in Re City of Lubbock, Relator ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00070-CV
________________________
IN RE CITY OF LUBBOCK, RELATOR
Original Proceeding
Arising From Proceedings Before the 140th District Court
Lubbock County, Texas
Trial Court No. 2020-421,049; Honorable Douglas H. Freitag, Presiding
September 2, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
In this original proceeding, Relator, the City of Lubbock, seeks to set aside the trial
court’s Order on Amended Ex Parte Motion for Inspection and Release of LPD Records,
directed to the Lubbock Police Department, a department of the City of Lubbock. That
order granted the Amended Ex Parte Motion for In-Camera Inspection and Release of
LPD Records filed by the Real Party in Interest, Rodolfo Zambrano, seeking certain
records in the possession of the Lubbock Police Department. Based on the reasoning
that follows, we deny the petition for writ of mandamus.
BACKGROUND
This original proceeding arises from an ex parte order issued by the 140th District
Court following the motion of Rodolfo Zambrano, the defendant in cause number 2020-
421,049, a criminal case involving sexual assault of a child, pending before that court. 1
Zambrano is the Real Party in Interest in the mandamus proceeding now before us.
In February 2021, Zambrano filed an Ex Parte Motion for Court Ordered Production
of Documents and/or Things. On the same day, the court granted that motion and issued
its Order on Ex Parte Motion for Production of Documents and/or Things. That order
commanded the City of Lubbock to “provide all records held by said entity regarding
J****** G*****, DOB: **/**/****, SSN# ***-**- ****, including but not limited to: records where
she was reported to be a child victim of sexual abuse.”2 Because of the ex parte nature
of the proceeding, the State of Texas was not given notice of either the filing of the motion
or the entry of the order.
Of course, Relator, the City of Lubbock, is not a party to the underlying criminal
prosecution. Notwithstanding that fact, the ex parte order commanded the City to produce
to Zambrano specific police reports concerning allegations of sexual assault by a child
and identify both the child victim and the outcry witness. We note that Zambrano did not
seek the desired information and documentation through a subpoena duces tecum or
1 Zambrano was charged with the offense via indictment filed on September 15, 2020.
2 We have redacted the original language of the order to protect the identity of the child victim.
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through a discovery motion directed to the State of Texas as typically required by the
Texas Code of Criminal Procedure. Rather, Zambrano sought this information through
an ex parte motion and the order granting that motion specifically prohibits the City from
disclosing the existence or contents of the order to the State or to any other party,
including the child victim and outcry witness.
The City did not receive notice of the ex parte motion prior to the issuance of the
ex parte order. Accordingly, the City filed its Response to the Order on Ex Parte Motion
for Court Ordered Production of Documents and/or Things and Motion for Stay and
Protective Order after that order was issued. In that response, the City objected to the
ex parte nature of the proceedings and the issuance of the ex parte order without being
given an opportunity to be heard on the motion. The court granted the City’s request for
rehearing and set a date for that hearing. As before, no notice was provided to the State.
On the day of the rehearing, March 23, 2021, Zambrano filed an Amended Ex
Parte Motion for In-Camera Inspection and Release of LPD Records. This time, the
amended motion requested that the documents Zambrano sought to be produced for in-
camera inspection by the court rather than delivery directly to Zambrano’s attorney. At
the conclusion of the hearing, the trial court vacated the original ex parte order. It also
requested briefing on the issues. On April 1, 2021, the court issued an Order on Amended
Ex Parte Motion for In-Camera Inspection and Release of LPD Records, commanding the
City to produce records for in-camera inspection without notice to the State or any other
party to the underlying proceeding. Further, it is undisputed that the court did not order
that the Texas Attorney General be given notice of a constitutional challenge to any of the
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provisions of the Texas Code of Criminal Procedure pertaining to the discovery or
production of documents.
On April 7, 2021, the City filed a Motion for Stay to file a Petition for Writ of
Mandamus with this court. The trial court entered an Order to Stay on April 8, 2021, and
this petition was filed shortly thereafter.
MANDAMUS STANDARD OF REVIEW
Mandamus is an extraordinary remedy granted only when a relator can show that
(1) the trial court abused its discretion and (2) that no adequate appellate remedy exists.
In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per
curiam). When seeking mandamus relief, a relator bears the burden of proving these two
fundamental requirements. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding).
To establish an abuse of discretion, a relator must demonstrate the trial court acted
unreasonably, arbitrarily, or without reference to any guiding rules or principles. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To
establish no adequate remedy by appeal, a relator must show there is no adequate
remedy at law to address the alleged harm and that the act requested is a ministerial act,
not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist.
Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
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ANALYSIS
ADEQUACY OF APPELLATE REMEDY
At the outset, the City argues it has no adequate remedy at law to challenge the
discovery dispute at issue here because it is a non-party to the underlying criminal case.
Only a defendant and the State of Texas are permitted to appeal a criminal judgment.
TEX. CODE CRIM. PROC. ANN. art. 44.01; 44.02 (West 2018). However, “[m]andamus is a
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.” In re BancorpSouth Bank, No. 05-14-
00294-CV, 2014 Tex. App. LEXIS 4052, at *4 (Tex. App.—Dallas Apr. 14, 2014, orig.
proceeding). Here, the ex parte order requires the City to produce confidential documents
for in-camera review. The City is not a party to this proceeding so it cannot appeal as a
party would following the conclusion of the matter. Further, while this matter is
interlocutory in nature, it is not of the type of proceeding for which interlocutory appeal is
available. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West Supp. 2020).
Accordingly, we find the City has no adequate appellate remedy in this situation and
should be permitted to seek relief pursuant to a petition for writ of mandamus.
We turn now to the City’s contention that the trial court abused its discretion by
acting unreasonably, arbitrarily, or without reference to any guiding rules or principles
when it issued its ex parte order.
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TRIAL COURT’S ABUSE OF DISCRETION
ISSUE ONE—ABUSE OF DISCRETION IN IMPLICIT FINDING THAT PROVISIONS OF CODE OF
CRIMINAL PROCEDURE VIOLATE THE UNITED STATES AND TEXAS CONSTITUTIONS
WITHOUT REQUIRING THAT THE TEXAS ATTORNEY GENERAL BE MADE A PARTY
In the underlying proceeding, Zambrano sought “documents and/or things”
including police offense reports held by the Lubbock Police Department. He specifically
sought a report of sexual assault made by a third party, who is a key witness in the matter
but is not the complainant in this case. The City argues this is a subject that is squarely
addressed by articles 24.02, 3 24.03, 4 and 39.14 5 of the Texas Code of Criminal
3 Article 24.02, entitled Subpoena duces tecum, provides as follows:
If a witness have in his possession any instrument of writing or other thing desired as
evidence, the subpoena may specify such evidence and direct that the witness bring the
same with him and produce it in court.
TEX. CODE CRIM. PROC. ANN. art. 24.02.
4 Article 24.03, entitled Subpoena and application therefor, provides as follows:
(a) Before the clerk or his deputy shall be required or permitted to issue a subpoena in
any felony case pending in any district or criminal district court of this State of which
he is clerk or deputy, the defendant or his attorney or the State’s attorney shall make
an application in writing or by electronic means to such clerk for each witness desired.
Such application shall state the name of each witness desired, the location and
vocation, if known, and that the testimony of said witness is material to the State or to
the defense. The application must be filed with the clerk and placed with the papers
in the cause or, if the application is filed electronically, placed with any other electronic
information linked to the number of the cause. The application must also be made
available to both the State and the defendant. Except as provided by Subsection (b),
as far as is practical such clerk shall include in one subpoena the names of all
witnesses for the State and for defendant, and such process shall show that the
witnesses are summoned for the State or for the defendant. When a witness has been
served with a subpoena, attached or placed under bail at the instance of either party
in a particular case, such execution of process shall inure to the benefit of the opposite
party in such case in the event such opposite party desires to use such witness on the
trial of the case, provided that when a witness has once been served with a subpoena,
no further subpoena shall be issued for said witness.
(b) If the defendant is a member of a combination as defined by Section 71.01, Penal
Code, the clerk shall issue for each witness a subpoena that does not include a list of
the names of all other witnesses for the State or the defendant.
TEX. CODE CRIM. PROC. ANN. art. 24.03.
5 Article 39.14, entitled Discovery, provides in relevant part:
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Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 24.02, 24.03 (West 2009); art. 39.14
(West Supp. 2020). The City further asserts that Zambrano, rather than utilize the
mechanisms already in place for discovery in criminal proceedings, has sought the
production of documents via an ex parte motion, arguing that “under our [Code of Criminal
Procedure] the defendant is forced to disclose pretrial his defensive theories via his
subpoenas in order to obtain documents or other things to which he is constitutionally
entitled.” Zambrano further argued in his motion that “[s]ince this is an issue of
constitutional dimension, the Texas Code of Criminal Procedure must give way to the
rights of the defendant and the duty of counsel. To the extent the Code limits the rights
to gather evidence, it is unconstitutional.” Zambrano then asserted that obtaining a
subpoena in compliance with the Code of Criminal Procedure infringes on his rights under
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and
under Article 1, subsections ten, thirteen, fifteen, and nineteen of the Texas Constitution.
See U.S. CONST. amends. VI, VIII, XIV; TEX. CONST. art. I, §§ 10, 13, 15, 19.
Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of
this code, 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 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. The state may provide to the defendant electronic duplicates
of any documents or other information described by this article. The rights granted to the
defendant under this article do not extend to written communications between the state
and an agent, representative, or employee of the state. This article does not authorize the
removal of the documents, items, or information from the possession of the state, and any
inspection shall be in the presence of a representative of the state.
TEX. CODE CRIM. PROC. ANN. art. 39.14.
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Despite these assertions, Zambrano steadfastly maintains that his ex parte motion
is not a constitutional challenge to any statute that would require notice to the Texas
Attorney General under section 402.010 of the Government Code. 6 TEX. GOV’T CODE
ANN. § 402.010 (West Supp. 2020). Rather, it is the City that argues Zambrano must
contend that provisions of the Texas Code of Criminal Procedure are unconstitutional and
that the trial court erred by implicitly finding that the discovery provisions of the Code
violate his state and federal constitutional rights. The City is simply wrong in this
contention for the reason that articles 24.02 and 39.14 of the Texas Code of Criminal
Procedure are not the exclusive means by which a party may seek the discovery of
6 Section 402.010 of the Government Code provides as follows:
In an action in which a party to the litigation files a petition, motion, or other pleading
challenging the constitutionality of a statute of this state, the party shall file the form
required by Subsection (a-1). The court shall, if the attorney general is not a party to or
counsel involved in the litigation, serve notice of the constitutional challenge and a copy of
the petition, motion, or other pleading that raises the challenge on the attorney general
either by certified or registered mail or electronically to an e-mail address designated by
the attorney general for the purposes of this section.
(a-1) The Office of Court Administration of the Texas Judicial System shall
adopt the form that a party challenging the constitutionality of a statute of
this state must file with the court in which the action is pending indicating
which pleading should be served on the attorney general in accordance
with this section.
(a) A court may not enter a final judgment holding a statute of this state unconstitutional
before the 45th day after the date notice required by Subsection (a) is served on the
attorney general.
(b) A party’s failure to file as required by Subsection (a) or a court’s failure to serve notice
as required by Subsection (a) does not deprive the court of jurisdiction or forfeit an
otherwise timely filed claim or defense based on the challenge to the constitutionality
of a statute of this state.
(c) This section or the state’s intervention in litigation in response to notice under this
section does not constitute a waiver of sovereign immunity.
TEX. GOV’T CODE ANN. § 402.010.
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relevant information under the control of a third party. As such, the trial court did not
implicitly find any statute to be unconstitutional.
Zambrano argues that neither article 24.02 nor 39.14 apply to this situation. He
maintains that “his request is based on the constitutional rights to due process and the
effective assistance of counsel.” He contends that while article 24.02 allows the defense
to seek a subpoena duces tecum, the defense would have to file the subpoena application
with the district clerk under article 24.03. That application, which must be made available
to the State, “would disclose the defense’s reason for filing it in the first place.
Consequently, that article does not apply to the instant situation.” Of article 39.14,
Zambrano states that the “information sought in the instant case is not held by the State.
If the documents were held by the State, there would be no need for any ex parte review
in the first place.” He further maintains that while there was some discussion at the
hearing as to whether the defense challenged the constitutionality of these two articles,
his position then and now is that he asserts he did not challenge their constitutionality
because “neither provision is applicable.” He says “[w]hat is unconstitutional is the City’s
interpretation of either one of the articles as being the exclusive determiner of the issue
and foreclosing the relief Mr. Zambrano seeks.” Rather, he argues, the “trial court has
the inherent authority to provide the requested relief . . . .” That requested relief is “for
direct court intervention and in camera review, a procedure not addressed by any statute.”
As such, Zambrano’s request for the production of evidence is based on his
constitutional right of due process, not that of any statute, including articles 24.02, 24.03,
and 34.19. The City’s assertion that articles 24.02, 24.03, and 39.14 provide the exclusive
vehicle for the relief he requests is the only argument that calls into question the
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constitutionality of those statutes. Because Zambrano’s arguments do not challenge the
constitutionality of any statute, no notice to the Texas Attorney General was necessary.
Issue one is overruled.
ISSUE TWO—ABUSE OF DISCRETION IN ISSUING EX PARTE ORDER TO THE CITY OF
LUBBOCK TO PRODUCE DOCUMENTS FOR IN-CAMERA INSPECTION WITHOUT NOTICE TO
THE STATE OF TEXAS OR ANY OTHER PARTY
The City next argues the trial court abused its discretion by allowing discovery to
be conducted outside the provisions of the Code of Criminal Procedure. Zambrano
disagrees, again arguing “[t]rial courts have the authority to conduct ex parte proceedings
demanded by litigation, even if not specifically mandated by a statute.”
Zambrano’s ex parte motion requested “that the Court order the Lubbock Police
Department . . . to provide all records held by said entities regarding [J.G.] . . . including
but not limited to: records where she was reported to be a child victim of sexual abuse to
the Attorney for Mr. Zambrano. Mr. Zambrano further requests that the Court order the
listed records holders to maintain the confidentiality of this request and not reveal it to the
State.” He contended that the documents and/or items requested were relevant and
material to the development of a defense to his intent to commit the alleged offense and
to the development of issues that mitigate against the imposition of his sentence.
In support of his argument, Zambrano argues that he has been accused of the
serious offense of sexual assault of a child. He contends that the State has “virtually
unlimited subpoena power under the guise of the grand jury” but that defense counsel
has “limited ability to obtain evidence on behalf of the accused.” He said he has “limited
methods to gather records” and that those methods “may be unconstitutional because it
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exposes Mr. Zambrano’s defensive theories to the State.” He further complains that he
“has a constitutional right to present a defense but no means of using it. Counsel has a
constitutional duty, but no means to carry it out.” While defense counsel recognizes that
there are methods available to obtain records in the possession of third parties, he
contends that those methods are inadequate to enable him to prepare an “effective”
defense under the United States and Texas Constitutions because the procedure in place
“allows for the State to be notified of any subpoena the Defense requests. This results in
the Defendant having to disclose information concerning his defense prematurely in order
to utilize his constitutional right to present a defense, commonly called an unconstitutional
condition.” He notes also that a “defense subpoena is inadequate to procure HIPAA
protected records” because only law enforcement and grand jury subpoenas will be
honored by medical service providers for medical records.
In his motion to the trial court, Zambrano cited two cases to support his position.
The first, Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), involved
the question of whether the United States Constitution required that an indigent defendant
have access to the psychiatric examination and assistance necessary to prepare an
effective defense when his sanity at the time of the offense was seriously in question. Id.
at 70. The Court referenced ex parte proceedings only in this context:
A defendant’s mental condition is not necessarily at issue in every criminal
proceeding, however, and it is unlikely that psychiatric assistance of the kind
we have described would be of probable value in cases where it is not. The
risk of error from denial of such assistance, as well as its probable value, is
most predictably at its height when the defendant’s mental condition is
seriously in question. 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.
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Id. at 82-83. See also Rey v. State, 897 S.W.2d 333, 345-46 (Tex. Crim. App. 1995)
(finding structural error when the trial court overruled the defendant’s motion for
appointment of an independent pathologist (separate from the pathologist already
provided to Rey’s co-defendant) because, in doing so, he was denied a basic tool
essential to developing and presenting his defensive theory).
Zambrano also relied on the opinion in Williams v. State, 958 S.W.2d 186 (Tex.
Crim. App. 1997). There, the Court discussed Ake, 470 U.S. 68, and found that “if an
indigent defendant is not entitled to an ex parte hearing on his Ake motion, he is forced
to choose between either forgoing the appointment of an expert or disclosing to the State
in some detail his defensive theories or theories about weaknesses in the State’s case.
This is contrary to Ake’s concern that an indigent defendant who is entitled to expert
assistance have ‘meaningful access to justice,’ and undermines the work product
doctrine.” Williams, 958 S.W.2d at 193-94. The Court declined to hold that for an indigent
defendant to avail himself of one of the “‘basic tools of an adequate defense,’ he may be
compelled to disclose defensive theories to the prosecution.” Id. at 194. The Court held
an indigent defendant is “entitled, upon proper request, to make his Ake motion ex parte.”
Id. Like the Supreme Court, the Texas Court of Criminal Appeals did not otherwise
address ex parte proceedings and did not discuss the propriety of utilizing ex parte
motions as a means to obtain documents and things of the nature at issue here. While
the Courts in Ake and Rey did not otherwise address ex parte proceedings, the use of ex
parte proceedings to protect defensive strategy has been widely accepted by the courts.
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CONCLUSION
We conclude that the trial court acted within its authority when it entered the ex
parte order the subject of this mandamus proceeding. As such, we deny the petition for
writ of mandamus.
Patrick A. Pirtle
Justice
Quinn, C.J., concurring.
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