WRIT NO.

EX PARTE § IN THE §§ DISTRICT COURT OF§

YOUR CLIENT § COUNTY, TEXAS

APPLICATION FOR WRIT OF MANDAMUS

FOR JUDICIAL ENFORCEMENT OF ARTICLE 39.14THAT DISCOVERY BE PROVIDED “AS SOON AS PRACTICABLE”

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW YOU, Petitioner on behalf of YOUR CLIENT,

Applicant, in the above-styled and numbered cause, by and through his

undersigned counsel, and pursuant to Articles 4.01, 11.01 and 11.05 of the

Texas Code of Criminal Procedure, Sections 24.007, 24.008 and 24.011 of

the Government Code and Article V, §8 of the Texas Constitution, moves the

Court to grant this Application for Writ of Mandamus. In support, Applicant

shows the following:

I.

RESTRAINT

Applicant is restrained in his liberty by virtue of his arrest on DATE

OF ARREST and pending prosecution. A copy of the complaint is attached

to this writ application.

II.

JURISDICTION

Ordinarily, this Court obtains jurisdiction after indictment. Tex. Const.

art. V, §12(b). Because Applicant has not been indicted, this writ application

is necessary to confer this Court with jurisdiction to enforce Article 39.14 of

the Code of Criminal Procedure. This Court has broad authority under

Article 5 §8 of the Texas Constitution to issue writs. Moreover, this Court

has the inherent authority to manage its own docket. State v. Medrano, 67

S.W.3d 892 (Tex.Crim.App. 2002). This Court therefore has the authority to

enforce Article 39.14 in this case.

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III.

GROUNDS FOR RELIEF

Article 39.14(a) of the Code of Criminal Procedure states in pertinent part:

“as soon as practicable after receiving a timely request from the defendant the state

shall produce and permit the inspection and the electronic duplication, copying,

and photographing, by or on behalf of the defendant, of [items of evidence].” Tex.

Code Crim. Proc. art. 39.14(a). Because Applicant made such a request, the State

has a non-discretionary duty to provide counsel discovery “as soon as practicable.”

Applicant was arrested on DATE OF ARREST. Applicant’s undersigned

attorney requested discovery on DATE YOU REQUESTED DISCOVERY. As of

DATE YOU ARE FILING THIS WRIT APPLICATION, the State has produced

no discovery. Applicant has no other adequate remedy than this writ application.

The County District Attorney’s office has stated that it will

provide discovery only after indictment. The date of indictment is controlled by

the District Attorney. By making discovery conditional upon its decision to seek

an indictment, the District Attorney has effectively placed prosecutors in control of

the disclosure of discovery items. This local policy conflicts with the plain

language of the statute wherein lawmakers imposed a duty of disclosure “as soon

as practicable” and not “upon the successful acquisition of indictment.”

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At least one judge at the Court of Criminal Appeals agrees. Judge Alcala

concurred in the conclusion that discovery issues are not appropriate for mandamus

action in her Court because the district court is available to oversee discovery

issues. More specifically, she wrote:

[T]he Legislature’s broad use of the phrase “any matter involved inthe action” cannot reasonably be interpreted as applying only to thoseactions for which a formal indictment has been filed because thatphrase plainly contains no such limitation. I, therefore, agree withrelator’s assertion that, by delaying a defendant’s access to discoveryuntil after grand-jury proceedings and indictment, the district attorneyhas effectively read an additional provision into the statute thatchanges the “as soon as practicable” language into “as soon aspracticable after return of indictment by the grand jury.”

Ex parte Carrillo, No. 83, 345-01 (Tex.Crim.App., delivered June 24, 2015), p. 4

(attached).

Article 39.14 does not have any such condition and the District Attorney has

no authority to impose conditions on the discovery provision, which was

substantially rewritten by passage of the Michael Morton Act.1 A district court has

exclusive authority to decide compliance with discovery over a criminal matter

before it. Petitioner moves this Court to enforce this Act by ordering the District

Attorney to terminate its policy of denying discovery until after indictment and to

produce discovery as soon as practicable.

1 The history of Article 39.14 and the passage of Senate Bill 1611 (the Michael Morton Act) isdetailed in Texas Discovery: Where We Were, Where We Are Headed, Keith S. Hampton, Voicefor the Defense (Nov. 20, 2014).

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The County District Attorney’s policy also plainly violates Rule

8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct. As the

Professional Ethics Committee of the State Bar of Texas has reasoned:

Because article 39.14 requires an “open file” policy by prosecutorswithout pre-conditions, prosecutors would violate Rule 8.04(a)(12) ifthey refused to produce and permit the inspection of their file inaccordance with the provisions of article 39.14 unless defense lawyersfirst agreed to waive certain rights of their clients. Under article 39.14– and, therefore, under Rule 8.04(a)(12) – prosecutors are required toproduce and permit the inspection of their files, subject only to thelimitations set forth in article 39.14. Thus, prosecutors would violateRule 8.04(a)(12) if they attempted to impose conditions not found inarticle 39.14 before making the required disclosures.

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R.

Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A

(West 2014). The denial of discovery until it is convenient to the District Attorney

is a unilaterally imposed condition that violates the prosecutor’s ethical obligations

as well as the plain language of the statute. This Court should order the District

Attorney to provide discovery “as soon as practicable” and terminate its conflicting

policy.

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IV.

ENFORCEMENT OF ARTICLE 39.14 SERVES ALL THE INTERESTS OFTHE CRIMINAL JUSTICE SYSTEM

Undersigned counsel seeks discovery now in order to commence defense

counsel’s own investigation and prepare to inform any grand jury that may

consider indictment. The sooner defense counsel can discover the case against his

client, the sooner he can provide effective assistance of counsel and fulfill his a

duty to interview witnesses and to conduct an independent investigation of the

case. Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986).

As the United States Fifth Circuit Court of Appeals has recognized, defense

counsel must “at a minimum…interview potential witnesses and…make an

independent investigation of the facts and circumstances of the case.” Nealy v.

Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985). The purpose of the constitutionally-

imposed duty to investigate is to determine whether a viable defense is available to

the accused. Butler v. State, supra (lack of investigation “ineffective if not

incompetent, where the result is that any viable defense available to the accused is

not advanced”)(quoting Ex parte Lilly, 656 S.W.2d 490 (Tex.Crim.App. 1983)).

But this duty also serves other interests of the criminal justice system as well.

Independent investigations can uncover evidence and witnesses who are

every bit of interest to the State as the defense. Defense attorneys, in service to

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clients and fulfillment of the defense function, often share information that casts

the case in a significantly different light. Defense investigations can thereby be

useful to the prosecution’s goal to see that justice is done.

The sooner defense counsel can obtain discovery, the more quickly this

Court can winnow the vast number of cases to those cases the resolution of which

should be decided by juries. Expeditious discovery will enable the defense to

accomplish this goal. The people of County as well as the various

potential jurors themselves will laud the avoidance of the expense and ordeal of

unnecessary prosecutions. A fair enforcement of the mandatory provisions of

Article 39.14 of the Code of Criminal Procedure is this Court’s path to justice, the

overriding concern of an alert, attentive and serious district court.

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PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that the Court:

1. Issue a writ of mandamus to compel the District Attorney to comply with

Article 39.14 of the Code of Criminal Procedure and provide defense counsel with

discovery as soon as practicable;

2. Issue a writ of mandamus to the District Attorney to terminate its policy of

providing discovery only after indictment as well as its impositions of its own

conditions for discovery;

3. Grant a full and fair evidentiary hearing on all claims raised by this Application;

4. Grant Applicant such other and further relief as may be just and proper.

Respectfully submitted,

PETITIONER ATTORNEY FOR APPLICANT

m

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DECLARATION OF YOUR CLIENT

STATE OF TEXAS §§

COUNTY OF §

“My name is YOUR CLIENT, and I am the Applicant in the above-styled andnumbered Application for Writ of Mandamus. I have read the above and foregoingapplications, and I hereby swear that the facts contained therein are true andcorrect.”

YOUR CLIENT Executed on , 2018

Subscribed and sworn to before me, by the said YOUR CLIENT, this day, 2018.

Notary Public:

OR IF YOUR CLIENT IS IN JAIL:

“I, (insert name and inmate identifying number from Texas Department ofCorrections or county jail), being presently incarcerated in (insert TexasDepartment of Criminal Justice unit name or county jail name) in ______________County, Texas, declare under penalty of perjury that the foregoing is true andcorrect.”

Executed on , 2018, pursuant to Sections 132.001 and 132.002of the Texas Government Code.

YOUR CLIENT

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Exhibit 1

Complaint

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IN THE COURT OF CRIMINAL APPEALSOF TEXAS

NOS. WR-83,345-01 & WR-83,345-02

IN RE DAVID CARRILLO, Relator

ON PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION

TO THE LUBBOCK COUNTY DISTRICT ATTORNEY

REGARDING PRE-INDICTMENT DISCOVERY

ALCALA, J., filed a concurring statement.

CONCURRING STATEMENT

I concur in the Court’s decision to deny leave to file petitions for writs of mandamus

and prohibition sought by David Carrillo, relator, who is formally charged with a complaint

for a criminal offense but has not yet been indicted. In his present petitions, relator seeks to

compel the Lubbock County District Attorney, respondent, to comply with the discovery

requirements of Texas Code of Criminal Procedure Article 39.14. He further seeks to1

prohibit the district attorney’s office from presenting his case to the grand jury before this

See TEX. CODE CRIM. PROC. art. 39.14.1

Carrillo - 2

Court can resolve his pending petitions, and he seeks to prohibit the district attorney’s office

from continuing to enforce its policy of conditioning discovery upon the issuance of an

indictment. Because relator has failed to show that he has no other adequate remedy at law,

I agree with the Court’s determination that such relief is not warranted.

In April 2015, relator was charged by complaint with two counts of murder. Several

days later, relator submitted to the State a request for discovery pursuant to Article 39.14.

According to relator, respondent has not yet provided the requested discovery. In May 2015,

an assistant district attorney informed relator that the district attorney’s office would not turn

over discoverable evidence until after grand-jury proceedings. Relator now asserts that the

State’s failure to turn over discoverable materials under Article 39.14 constitutes a violation

of a ministerial duty. He asks, “Do the discovery requirements of Article 39.14(a) of the

Texas Code of Criminal Procedure begin only after the grand jury has indicted the accused,

and is mandamus relief appropriate to compel a district attorney to comply with Article 39.14

before it has presented its case to the grand jury[?]”

In order to be entitled to mandamus relief, a relator must show two things: (1) that he

has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In

re State ex rel. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013). The ministerial-act

requirement is satisfied if the relator can show a clear right to the relief sought. In re Bonilla,

424 S.W.3d 528, 533 (Tex. Crim. App. 2014). “A clear right to relief is shown when the

facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e.,

Carrillo - 3

from extant statutory, constitutional, or case law sources), and clearly controlling legal

principles.” Weeks, 391 S.W.3d at 122; see also Texas Dept. Of Corrections v. Dalehite, 623

S.W.2d 420, 424 (Tex. Crim. App. 1981) (act is ministerial “where the law clearly spells out

the duty to be performed . . . with such certainty that nothing is left to the exercise of

discretion or judgment”). With respect to the availability of an adequate legal remedy, this

Court has held that even if a relator has a remedy at law, he can show that no adequate

remedy exists if the remedy is so “uncertain, tedious, burdensome, slow, inconvenient,

inappropriate, or ineffective as to be deemed inadequate.” Weeks, 391 S.W.3d at 122.

Similarly, prohibition relief is available only if the relator shows that he has a clear right to

the relief sought and no other adequate legal remedy is available. See In re McCann, 422

S.W.3d 701, 704 (Tex. Crim. App. 2013) (citing State ex rel. Lykos v. Fine, 330 S.W.3d 904,

907 (Tex. Crim. App. 2011)).

With respect to the ministerial duty that relator asserts is at issue in the present matter,

Code of Criminal Procedure Article 39.14 provides in relevant part,

[A]s soon as practicable after receiving a timely request from the defendant the

state shall produce and permit the inspection and the electronic duplication,

copying, and photographing, by or on behalf of the defendant, of any offense

reports, any designated documents, papers, written or recorded statements of

the defendant or a witness, including witness statements of law enforcement

officers but not including the work product of counsel for the state in the case

and their investigators and their notes or report, or any designated books,

accounts, letters, photographs, or objects or other tangible things not otherwise

privileged that constitute or contain evidence material to any matter involved

in the action and that are in the possession, custody, or control of the state or

any person under contract with the state. . . .

Carrillo - 4

TEX. CODE CRIM. PROC. art. 39.14(a). Relator asserts that the “as soon as practicable”

language in Article 39.14 imposes a non-discretionary, ministerial duty on the State to

provide discovery within a reasonable time frame following a proper request. Responding

to the district attorney’s position that the State’s discovery obligations are triggered only by

a formal indictment, relator asserts that the district attorney has “unilaterally interposed [his]

own temporal limitations into the statute.”

Even assuming that relator has shown a clear right to relief under Article 39.14, he has

failed to demonstrate that he lacks an adequate legal remedy and, therefore, he is not entitled

to a writ of mandamus or prohibition. With respect to the requirement of a clear right to

relief, I observe that, as an individual who has been charged by a formal criminal complaint

by the district attorney’s office, relator plainly falls within the provisions of Article 39.14 that

require that discovery be provided “as soon as practicable” following a request from a

“defendant” as to “any matter involved in the action.” Id. Furthermore, the Legislature’s

broad use of the phrase “any matter involved in the action” cannot reasonably be interpreted

as applying only to those actions for which a formal indictment has been filed because that

phrase plainly contains no such limitation. I, therefore, agree with relator’s assertion that,

by delaying a defendant’s access to discovery until after grand-jury proceedings and

indictment, the district attorney has effectively read an additional provision into the statute

that changes the “as soon as practicable” language into “as soon as practicable after return

of indictment by the grand jury.” The statute does not impose any such condition on the

Carrillo - 5

State’s discovery obligations. See id. Nonetheless, even accepting that relator is entitled to

discovery under the statute, relator does not explain how the “as soon as practicable”

language in Article 39.14 could be interpreted as imposing a ministerial duty on the State,

when that language appears to afford the State some discretion in determining a practicable

time frame for turning over discovery. See Dalehite, 623 S.W.2d at 424 (act is ministerial if

“nothing is left to the exercise of discretion or judgment”). Given this language that appears

to afford the State some leeway in determining a feasible time frame for responding to a

discovery request, it is unclear how the State’s duty to provide discovery at any particular

time could be described as “unequivocal” or “dictate[d by] but one rational decision.” See

Weeks, 391 S.W.3d at 121-22.

Even assuming that relator has demonstrated a clear right to relief, I conclude that he

has failed to demonstrate that he lacks any adequate legal remedy, and, therefore, he is not

entitled to a writ of mandamus or prohibition. See id. Relator may seek to challenge the

State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude

evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which

he is accused, he may challenge the State’s failure to comply with discovery requirements

during the course of his direct appeal. Although the potential for review at a later stage is

“not always or automatically an adequate remedy,” absent a particularized showing of2

unique circumstances that might suggest that an appeal from a conviction would be

Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 6482

(Tex. Crim. App. 2005).

Carrillo - 6

inadequate, a relator fails to establish that he is entitled to extraordinary relief. See Smith v.

Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998) (describing mandamus as a “drastic”

remedy, and holding, in context of speedy-trial claim, that direct appeal was adequate remedy

and mandamus relief would not lie). Here, relator has made nothing more than a bare

assertion that he has no adequate remedy at law. He has, therefore, failed to show why a

challenge in the trial court or on direct appeal from a conviction would be an inadequate

remedy.

Even assuming that he has demonstrated a clear right to relief, relator has failed to

show that he lacks an adequate remedy at law. See Weeks, 391 S.W.3d at 121-22. I,

therefore, join this Court’s judgment denying relator leave to file petitions for writs of

mandamus and prohibition.

Filed: June 24, 2015

Do Not Publish

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THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS

Opinion No. 646

November 2014

QUESTION PRESENTED

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

STATEMENT OF FACTS

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

DISCUSSION

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

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

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

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

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

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

CONCLUSION

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