In Re the State of Texas Ex Rel. Reid McCain v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00003-CR
IN RE THE STATE OF TEXAS EX REL. REID MCCAIN
Original Mandamus Proceeding
Before Stevens, C.J., van Cleef and Rambin, JJ.
Opinion by Chief Justice Stevens
Dissenting Opinion by Justice Rambin
OPINION
Relator Reid McCain, in his capacity as Harrison County district attorney and on behalf
of the State, has petitioned this Court for mandamus relief. McCain asks this Court to direct
Respondent, the Honorable Brad Morin, presiding judge of the 71st Judicial District Court of
Harrison County, to rescind his order requiring the State to provide a copy of a recorded forensic
interview of an alleged child victim to Real Party in Interest Lorenza Cooper, Jr. Because (1) the
State has no remedy by way of appeal and (2) the Texas discovery statutes make clear that
recorded interviews given by alleged child victims of sexual abuses may not be duplicated, we
conditionally grant the writ of mandamus.
I. Background
Cooper was indicted in Harrison County for two counts of aggravated sexual assault of a
child.1 In pretrial hearings, Cooper asked the trial court to order the State to provide a copy of
the forensic interview of the alleged child victim. The State protested that such duplication was
specifically prohibited by Texas law. Cooper explained that the duplication request was made
for the convenience of his consulting expert, who apparently does not reside or practice in
Harrison County. Cooper also argued that, if the expert were required to review the interview at
the prosecutor’s office, this would divulge the expert’s identity.
II. Mandamus Review
To be entitled to mandamus relief, the relator must show (1) “that he has no adequate
remedy at law” and (2) that the action “he seeks to compel is ministerial . . . , not [one] involving
1
See TEX. PENAL CODE ANN. § 22.021(a)(2)(B).
2
a discretionary or judicial decision.” State ex rel. Young v. Sixth Jud. Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). This second
requirement may be alternatively stated as requiring the relator to demonstrate “a clear and
indisputable right to the relief sought.” State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App.
2002) (orig. proceeding). “The relief sought must be ‘clear and indisputable’ such that its merits
are ‘beyond dispute.’” State ex rel. Hill v. Ct. of Appeals for Fifth Dist., 34 S.W.3d 924, 927–28
(Tex. Crim. App. 2001) (orig. proceeding) (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893,
897 (Tex. Crim. App. 1985) (orig. proceeding)). “The act must be ‘positively commanded and
so plainly prescribed’ under the law ‘as to be free from doubt.’” State ex rel. Hill, 34 S.W.3d at
928 (quoting Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex. Crim. App. 1992) (orig.
proceeding)). A requested act is only subject to extraordinary relief where “the law clearly spells
out the duty to be performed by an official and does so with such certainty that nothing is left to
the exercise of discretion or judgment.” Tex. Dep’t of Corrs. v. Dalehite, 623 S.W.2d 420, 424
(Tex. Crim. App. 1981) (citing Forbes v. City of Houston, 356 S.W.2d 709, 711 (Tex. App.—
Houston [1st Dist.] 1962, no writ)).
A. No Adequate Remedy at Law
First, the State has no remedy by way of appeal. The State can only appeal certain
actions by the trial court. See TEX. CODE CRIM. PROC. ANN. art. 44.01. A violation of the
discovery statutes is not included in these limited actions. Id.2 If Respondent’s order is
2
“[T]he limitations in Article 44.01 on the State’s right to appeal are no impediment to the State’s use of mandamus
to correct judicial action that is clearly contrary to well-settled law, whether that law is derived from a statute, rule,
or opinion of a court.” State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (orig.
proceeding).
3
enforced, the State cannot challenge that order on direct appeal. “Because the State cannot
appeal the trial court’s order in this case, the State has no remedy other than a writ of mandamus.
Thus, we move to the second question, whether the State has a clear and indisputable right to the
relief sought.” Patrick, 86 S.W.3d at 594.
B. Clear Right to Relief
The Texas discovery statutes make clear that recorded interviews given by alleged child
victims of sexual abuses may not be duplicated. Article 39.14 of the Texas Code of Criminal
Procedure, while generally providing access to, including duplication of, many evidentiary
materials in the State’s possession, specifically states that it is “[s]ubject to the restrictions
provided by Section 264.408, Family Code, and Article 39.15 of [the Texas Code of Criminal
Procedure].” See TEX. CODE CRIM. PROC. ANN. art. 39.14(a).
Article 39.15 of the Texas Code of Criminal Procedure governs “Discovery of Evidence
Depicting or Describing Abuse of or Sexual Conduct By [a] Child or Minor.” TEX. CODE CRIM.
PROC. ANN. art. 39.15. Article 39.15(c) plainly prohibits a trial court from allowing the
duplication of evidentiary materials described in that statute. It provides, “A court shall deny
any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property
or material described by Subsection (a), provided that the state makes the property or material
reasonably available to the defendant.” TEX. CODE CRIM. PROC. ANN. art. 39.15(c). Article
39.15 applies to property or evidentiary materials containing or related to the promotion or
possession of child pornography, and any property or materials “described by Section 2 or 5,
Article 38.071, of [the Texas Code of Criminal Procedure].” TEX. CODE CRIM. PROC. ANN. art.
4
39.15(a)(3). Article 38.071 addresses “the recording of an oral statement of the child” alleged to
be a victim of sexual or aggravated sexual assault, as well as other enumerated offenses. TEX.
CODE CRIM. PROC. ANN. art. 38.071, § 2(a).
For purposes of the instant petition, the Texas Code of Criminal Procedure prohibits the
duplication of evidentiary materials containing, inter alia, “[t]he recording of an oral statement
of the child” alleged to be a victim of sexual or aggravated sexual assault, as well as other
enumerated offenses. TEX. CODE CRIM. PROC. ANN. art. 38.071, § 2(a).
Similarly, Section 264.408 of the Texas Family Code also contains specific prohibitions
against reproducing electronic recordings of interviews with children. TEX. FAM. CODE ANN.
§ 264.408 (Supp.). Section 264.408(d) provides, “An electronic recording of an interview with a
child or person with a disability that is made by a center is the property of the prosecuting
attorney involved in the criminal prosecution of the case involving the child or person.” TEX.
FAM. CODE ANN. § 264.408(d). Then, Section 264.408(d-1) provides,
(d-1) An electronic recording of an interview described
by Subsection (d) is subject to production under Article 39.14,
Code of Criminal Procedure, and Rule 615, Texas Rules of
Evidence.[3] A court shall deny any request by a defendant to copy,
photograph, duplicate, or otherwise reproduce an electronic
recording of an interview described by Subsection (d), provided
that the prosecuting attorney makes the electronic recording
reasonably available to the defendant in the same manner as
property or material may be made available to defendants,
attorneys, and expert witnesses under Article 39.15(d), Code of
Criminal Procedure.
TEX. FAM. CODE ANN. § 264.408(d-1) (emphasis added).
3
Rule 615 is entitled “Producing a Witness’s Statement in Criminal Cases.” TEX. R. EVID. 615.
5
Although Article 39.15 clearly prohibits the kind of duplication and dissemination
ordered here by the trial court, it does provide that “a court should make a child victim’s forensic
interviews reasonably available for inspection, but should not allow the defendant’s team to copy
them.” Gonzalez v. State, 522 S.W.3d 48, 58 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Here, the State made the interview available for Cooper’s counsel. In fact, at the hearing on the
State’s motion to reconsider the trial court’s order to copy and produce the video recording,
Cooper’s trial attorney told the court he had already viewed the recorded interview. This is what
Article 39.15(c) requires. The statute permits nothing further as regards any duplication or
reproduction.
Respondent directs us to In re District Attorney’s Office of the 25th Judicial District, 358
S.W.3d 244 (Tex. Crim. App. 2011) (orig. proceeding) (order). There, the trial court had ordered
the State “to make a copy of the [Children’s Advocacy Center’s (CAC) interview] recording for
the defendant’s counsel.” Id. at 245. The Texas Court of Criminal Appeals found the trial
court’s order within its discretion and “supported by the . . . authority” of Article 39.14(a). Id. at
246. However, that case pre-dates the current version of Article 39.15.4 The 2011 amendment
extended Article 39.15’s prohibition on duplicating discovery materials to include recorded
statements of child complainants made before the filing of an indictment. Such statements
include what are commonly referred to as CAC statements, or forensic interviews of children
who may have been victims of abuse. See TEX. CODE CRIM. PROC. ANN. art. 38.071, § 2(a).
4
See Act of May 27, 2011, 82d Leg., R.S., ch. 1322, §§ 9–10, 2011 Tex. Gen. Laws 3825, 3828.
6
The trial court assured the State that its order would not be a standing discovery order in
that court. The trial court’s order was based on the situation at bar and made to “save the county
money,” perhaps “several thousand[] . . . dollars” to review a one-hour, recorded interview. We
certainly applaud that rationale. But unfortunately, the trial court’s hands were tied by explicit
legislation. Addressing a different discovery argument, the Texas Court of Criminal Appeals
remarked, “That it might be more convenient in facilitating that consultation for a defendant to
be able also ‘to have copies’ of those materials does not mean that a legislative ban on obtaining
copies violates either due process or the right to the effective assistance of counsel.” Powell v.
Hocker, 516 S.W.3d 488, 497 n.15 (Tex. Crim. App. 2017) (orig. proceeding).5 While no
constitutional argument is before us, we note this language simply to point out that convenience
is not a sufficient reason to side-step a clear statutory prohibition.
Because the law prohibits the copying and production of the CAC interview recording,
we find that the State is entitled to the mandamus relief it seeks. As a result, we conditionally
grant the petition for a writ of mandamus and direct the trial court to rescind its order for copying
and production of the CAC interview recording. We are confident the trial court will comply
with this opinion, and the writ will issue only in the event it does not. See TEX. R. APP. P. 52.8.
Scott E. Stevens
Chief Justice
5
Relator Powell was a district attorney seeking to compel Respondent Hocker, a county court at law judge, to vacate
the court’s order allowing a defendant to obtain copies of discovery materials in violation of Article 39.14(f) of the
Texas Code of Criminal Procedure. Powell, 516 S.W.3d at 496. See TEX. CODE CRIM. PROC. ANN. art. 39.14(f)
(Supp.). The Texas Court of Criminal Appeals conditionally granted Powell’s petition. Powell, 516 S.W.3d at 497.
7
DISSENTING OPINION
On mandamus, we are faced with the question of whether “the facts and circumstances
dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal principles.” Bowen v. Carnes,
343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (orig. proceeding) (quoting State ex rel. Young v.
Sixth Jud. Dist. Ct. of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)).
That is the “ministerial act” standard. Id.In my view, the petitioner did not meet that standard.
Perhaps mandamus could one day be a matter of “both . . . and” instead of “either . . . or.”
Which is to say that to my mind, this could well be a case where the trial court did not abuse its
discretion, though, ultimately, a higher court could find that the trial court relied on an erroneous
interpretation of the law. As things stand, and in such a case, the ministerial act standard puts
intermediate courts of appeal on the horns of a dilemma. Either we afford the trial court wide
discretion, even discretion to rely on an erroneous interpretation of the law, or we provide a
proper interpretation of the law and, in so doing, declare that the trial court has abused its
discretion. To me, neither option seems quite fitting here. If we had the option both to find that
the trial court acted within its discretion and, even so, to proceed to provide a proper
interpretation of the law for use in future cases, then I might well have joined the majority.
The top-level question here is whether the trial court could have made more than one
rational decision. In conjunction with that top-level question are the embedded subsidiary
questions within the ministerial act standard, such as whether the law in this area is equivocal or
8
unsettled. On matters of statutory interpretation, the ministerial act inquiry can, but does not
always, produce a different result from a statutory interpretation inquiry as might be conducted
on regular appeal. Both involve assessing the rules of statutory interpretation implicated by the
question at hand. Both involve assessing the prior judicial precedents regarding the statute(s) at
issue. For inferior courts such as intermediate courts of appeal, and the trial court, part of the
process of assessing precedents includes viewing the decisions of higher courts in light of the
duty of obedience. Where the processes differ is in “one rational decision” and its subsidiary
inquiries. Completing the statutory interpretation process is not required to complete the
ministerial act inquiry. If, along the path of statutory interpretation on mandamus review, it
becomes apparent that more than one rational choice was available to the trial court, then the
journey has reached its end and must stop. Stop, even without coming to a final conclusion on
the interpretation of the statute. Because, to proceed with interpreting the statute, and to then
look back with hindsight and its inherent bias on the decision of the trial court would, in practical
effect, eliminate the discretion afforded to the trial court. This is not to say that any grant of
mandamus is inherently a matter of hindsight. In a given mandamus case, it is entirely possible
to start down the trail of statutory interpretation, to discover no rational forks in the road, and
therefore to proceed with full and final interpretation of the statute.
This case involves four statutes and a rule bearing on the production of recordings of
child interviews in sexual assault cases, particularly interviews conducted under the auspices of a
Children’s Advocacy Center. TEX. CODE CRIM. PROC. ANN. art. 38.071, art. 39.14 (Supp.),
art. 39.15; TEX. FAM. CODE ANN. § 264.408, TEX. R. EVID. 615.
9
The question is whether—when those statutes are viewed through the lens of the
mandamus standard—and through the additional lens of the duty of inferior courts to follow the
decisions of the Court of Criminal Appeals—the trial court had discretion to avoid the expense
of a taxpayer-provided defense expert traveling for an on-site review of the recording by
ordering that the prosecutor copy the video recording and send it to the defense expert.6 That
was the decision made by the trial court.
There was a time when trial courts unmistakably had discretion to order the recordings to
be copied. That was by virtue of a 2011 decision of the Texas Court of Criminal Appeals based
on then-current laws. There have been several statutory changes since then. After those
changes, the Court of Criminal Appeals considered the question of video recordings again but
did not issue a precedential decision. Since 2011, the Court of Criminal Appeals also issued
precedential decisions that addressed statutes bearing on the question at hand. One of the
statutes at issue was thereafter amended yet again. The end result, in my view, is that more than
one rational choice was open to the trial court.
I. Timeline
The sequence of events in this case implicates a welter of rules of statutory interpretation.
Before addressing the rules of statutory interpretation, a review of the judicial decisions and
statutes is helpful.
6
Under a protective order that subjects the defense expert to punishment by the court if the recording is mishandled.
10
A. March 2011: Trial Court Authority to Order Copying Affirmed
To begin with, there was precedent for trial courts having discretion regarding the manner
of production of recordings of child interviews in sexual assault cases. On March 30, 2011, the
Court of Criminal Appeals addressed a trial court order requiring the State to make a copy of a
Child Advocacy Center recording for review by defense counsel in a sexual assault case. In re
Dist. Att’y’s Off. of 25th Jud. Dist., 358 S.W.3d 244, 245 (Tex. Crim. App. 2011) (orig.
proceeding).7 In that case, the Court of Criminal Appeals found that trial courts had discretion to
permit copying. Id. at 246 (“The [trial] court’s order for the State to make the copy, which is a
task both easy and inexpensive, was reasonable. It also was authorized by the statute.”).
However, “the statute” at issue there was not Article 39.15 of the Texas Code of Criminal
Procedure, because, at that time, Article 39.15 did not directly address recordings of child
interviews in sexual assault cases.
Instead, In re District Attorney’s Office of 25th Judicial District was decided on how
recordings of child interviews fit within the then-current version of Article 39.14, the general
statute governing pretrial discovery in criminal cases. Id.; see also id. at 246–48 (Keller, P.J.,
dissenting).
B. Early 2011: The Prior Version of Article 29.15 of the Texas Code of
Criminal Procedure
In early 2011, Article 39.15 dealt with child pornography:
7
The copying in that case was for use by defense counsel, not by a defense expert. However, Article 39.14(a) was
held to permit copying by “or on behalf of” the defendant’s counsel. In re Dist. Att’y’s Off. of 25th Jud. Dist., 358
S.W.3d at 245 (quoting TEX. CODE CRIM. PROC. ANN. art. 39.14(a)).
11
Art. 39.15. DISCOVERY OF EVIDENCE THAT CONSTITUTES CHILD
PORNOGRAPHY. (a) In the manner provided by this article, a court
shall allow discovery under Article 39.14 of property or material
that constitutes child pornography, as described by Section
43.26(a)(1), Penal Code.
(b) Property or material described by Subsection (a)
must remain in the care, custody, or control of the court or the
state as provided by Article 38.45.
(c) A court shall deny any request by a defendant to
copy, photograph, duplicate, or otherwise reproduce any property
or material described by Subsection (a), provided that the state
makes the property or material reasonably available to the
defendant.
(d) For purposes of Subsection (c), property or
material is considered to be reasonably available to the defendant
if, at a facility under the control of the state, the state provides
ample opportunity for the inspection, viewing, and examination of
the property or material by the defendant, the defendant's attorney,
and any individual the defendant seeks to qualify to provide expert
testimony at trial.
Act of May 18, 2009, 81st Leg., R.S., ch. 276, § 3, 2009 Tex. Gen. Laws 732, 733, amended by
Act of May 27, 2011, 82d Leg., R.S., ch. 1322, §§ 9, 10, 2011 Tex. Gen. Laws 3825, 3828 (eff.
Sept. 1, 2011) (current version at TEX. CODE CRIM. PROC. art. 39.15.)
As of early 2011, then, Article 39.15 did not deal with recordings of child interviews, and
hence In re District Attorney’s Office of 25th Judicial District did not discuss Article 39.15 when
addressing the handling of child interviews. This justice has not located any decision declaring a
recording of a child interview to be child pornography under Article 39.15 in its early 2011 form
(with child pornography being defined by the statute referenced within Article 39.15, namely
Section 43.26 of the Texas Penal Code, “Possession or Promotion of Child Pornography”). This
12
is not surprising, since interviews could be expected to occur in a safe setting, whereas Section
43.26 defines child pornography as “visual material that visually depicts a child younger than 18
years of age at the time the image of the child was made who is engaging in sexual conduct . . . .”
TEX. PENAL CODE ANN. § 43.26(a)(1) (emphasis added). Given the absence of any discussion of
the then-current version of Article 39.15, it appears that the recording in In re District Attorney’s
Office of 25th Judicial District did not meet the definition of child pornography. See In re Dist.
Att’y’s Off. of 25th Jud. Dist., 358 S.W.3d at 245. Consequently, the three manner-of-production
provisions of Article 39.15 do not appear to have been at issue in In re District Attorney’s Office
of 25th Judicial District. See id.But this does not mean that the early 2011 version of Article 39.15 is irrelevant.
The structure of the present-day Article 39.15 was already in place in early 2011.
Article 39.15, as of the beginning of 2011, had one subject-matter provision making child
pornography discoverable and three provisions regarding the manner of production for that
subject matter. Those manner-of-production provisions required that the material must remain in
the custody of the State or the court; prohibited copying of the material; and statutorily
determined that, if a court required the State to make the material “reasonably available to the
defendant,” that duty would be discharged by providing “ample opportunity for the inspection
viewing, and examination” at a facility under the State’s control. See Act of May 18, 2009, 81st
Leg., R.S., ch. 276, § 3, 2009 Tex. Gen. Laws 732, 733, amended by Act of May 27, 2011, 82d
Leg., R.S., ch. 1322, §§ 9, 10, 2011 Tex. Gen. Laws 3825, 3828 (eff. Sept. 1, 2011) (current
version at TEX. CODE CRIM. PROC. art. 39.15.)
13
C. January to May 2011: Article 39.15 of the Texas Code of Criminal
Procedure Takes its Current Form
The Texas Legislature amended Article 39.15 during the 82nd Regular Session.
In so doing, the Legislature expanded the scope of the subject matter covered by Article
39.15.
The bill containing that amendment was filed on January 25, 2011, meaning it was filed
before In re District Attorney’s Office of 25th Judicial District. It appears that the relevant
language in the bill, the language amending Article 39.15, was inserted after In re District
Attorney’s Office of 25th Judicial District was decided.
On May 24, 2011, during the waning days of the 82nd Regular Session, on the second
House reading of Senate Bill 407, Representative Peter Gallego offered the following floor
amendment to Senate Bill 407 (as shown from this excerpt from the relevant page of the House
Journal):
14
This is the first appearance in the record of S.B. 407 of a reference to Article 38.071. It is
also the first appearance in the record of what would prove to be the final language of Article
39.15.
Representative Gallego’s amendment was passed by the House on May 25, 2011, the
Texas Senate conferred with the amendment on May 27, 2011, the bill was sent to the governor
on May 30, 2011, and the governor signed the bill into law on June 17, 2011. There have been
no subsequent amendments.
Therefore, on September 1, 2011, Article 39.15 of the Texas Code of Criminal Procedure
took effect.
Art. 39.15. DISCOVERY OF EVIDENCE DEPICTING OR DESCRIBING ABUSE OF OR
SEXUAL CONDUCT BY CHILD OR MINOR
(a) In the manner provided by this article, a court shall allow
discovery under Article 39.14 of property or material:
(1) that constitutes child pornography, as described by Section
43.26(a)(1), Penal Code;
(2) the promotion or possession of which is prohibited under
Section 43.261, Penal Code; or
(3) that is described by Section 2 or 5, Article 38.071, of this
code.
(b) Property or material described by Subsection (a) must remain in
the care, custody, or control of the court or the state as provided by Article 38.45.
(c) A court shall deny any request by a defendant to copy, photograph,
duplicate, or otherwise reproduce any property or material described by
Subsection (a), provided that the state makes the property or material reasonably
available to the defendant.
15
(d) For purposes of Subsection (c), property or material is considered
to be reasonably available to the defendant if, at a facility under the control of the
state, the state provides ample opportunity for the inspection, viewing, and
examination of the property or material by the defendant, the defendant’s
attorney, and any individual the defendant seeks to qualify to provide expert
testimony at trial.
TEX. CODE CRIM. PROC. ANN. art. 39.15.
There being no subsequent amendments, this is the version of Article 39.15 that has been
in effect from September 1, 2011, to the present.
D. What Changed, and What did not: Comparing the Versions of Article 39.15
The amended (and current) version of Article 39.15 covers three subject matters, with
two of them being new as compared to the early 2011 version. The two new subject matters are
what is commonly referred to as “sexting” and recordings of statements by children, which were
added as Article 39.15, subsections (a)(2) and (3). The three provisions regarding the manner of
production remain unchanged from the version in effect at the start of the 82nd Legislature.
More specifically:
1. Child Pornography
This subject matter remained the same, though it was moved into a subsection, from
Article 39.15(a) to Article 39.15(a)(1).
2. “Sexting”: Section 43.261 of the Texas Penal Code
The first new subject matter, sexting, was added by reference to a Penal Code provision.
Article 39.15(a)(2), referring to Section 43.261 of the Penal Code (“Electronic Transmission of
Certain Visual Material Depicting Minor”). Section 43.261 was an entirely new statute, created
during the 82nd Legislature, which is to say that Section 43.261 was “new new” in the sense that
16
it was a new addition to Article 39.15 and that Section 43.261 itself was new. That subject
matter is not directly at issue in this case, though, as will be discussed below, it is a key part of
the context for the amendments to Article 39.15.
3. The “Video Statute”: Article 38.071
The second new subject matter added to Article 39.15 in 2011 was recordings of
statements by children, from both before and after a defendant is charged with an offense.
Article 39.15(a)(3) added this new subject matter by reference to Article 38.071, Sections 2 and
6, of the Texas Code of Criminal Procedure. That provision of the Code of Criminal Procedure
concerns “Testimony of Child Who is Victim of Offense,” specifically evidence at “a hearing or
proceeding in which the court determines that a child younger than 13 years of age would be
unavailable to testify in the presence of the defendant about an offense defined by [listed
statutory references of offenses].” TEX. CODE CRIM. PROC. ANN. art. 38.071, § 1. This, however,
was a “new old” subject matter, in the sense that it was new to Article 39.15, but Article 38.071,
Sections 2 and 5, had been around since 2001.8
The Court of Criminal Appeals has referred to these sections of Article 38.071 as the
“video statute,” describing it as follows: “The video statute creates a hearsay exception for a
child’s video-or audio-recorded pre-trial statements, but only if stringent requirements are met,
including that the child is unavailable to testify at trial and that the interviewer is a neutral person
8
They remain so today. Article 38.71 was amended in 2011, and then again in 2021, but neither of those revisions
impacted the language of Sections 2 and 5; both of those revisions involved updates to the list of offenses in
Section 1, and none of those revisions impacted the indicted offenses here, aggravated sexual assault under Section
22.021 of the Texas Penal Code. As discussed in section I.F. infra, however, Article 38.71 has been found to be
unconstitutional.
17
experienced in child-abuse cases or a child-abuse expert.” Bays v. State, 396 S.W.3d 580, 589
(Tex. Crim. App. 2013).
4. Unchanged Manner of Production Provisions
Again, though new subject matters were added in Article 39.15, subsections (a)(2) and
(a)(3), there were no changes to Article 39.15, subsections (b), (c), and (d), regarding the manner
of production of material falling within the subject matters set forth in Article 39.15(a).
E. The Circumstances of the 2011 Amendment to Article 39.15 of the Texas
Code of Criminal Procedure
At this point, a digression to examine Senate Bill 407 prior to May 18, 2011, is in order.
This is done not to delve into legislative history, but to understand context.9
Prior to May 18, 2011, the legislative history of Senate Bill 407 shows the following:
On January 25, 2011, Senator Kirk Watson filed Senate Bill 407. At that time, S.B. 407
did not contain the language of the above-cited floor amendment to Article 39.15. Indeed, it did
not address Article 39.15 at all.
Instead, S.B. 407 was focused on the multi-faceted problem of what to do about the
electronic transmission of sexually explicit photographs, commonly known as “sexting,” and
more specifically, about sexting by, to, and between minors. This was largely a new
phenomenon made possible by the advent and then widespread adoption of camera-equipped
mobile phones.
9
At no point is any statement by any individual legislator, or any group of legislators, used in the interpretation of
Article 39.15. Indeed, the record reveals no statement specifically addressing Article 39.15.
18
Under then-existing laws, all those found guilty of sexting were subject to incarceration
as a felon, as well as to a lifetime designation as a sex offender. S.B. 407, as filed, proposed,
among other things, the addition of a new section of the Penal Code which would provide
prosecutors with options for less severe penalties for sexting between minors, as well as an
amendment to the Code of Criminal Procedure to grant trial courts sentencing authority to
mandate education regarding the ill effects of sexting and the potential legal repercussions of any
future sexting. On February 14, 2011, Representative (and former Speaker) Tom Craddick filed
an identical companion bill in the House, House Bill 1309.
On March 29, 2011, and then again on the afternoon of April 5, 2011, the Senate
Criminal Justice Committee held hearings and took testimony on S.B. 407. Beginning during the
lunch hour of that same day, April 5, 2011, the House Committee on Criminal Jurisprudence
held a hearing and took testimony on H.B. 1309.10
Between them, the two committees heard testimony from representatives of the Office of
the Attorney General, the American Civil Liberties Union, the Burnet County Attorney’s Office,
the Council of School Attorneys, as well as the Texas District and County Attorneys Association.
The committees also heard from individual speakers including a senior-status judge and a
criminal defense attorney who appeared both in her professional capacity and in her capacity as
the mother of a teenaged son. In addition to those who testified, many organizations and
individuals attended the hearings, registering their positions on the bills. These include the
10
House Hearing video: https://tlchouse.granicus.com/MediaPlayer.php?view_id=26&clip_id=3964 (last visited
June 16, 2023). Senate Hearing video: https://tlcsenate.granicus.com/MediaPlayer.php?view_id=12&clip_id=1854
(last visited June 16, 2023). Senate Hearing video April 5: https://tlcsenate.granicus.com/MediaPlayer.php?view_
id=12&clip_id=1407 (last visited June 16, 2023).
19
Association of Texas Professional Educators, the Bexar County Criminal District Attorney’s
Office, Children’s Advocacy Centers of Texas, Inc., Texans Care for Children, The Texas
Association for the Protection of Children, the Texas National Association for the Advancement
of Colored People, the Texas Parent Teacher Association, the Willacy County and District
Attorney’s Office, and the Uvalde County Attorney. Further, the committees had at their
disposal the expertise of the Chief of Criminal Investigation of the Office of the Attorney
General, as well as the Director of the Texas School Safety Center.
During the hearings of the Senate Criminal Justice Committee, Senator Watson admitted
that the perfect law was likely unattainable, but he expressed hope that, through discussion and
collective wisdom, it would be possible to craft an approach that balanced the competing
concerns implicated by all the myriad of ways in which sexting might occur, e.g., as part of a
consensual relationship between similar-aged teens, as a form of harassment between teens, or
even worse. Senator Watson acknowledged that the testimony shed light on considerations that
needed to be addressed by modifying the original language of S.B. 407. Multiple commentors
spoke to the complexities of the issues. Some observed that they had difficulty simplifying their
views to being “for” or “against” the bill because they were very much for the Texas Legislature
taking on the subject and agreed with parts of the proposals under discussion but had concerns
with other parts of those proposals.
At the hearings, there was no express mention of Article 39.15. However, among the
concerns raised was the handling of evidence regarding sexting.
20
F. September 2011: Article 38.071 of the Texas Code of Criminal Procedure
Declared Unconstitutional
As noted above, when the Legislature amended Article 39.15 in 2011, it added the
subject matter of video recordings of child interviews by Article 39.15(a)(3)’s reference to
Article 38.071, Sections (2) and (5).
But a significant part of Article 38.071 was declared unconstitutional by the Court of
Criminal Appeals in September 2011, just as Article 39.15(a)(3) took effect. Coronado v. State,
351 S.W.3d 315, 317 (Tex. Crim. App. 2011) (“Although we agree that there must be balance
between a defendant’s right to confrontation and a societal need to protect fragile and
traumatized child victims, that balance cannot constitutionally be struck by the method set out in
Section 2 of Article 38.071.”).
The Court of Criminal Appeals reached this conclusion by observing that recorded
interviews are “testimonial” for purposes of the Confrontation Clause. Id. at 324 (citing Davis v.
Washington, 547 U.S. 813, 828 (2006) (“Virtually all courts that have reviewed the admissibility
of forensic child-interview statements or videotapes after the Davis decision have found them to
be ‘testimonial’ and inadmissible unless the child testifies at trial or the defendant had a prior
opportunity for cross-examination.”)).
The Court of Criminal Appeals subsequently held that video recordings of child
interviews could not be admitted under the “outcry” statute, Article 38.072 of the Texas Code of
Criminal Procedure. Bays v. State, 396 S.W.3d 580, 590 (Tex. Crim. App. 2013) (“To permit
admission of a complainant’s videotaped statement under the more lenient outcry statute would
undermine the video statute’s rigid unavailability requirement and its requirements aimed at
21
guaranteeing the expertise and neutrality of the interviewer.”). In the same decision, the Court of
Criminal Appeals found that outcry testimony was a constitutionally permissible hearsay
exception so long as the procedural prerequisites are met and both the victim and the person to
whom the outcry statement was made are available for cross-examination for Confrontation
Clause purposes. Id. at 581–82, 584 (“properly designated outcry witness”), 589–90.11 Video
evidence of the outcry, however, was found to be outside the scope of the outcry statute. Id. at
588.12
In sum, the recorded video statements of children used in sexual assault cases are
testimonial for Confrontation Clause purposes, so the child must testify at trial, or the
defendant’s rights under the Confrontation Clause must be otherwise protected. Coronado, 351
S.W.3d at 324.
G. 2017: In re State ex rel. Tharp and Powell v. Hocker
In 2017, the Court of Criminal Appeals revisited the issue of video recordings of
interviews of children in sexual assault cases. In re State ex rel. Tharp, No. WR-86,409-01,
“[W]e determine that Article 38.072 of the Texas Code of Criminal Procedure, the outcry statute, is a hearsay
11
exception statutorily limited to live testimony of the outcry witness.” Bays, 396 S.W.3d 581. [T]he outcry statute
applies only when the victim is available to testify.” Id. at 589.
12
As stated in Bays,
In light of the belief that a trusted adult would usually be the outcry witness, it is reasonable to
assume that this witness would have neither the opportunity nor the desire to videotape a child’s
outcry statement as that child reveals for the first time the intimate details of an abusive sexual
encounter. Because it envisioned that the child’s outcry would take the form of a spontaneous
verbal communication to a trusted adult, it is reasonable to conclude that the Legislature did not
intend to permit admission of a child’s videotaped statements, which suggest a lesser degree of
spontaneity (and, perhaps, reliability).
Id. at 588.
22
2017 WL 4160990 (Tex. Crim. App. Sept. 20, 2017) (not designated for publication). Though
this case was cited in the briefing, it is unpublished, and is therefore not a binding ruling on
either Article 39.15 or, more broadly, on the subject of the handling of the video recordings.
TEX. R. APP. P. 77.3 (“Unpublished opinions have no precedential value and must not be cited as
authority by counsel or by a court.”).
Also, in 2017, in a published decision, the Court of Criminal Appeals addressed the
handling of discovery under Article 39.14. Powell, 516 S.W.3d 488. It was a driving while
intoxicated case, so the specific discovery at issue here was not addressed. Id. Instead, the
question was whether, under Article 39.14(f), a defendant could do more than view materials in
her attorney’s office, i.e., whether the defendant could have her own copies of discovery
material. Id. at 490–91.13 The defendant in Powell did not rely on the express text of Article
39.14(f). Instead, the defendant asserted that “the balance” of the statute gives trial courts
“sufficient leeway . . . to order that the defendant be provided copies in a particular case when
good cause is demonstrated why doing so would facilitate fair representation of the defendant.”
Id. at 496. The Court of Criminal Appeals, however, rejected that approach: “Nowhere does the
statute contemplate that a trial court should be able to second-guess the legislative judgment that
a represented defendant simply may not be permitted to obtain copies of discovery materials
from his counsel.” Id. Significantly, though Powell prohibited providing copies directly to the
13
“She did not claim that her client had been unable to ‘view’ the discovery materials in her possession, as the statute
expressly permits. Instead, she claimed that it was important that her client also be able to obtain her own copies of
those materials in order to effectively help counsel prepare her defense.” Powell, 516 S.W.3d at 491.
23
defendant, the case was premised on the ability of the defendant’s attorney to have a copy of
discovery materials. Id. at 491.
H. 2019: Amendment of Section 264.408 of the Texas Family Code
Subchapter E of Chapter 264 of the Texas Family Code concerns Children’s Advocacy
Centers, such as The Martin House Children’s Advocacy Center, under whose auspices the
interview at issue here was conducted. Within that subchapter is Section 264.408 of the Texas
Family Code, which deals with the handling of CAC records. The statute provides that videos of
interviews can be disclosed to other governmental agencies, medical professionals, and
advocates for the alleged victim. TEX. FAM. CODE ANN. § 264.408(a)(1), (2).14 However,
regarding defendants, the statute was amended in 2019 to state:
(d-1) An electronic recording of an interview described by
Subsection (d) is subject to production under Article 39.14, Code
of Criminal Procedure, and Rule 615, Texas Rules of Evidence.[15]
A court shall deny any request by a defendant to copy, photograph,
duplicate, or otherwise reproduce an electronic recording of an
interview described by Subsection (d), provided that the
prosecuting attorney makes the electronic recording reasonably
available to the defendant in the same manner as property or
material may be made available to defendants, attorneys, and
14
Stating that CAC records can be disclosed to:
(1) the department, department employees, law enforcement agencies, prosecuting attorneys,
medical professionals, and other state or local agencies that provide services to children and
families; and (2) the attorney for the alleged victim who is the subject of the records and a court-
appointed volunteer advocate appointed for the alleged victim under Section 107.031.
15
Rule 615 is titled “Producing a Witness’s Statement in Criminal Cases.” TEX. R. EVID. 615.
24
expert witnesses under Article 39.15(d), Code of Criminal
Procedure.
TEX. FAM. CODE ANN. § 264.408(d-1) (emphasis added).16
The 2019 amendment, though, merely inserted the term “electronic recording” for what
had previously been “video recording,” “video recording of an interview,” and in the statute’s
original form, “videotaped interview.”17
One thing that is notable is that the express text of Section 264.408(d-1) of the Texas
Family Code makes an in pari materia bundle of itself and Article 39.14, Article 39.15, and Rule
615 of the Texas Rules of Evidence.
What is also notable is that the 2019 amendment comes after Coronado and Powell and
left in place the language that, at least initially, electronic recordings of interviews are “subject to
production” under Article 39.14 (as well as under Rule 615 of the Texas Rules of Evidence) with
Article 39.15 coming into play if the defendant makes a “request” for the video. In other words,
it sets in place a circular analysis where Section 264.408(d-1)’s “subject to production” under
Article 39.14 would need to be weighed against the statutory definition of “reasonably available”
under Article 39.15(d) as well as against the defendant’s right to witness statements under Rule
615 of the Texas Rules of Evidence. Further, by referencing Article 39.14, Section 264.408(d-1)
of the Texas Family Code references the statute that was addressed by the Court of Criminal
Appeals in In re District Attorney’s Office of 25th Judicial District.
16
Act of May 16, 2019, 86th Leg., R.S., ch. 396, § 8, 2019 Tex. Gen. Laws 735, 739.
17
Act May 23, 2013, 83d Leg., R.S., ch. 1069 (H.B. 3259), § 3, 2013 Tex. Gen. Laws 2550, 2550 (eff. Sept. 1,
2013), Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 33, 1997 Tex. Gen. Laws 2012, 2021 (eff. Sept. 1, 1997).
25
II. Statutory Interpretation Overview
When courts engage in their law-interpreting function, “[t]he end goal is interpreting the
text of the statute.” Watkins v. State, 619 S.W.3d 265, 272 (Tex. Crim. App. 2021), reh’g denied
(Apr. 14, 2021). That means every word of the statute: “we must presume that every word in a
statute has been used for a purpose and that each word, phrase, clause, and sentence should be
given effect if reasonably possible.” Id. The mandate to give effect to “every word” is broad.
Id. In part, this is because of the even broader “entire act” mandate. Id. The courts are to
consider any particular provision as part of the entire Legislative enactment in which it is
contained. Id. (footnotes omitted) (citations omitted).18 The “every word” mandate is broader
still because of the “in pari materia” rule of interpretation. Related statutory provisions should
be construed, where possible, as a collective whole, even when they are not part of the same
Legislative enactment:
“It is a settled rule of statutory interpretation that statutes that deal
with the same general subject, have the same general purpose, or
relate to the same person or thing or class of persons or things, are
considered as being in pari materia though they contain no
reference to one another, and though they were passed at different
times or at different sessions of the legislature.”
Diruzzo v. State, 581 S.W.3d 788, 799 (Tex. Crim. App. 2019) (quoting Cheney v. State, 755
S.W.2d 123 (Tex. Crim. App. 1988)). Effectively, then, statutes that are part of an in pari
materia group are to be read “as though they were parts of one and the same law.” Id. (emphasis
added).
“We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize
18
provisions and avoid conflicts. When we are dealing with the passage of a particular act, such as the one at issue
here, we look to the entire act in determining our Legislature’s intent with respect to a specific provision.” Watkins,
619 S.W.3d at 272 (citations omitted) (emphasis added).
26
Consequently, “the text of the statute” includes the entire Legislative Act in which a
provision in question is found, as well as those statutes that are in pari materia with the provision
in question. See Ex parte Kibler, Nos. WR-91,197-01 WR-91,197-02, 2022 WL 4360668, at *3
(Tex. Crim. App. Sept. 21, 2022) (plurality op.) (orig. proceeding), reh’g denied (Nov. 9, 2022)
(“We do not focus solely upon a discrete provision; we look at other statutory provisions as well
to harmonize provisions and avoid conflicts.”).
The Legislature’s words are to be given the meaning those words had at the time the
Legislature chose them: “We focus our attention on the literal text of the statute in question and
‘attempt to discern the fair, objective meaning of that text at the time of its enactment.’” Lang v.
State, 561 S.W.3d 174, 180 (Tex. Crim. App. 2018) (emphasis added) (quoting Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).
Therefore, once the full scope of “the text of the statute” has been ascertained as
described above, the courts look for the date of the latest act of the Texas Legislature to assess
the meaning of the “the text of the statute” at that time: “[A]ppellate courts are constrained to
construe a statute that has been amended as if it had originally been enacted in its amended form,
mindful that the Legislature, by amending the statute, may have altered or clarified the meaning
of earlier provisions.” Powell, 516 S.W.3d at 493 (quoting Mahaffey v. State, 316 S.W.3d 633,
642 (Tex. Crim. App. 2010)).19
19
But see Ex parte Schroeter, 958 S.W.2d 811, 813 (Tex. Crim. App. 1997) (per curiam) (orig. proceeding) (“one
session of the legislature does not have the power to declare the intent of a past session, and a legislative
construction of an act of another legislature is uniformly held to be entitled to little weight”). This justice perceives
at least four reasons to see minimal tension between Ex parte Schroeter and Powell and to resolve whatever tension
there may be in favor of Powell being the dominant rule. First, Ex parte Powell is the more recent pronouncement
of the Court of Criminal Appeals. Second, Ex parte Schroeter had before it an amendment that created ex post facto
27
With “the text of the statute” and the timeframe in mind, the courts turn to the tools
available to us to give the Legislature’s words their plain meaning:
To determine plain meaning, we read the statute in context and
give effect to each word, phrase, clause, and sentence if reasonably
possible, and construe them according to any applicable technical
definitions and otherwise according to the rules of grammar and
common usage.
Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020).
Similarly, “[t]ime-honored canons of interpretation, both semantic and contextual, can
aid interpretation, provided the canons esteem textual interpretation.” Watkins, 619 S.W.3d at
272 (quoting BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 84 (Tex. 2017)).
Put more strongly, canons are secondary to context, definition, and grammar. Id. (“most
importantly, we read words and phrases in context and construe them according to rules of
grammar and common usage” (emphasis added)).
The context of a statute can include publicized events that provided an impetus for
Legislative action, as well as the state of the law prior to Legislative action and even the overall
direction of Legislative action. Id. at 274–78.20
concerns when construed with related provisions. For this reason, Ex parte Schroeter ultimately went on to hold
that applying the new statute in a way that would render it unconstitutional would be an absurd result. The “absurd
result” analysis is a separate step in the process. Third, subsequent cases have cited Ex parte Schroeter not in the
context of outright amendments of prior statutes but when a party attempted to rely on comments in the legislative
history. See, e.g., Chase v. State, 448 S.W.3d 6, 27 (Tex. Crim. App. 2014) (“What [a representative] thought about
a statute that was not being amended is not controlling, nor, in the present context, even particularly persuasive.”).
Viewing Ex parte Schroeter in that fashion, it appears to fit within Powell.
20
In Watkins, the Court of Criminal Appeals found that “the meaning of ‘material’ [in Article 39.14(a)] is plain,
unambiguous, and synonymous with ‘relevant’ when considered in context.” Watkins, 619 S.W.3d at 278
(capitalization and emphasis from heading removed) (emphasis added). Immediately before that holding, Watkins
provided this context:
28
The context of a statute may also include the “practical realities” of the subject matter
addressed by the statute.21
In addition, the context includes judicial decisions: “[W]hen examining amendments to
existing legislation, it is presumed that the legislature was aware of caselaw affecting or relating
to the statute.” Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992), superseded by
statute, Acts 1993, 73d Leg., ch. 900, § 5.05, eff. Sept. 1, 1994, as recognized in Lopez v. State,
253 S.W.3d 680, 686 & n.28 (Tex. Crim. App. 2008);22 Scott v. State, 55 S.W.3d 593, 596 (Tex.
Crim. App. 2001) (“We presume the Legislature was aware of this caselaw in drafting the
provision now before us.”). Indeed, where terms have been construed by a high court and the
Attempts were made over different legislative sessions to amend [Article 39.14] to expand the
scope of discovery, but, aside from small changes, those attempts were unsuccessful. The
wrongful conviction of Michael Morton provided a significant spark the Legislature needed to
completely change criminal discovery in Texas. As discussions of the proposed amendments
revealed, Michael Morton had spent twenty-five years in prison for a crime he did not commit
because the prosecutor trying his case had withheld material, exculpatory evidence.
Id. at 274.
Generally speaking, the current version of Article 39.14 [meaning the version created by the
Michael Morton Act] removes procedural hurdles to obtaining discovery, broadens the categories
of discoverable evidence, and expands the State’s obligation to disclose. . . . It is against this
backdrop that we consider the use of the word “material” as it appears in Article 39.14(a).
Id. at 278.
Ex parte Kibler, 2022 WL 4360668, at *5 (“Reading the text in context, the legislature’s use of “before” and
21
“after” reflects an understanding of the practical realities of plea practice.”)
22
Ironically, Grunsfeld proved to be a demonstration of Legislative awareness. Grunsfeld held that unadjudicated
extraneous offenses were not admissible at sentencing. Demonstrating its awareness of caselaw, the Texas
Legislature responded to Grunsfeld by amending Article 37.07 of the Code of Criminal Procedure to permit the
consideration of extraneous offenses at sentencing. See Act of Sept. 1, 1993, 73d Leg., R.S., ch. 900, § 5.05, 1993
Tex. Gen. Laws 3586, 3759 (eff. Sept. 1, 1993) (current version at TEX. CODE CRIM. PROC. ANN. art. 37.07 (Supp.)).
29
Legislature subsequently uses those terms, the presumption is that the Legislature adopted the
high court’s interpretation. Watkins, 619 S.W.3d at 281.23
III. Judicial Obedience
When the Court of Criminal Appeals has interpreted a particular word or phrase in a
statute, lower courts are bound by that interpretation, even when that interpretation was not so
focused as to constitute an “authoritative” interpretation, even when the statute has been
amended in other respects, and even when the plain text of the statute (viewed in the new context
of the amendments) would appear to be at odds with the decision of the Court of Criminal
Appeals. Id. at 280–82.24
23
The Watkins court held,
When the Legislature revises a particular statute that has been judicially construed, without
changing the construed language, it is presumed that the Legislature intended that the same
construction should continue to be applied to that statute. The clearest rationale for this
presumption is that when a term has been authoritatively interpreted by a high court, the members
of the bar practicing in that field reasonably enough assume that, in statutes pertaining to that field,
the term bears the same meaning. But when there has been no settled interpretation of the
statutory phrase about which the legislature could have been made aware, the presumption does
not apply.
Watkins, 619 S.W.3d at 281 (citations omitted).
24
“[T]he court of appeals noted its obligation to apply this Court’s precedent interpreting the previous version of the
statute rather than rely on the plain text of the statute.” Watkins, 619 S.W.3d at 280. The court of appeals in that
instance was our sister court in Waco, the Tenth Court of Appeals. Watkins v. State, 554 S.W.3d 819, 821 (Tex.
App.—Waco 2018), rev’d and remanded by 619 S.W.3d 265 (Tex. Crim. App. 2021). Since the Court of Criminal
Appeals “noted” the obligation of intermediate courts as expressed by the Waco Court of Appeals, we turn to our
sister court’s articulation of the obligation:
The phrase at issue, “that constitute or contain evidence material to any matter
involved in the action,” was present in Article 39.14 before it was amended by
the Michael Morton Act. See Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2,
2013 Tex. Gen. Laws 106, 106 (eff. Jan. 1, 2014) (codified at TEX. CODE CRIM.
PROC. art. 39.14). The phrase was not modified or defined by the Legislature
when it passed the amendments to Article 39.14. What is “material” had been
subject to substantial judicial interpretation prior to the debate and passage of
the Michael Morton Act. Thus, applying well-established precedent from the
30
This, however, is an intra-judicial branch matter of due order and hierarchy as between
the Court of Criminal Appeals and inferior courts. In Watkins, the court of appeals held that
precedent required it to follow the Court of Criminal Appeals “regardless of what the Legislature
may have thought or intended to accomplish.”25 When the case proceeded to discretionary
review, the State urged that the Court of Criminal Appeals was bound to interpret the
Legislature’s amended statute according to the obligation of obedience incumbent on the court of
appeals.26 The Court of Criminal Appeals rejected that argument.27
Once the case reached the highest court, the question was no longer intra-judicial
precedential obedience, but whether the highest court’s prior decisions fell within the “Prior
Construction Canon” of interpretation as a matter of inter-branch relations between the
Legislature and the Judiciary.28 That canon of interpretation requires that a judicial interpretation
be “authoritative” before it can be presumed that a subsequent act of the Legislature adopted the
Court of Criminal Appeals, by which this Court is bound, we are constrained to
hold that the definition or standard we must use to determine whether the
objectionable evidence was material is the same after the passage of the Michael
Morton Act as it was before passage, regardless of what the Legislature may
have thought or intended to accomplish.
Watkins (Tenth Court of Appeals), 554 S.W.3d at 821 (footnotes omitted) (citations omitted).
25
Id.
26
Watkins (Court of Criminal Appeals), 619 S.W.3d at 280 (“Given that obligation, the State argues that we must
presume the Legislature’s continued use of the phrase ‘material to any matter involved in the action’ indicated an
attempt to incorporate this Court’s precedent interpreting the previous version of the statute.”).
27
Id.
28
Id. at 281 (“When the Legislature revises a particular statute that has been judicially construed, without changing
the construed language, it is presumed that the Legislature intended that the same construction should continue to be
applied to that statute.”).
31
interpretation.29 After setting out a chronology of the prior version of the statute, its own
decisions, and the decisions of the United States Supreme Court, the Court of Criminal Appeals
held that its prior decisions did not constitute an “authoritative” determination and, therefore, did
not fall within the prior construction canon.30
Notably, the Court of Criminal Appeals cited with approval the intermediate court’s duty
to follow the decisions of the Court of Criminal Appeals even when, ultimately, the Court of
Criminal Appeals itself went on to find that its own prior decisions were not so authoritative as
to have been presumptively adopted by the Legislature. Thus, it appears that an inferior court’s
duty of obedience under intra-judicial precedential rules is somewhat broader than the scope of
the “prior construction” canon of inter-branch relations. See id.
IV. Expanded Background of the Present Case
I expand upon the background of the case because it sheds further light on the issues and
also shows the trial court’s efforts to craft a reasonable solution.
Relator Reid McCain, in his capacity as Harrison County District Attorney (hereafter the
State), petitions this Court for mandamus relief. The State asks this Court to direct Respondent,
the Honorable Brad Morin, presiding judge of the 71st Judicial District Court of Harrison
County, to rescind his order requiring the State to provide a copy of a recorded forensic
interview of an alleged child victim to Real Party in Interest Lorenza Cooper, Jr. (Cooper).
29
Id.
30
Id.
32
On October 29, 2020, a Harrison County grand jury returned a true bill of indictment
against Cooper for two counts of aggravated sexual assault of a child. The indictment alleges
that the offenses took place on or about May 1, 2020, when the alleged victim was less than six
years old. At some point after the indictment, the alleged victim was interviewed by
professional(s) affiliated with the “Children’s Advocacy Center,” which this justice takes to
mean the Martin House Children’s Advocacy Center (hereafter CAC), which provides services
to Harrison County, as well as to Gregg and Marion Counties. See TEX. FAM. CODE ANN.
§§ 264.401–.411 (Supp.). On April 5, 2022, Richard Hurlburt was appointed as counsel for
Cooper.31 Thereafter, Cooper moved for, and was granted, approval to retain—at taxpayer
expense—an expert witness to assist in his defense.
On September 22, 2022, Cooper filed a motion asking that the State provide a copy of the
video of the CAC interview for review by an expert witness who might, or might not, ultimately
offer trial testimony, i.e., a consulting expert. Cooper’s motion asserted that it would “cause
unnecessary costs to the county” for his consulting expert to travel to Marshall, Texas, to view
the video. Cooper’s motion also asserted that having the expert show up in person in the
prosecutor’s office would violate the right of defendants to shield the identity of consulting
experts. Cooper’s motion pledged that, if permitted, the copy of the video would be viewed by
defense counsel, the consulting expert, and no others. Cooper’s motion further pledged that no
additional copies of the video would be made and that defense counsel would return the video to
the prosecutor after the consulting expert’s review was completed. In conjunction with his
31
Cooper had prior counsel, but the record before this Court does not indicate whether or when that counsel was
appointed.
33
motion, Cooper provided a proposed order that contained an option for the trial court to grant
relief consistent with the motion.
On September 26, 2022, the trial court signed the proposed order, making it the order of
the trial court. That would become the order on review in this Court (hereinafter the trial court’s
order).32
On October 13 and 14, 2022, the State filed, and then twice amended, a motion to
reconsider the trial court’s order. The second amended motion to reconsider complained that the
trial court’s order was entered without a hearing. The second amended motion to reconsider
urged that copying of the CAC interview video would violate Article 39.15 of the Texas Code of
Criminal Procedure and Section 264.408 of the Texas Family Code. The second amended
motion to reconsider cited Dickens v. Ct. App. 2nd Sup. Jud. Dist. and Dist. Attorney’s Office,
2011 WL 1235027. Ultimately, the second amended motion to reconsider asserted that Article
39.15(a)(3) of the Texas Code of Criminal Procedure addresses, as the State puts it, “forensic
interviews of children” and that 39.15(c) provides both that the prosecutor’s office is the sole
permissible location for viewing such videos and that the copying of such videos is expressly
prohibited.
On October 20, 2022, the trial court set the matter for hearing on October 26, 2022.
During the hearing of October 26, 2022, the State presented first, urging that the trial
court’s order (i.e., the order of September 26, 2022) had been granted without a hearing,33 and
32
It does not appear that the trial court circled, initialed, or otherwise indicated endorsement of the “GRANTED”
portion of the proposed order, nor does it appear that the trial court struck through or otherwise indicated rejection of
the “DENIED” portion of the proposed order. However, both Cooper and the State operated on the understanding
that the trial court had granted Cooper’s motion. That understanding was validated by the trial court at the
October 26, 2022, hearing.
34
that Article 39.15 of the Texas Code of Criminal Procedure and Section 264.408 of the Texas
Family Code prohibit the copying of child interviews in sexual assault cases. The State pledged
to have such videos available for review “whenever the defense in any case wants to come see
it.” Cooper’s counsel responded by pointing out that his practice before the trial court gave the
trial court reason to trust his representation that both counsel and consulting expert would review
a copy of the video without making additional copies and without sharing it with anyone else:
“The victim is not going to know about it. Nobody is going to know about it but myself and the
expert.” To that end, Cooper’s counsel asserted that he had provided the trial court, in camera, a
copy of the consulting expert’s signature on a proposed order agreeing to such terms.34 As in his
motion, Cooper asserted that criminal defendants have a right to shield the identity of consulting
experts. Cooper once again pointed out the expense to the taxpayers of Harrison County for a
consulting expert to travel to review the video. The State responded by observing that, while the
State holds Mr. Hurlburt in high regard, the State considers that to be of no moment here. In the
State’s view, the only relevant consideration is that making a copy of the interview video for off-
site review is “just a violation of the statute, . . . the [L]egislature was very particular in these
cases involving children . . . there’s a reason they wanted to protect that. The child has already
been victimized enough.”
33
A point that is not raised in this original proceeding.
34
This proposed order does not appear in the mandamus record provided by the State. Cooper, however, attached to
his response what he represents to be the in camera proposed order, with the consulting expert’s signature redacted.
As this proposed order does not appear to have come from the either the trial court or the district clerk, we do not
consider it to be part of the record on mandamus. Thus, while the record shows that the trial court was aware that
the consulting expert was an out-of-town witness for purposes of estimating the expense involved, the record is not
entirely clear on whether the trial court knew the identity of the consulting expert for purposes of assessing the
consulting expert’s propensity to comply with the trial court’s instructions regarding the handling of a copy of the
interview video.
35
Having heard the arguments by the State and Cooper at the October 26, 2022, hearing,
the trial court disavowed any intent to permit the routine copying of interview videos in every
case. But in this case, the trial court stated, “I’m trying to save the county money,” which,
considering the estimated drive time of the consulting expert, the trial court figured would
amount to “several thousands of dollars.”35 The trial court expressed satisfaction that the
consulting expert was willing to sign off on a “protective order” and therefore understood “the
consequences” of dispersing the video. The trial court asked if there was anything of a
“pornographic” nature in the interview video. The State said there was not. In light of these
considerations, the trial court concluded the hearing by stating, “I am going to stand by my ruling
and issue it under a protective order.”
The State filed its petition for writ of mandamus on January 6, 2023. The State’s petition
did not contest the grounds Cooper put forward in the trial court as supporting the trial court’s
exercise of discretion to permit copying, subject to a protective order, of the interview video,
which is to say that the State did not contest any of the following:
• the discoverability of the video;36
• the propriety of Cooper seeking the services of an out-of-town expert;37
35
The trial court’s comments at the hearing were vague statements that the expert was presumptively “from a larger
city” hours away from Marshall. This could mean that the trial court did not recall the precise location or identity of
the expert, or that trial court had never been given that information, or that the trial court, through vagueness, was
protecting the defendant’s asserted consulting expert privilege by refraining from giving away details the State could
use to reverse-engineer a well-informed guess of the expert’s identity.
36
As it had done in the trial court, the State conceded in this Court its duty to provide the video to Cooper (the
discoverability), but contests the way that duty is to be carried out.
Cooper’s argument turns in significant part on the increased travel costs of an out-of-town expert. Cooper’s use of
37
an out-of-town expert was not questioned below. Cooper, the State, and the trial court all took Cooper’s hiring of an
out-of-town expert as either proper under the precedents regarding the retention of expert witnesses or at least water
36
• the right of criminal defendants to withhold the identity of consulting experts;38
• the trial court’s favorable assessment of the propensity of both defense counsel
and the consulting expert to comply with a protective order regarding the handling
of a copy of the interview video; or
• the increased costs to the taxpayers of Harrison County resulting from the
consulting expert traveling to Marshall (as compared to the relatively minimal
costs of providing a copy of the video, subject to a protective order, to Cooper’s
consulting expert).
Rather, the State asserts that the statutes at issue mandate on-site viewing of interview
videos under all circumstances, and, hence, the statutes at issue prohibit copying of interview
videos. In sum, the State asserts that the trial court had zero discretion in the matter.
V. The Mandamus Standard: No Adequate Remedy and Ministerial Act
“To be entitled to mandamus relief, the 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, 122 (Tex. Crim. App. 2013) (orig. proceeding).
Concerning the first prong, “[a]n order permitting a defendant to obtain copies of
discovery materials is not listed among those that the State is entitled to appeal in a criminal case
under Article 44.01 of the Code of Criminal Procedure.” Powell, 516 S.W.3d at 494 n.11 (citing
TEX. CODE CRIM. PROC. ANN. art. 44.01(a)).
under the bridge in this case. So too does this justice. See Ex parte Jimenez, 364 S.W.3d 866, 876–77 (Tex. Crim.
App. 2012) (orig. proceeding).
38
A right which, given the State’s non-opposition, I assume for purposes of this dissent to exist, without undertaking
to examine the matter. Further, denial of mandamus would protect the ability to shield the identity of the consulting
expert.
37
Regarding the second prong, an act is not ministerial unless “the facts and circumstances
dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal principles.” Bowen, 343
S.W.3d at 810 (quoting State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals, 236 S.W.3d at 210).
However, shortly after the petition was filed in this case, the Court of Criminal Appeals
issued a mandamus decision that, it appears, might be merging or importing the civil mandamus
standard of the Texas Supreme Court: “As our sister court has phrased it, ‘a clear failure by the
trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may
result in appellate reversal by extraordinary writ.’” In re City of Lubbock, 666 S.W.3d 546, 554
(Tex. Crim. App. 2023) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding)).
While the quoted words of Walker v. Packer might could be construed in a way to be
consistent with Bowen and State ex. rel Young, it does not appear that the Texas Supreme Court’s
application of Walker v. Packer can be so reconciled. See, e.g., In re Sherwin-Williams Co.,
No. 22-0559, 2023 WL 3261790, at *1 (Tex. May 5, 2023) (per curiam) (orig. proceeding) (“The
trial court has no discretion in determining the law or applying the law to the facts.” (emphasis
added)). The Texas Supreme Court affords trial courts “no discretion” in determining the law or
applying the law to the facts “even when the law is unsettled.” In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).
Thus, if the civil mandamus standard applied, we would be called upon to interpret the
statutes and rules at issue, and—no matter how complex the questions or unsettled the law—we
38
would then have to reverse the trial court if, after the fact, we came to a different outcome. Or
rather, we might have to do so. Mandamus is not automatic in civil cases. Rather, in the civil
context, “adequate remedy” has been recognized as a “proxy” for the “careful balance of
jurisprudential considerations” required by the special role of the writ of mandamus in the
judicial system, a balance which implicates “both public and private interests.” Id. at 136. The
civil “adequacy” inquiry is a flexible test by which the court of appeals weighs the costs and
benefits of deciding the issue immediately via mandamus versus waiting to resolve the issue after
trial. Id.39 Regarding this petition, I see no need to conduct a civil adequacy test, nor would I
choose to expand the use of the civil mandamus standard in the criminal context, if, indeed, that
is what In re City of Lubbock portends.
Notably, though In re City of Lubbock cited Walker v. Packer, it did so in a case of “first
impression,” which, under limited circumstances, is subject to mandamus under existing Court of
Criminal Appeals mandamus authorities. In re City of Lubbock, 666 S.W.3d at 554 n.28 (citing
State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506 (Tex. Crim. App. 2011)). Therefore, it
39
Holding:
An appellate remedy is “adequate” when any benefits to mandamus review are
outweighed by the detriments. When the benefits outweigh the detriments,
appellate courts must consider whether the appellate remedy is adequate.
This determination is not an abstract or formulaic one; it is practical and
prudential. It resists categorization, as our own decisions demonstrate.
Although this Court has tried to give more concrete direction for determining the
availability of mandamus review, rigid rules are necessarily inconsistent with
the flexibility that is the remedy’s principal virtue.
In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
39
appears that the Court of Criminal Appeals’ citation to Walker v. Packer may be limited to the
“first impression” context.
The case now before this Court is not a question of first impression. The question of how
to handle CAC interviews in sexual assault cases was addressed by the Court of Criminal
Appeals in In re District Attorney’s Office of 25th Judicial District and was before the Court of
Criminal Appeals in a subsequent unpublished decision.
It does not appear that the Court of Criminal Appeals has articulated for itself or, more
importantly, conferred on this Court what is called “Schlagenhauf” mandamus authority in the
federal system. This has been described as “use [of] the writ as a one-time device to ‘settle new
and important problems’ that might have otherwise evaded expeditious review.” In re
JPMorgan Chase & Co., 916 F.3d 494, 499 n.4 (5th Cir. 2019) (orig. proceeding) (alteration in
original) (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)). Under such a standard, it
would be possible to avoid harsh findings such as abuse of discretion while at the same time
interpreting the statutes at issue.
At the end of this day, though, the ministerial act standard as articulated by Bowen
applies.
VI. Conclusion
The issues raised by the Petitioner are important. Here, though, the petition is filed in the
face of a 2011 decision of the Court of Criminal Appeals permitting CAC videos to be copied.
In re Dist. Att’y’s Off. of 25th Jud. Dist., 358 S.W.3d at 246. Thus, to grant mandamus here is to
40
say that it was beyond the bounds of reason for the trial court to rely on the Court of Criminal
Appeal’s published decision from 2011. The majority does so. I cannot.
There is much force in the majority’s analysis though. The primary force being this: a
key reason for focusing on “the literal text” of a statute “is that the Legislature is constitutionally
entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.”
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Here, though, we are on mandamus review, where the question is whether “the facts and
circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant
statutory, constitutional, or case law sources), and clearly controlling legal principles.” Bowen,
343 S.W.3d at 810. The trial court was faced with an interlocking set of statutes and a rule of
evidence, some of which have been amended since the 2011 Court of Criminal Appeals decision.
This implicates the rule of interpretation which calls for related statutes to be read together. It
also implicates the rule of interpretation for the related statutes to be considered as of the date of
the most recent amendment (although this is not always so). Complicating matters further, there
have been Court of Criminal Appeals decisions in this field since this time, decisions which
interleave with the statutory amendments. Then there is Watkins, under which inferior courts
have a duty to follow the decisions of the Court of Criminal Appeals.
Ultimately, there is the ministerial act requirement of mandamus.
Under the circumstances shown in this case, I would find that the requirement has not
been met. The trial court strove to strike a reasonable, case-specific balance, taking into
consideration both the need to protect the child’s interests and the need to protect local taxpayers
41
from expenses that could be reasonably avoided under the law. See In re Dist. Att’y’s Off. of
25th Jud. Dist., 358 S.W.3d at 246 (“The court’s order for the State to make the copy, which is a
task both easy and inexpensive, was reasonable.”).
In sum, I dissent because, under the ministerial act standard, I would deny mandamus.
Jeff Rambin
Justice
Date Submitted: June 19, 2023
Date Decided: June 20, 2023
Publish
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