June 14, 2023

Do Not Publish

whether the ex parte nature of the proceeding was expressly and constitutionally authorized.
It was not.”).