Opinion
WR-91,710-02
11-22-2023
IN RE ALI AWAD MAHMOUD IRSAN, Relator
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 1465609-A IN THE 184th DISTRICT COURT HARRIS COUNTY
Newell, J., filed a dissenting opinion in which Richardson and Walker, JJ., joined.
In this case, the State sought and obtained an order to compel production of the defense counsel's files to respond to Relator's claim of ineffective assistance of counsel in his article 11.071 writ application. The State supported its motion by relying on this Court's opinion in In re Harris as well as Rule 503(d)(3) of the Texas Rules of Evidence and Rule 1.05(c)(4) of the Texas Disciplinary Rules of Professional Conduct. These sources clearly support the State's argument that Relator cannot file an application for habeas corpus relief based on ineffective assistance while simultaneously asserting an attorney-client privilege. But that is not the same thing as saying the trial court has the authority to order disclosure of the defense files to the State so that the State may be better able to respond to a post-conviction writ application.
While the primary focus of the order is on trial counsel's files, there are several components of the order that could arguably be used to compel disclosure of habeas counsel's files as well. As Relator pointed out in his response to the State's motion, the order compels the following:
The Court ORDERS the Applicant to disclose any notes or reports made by mitigation experts, including any interviews with family members or mental health experts.
The Court ORDERS the Applicant to disclose the mitigation expert(s) CV(s), report(s), and notes, including any interviews with family members or mental health experts.These orders appear to be in response to Relator's claims against trial counsel but, unlike other provisions of the order, they are not specifically limited to trial counsel's files.
In re Harris, 491 S.W.3d 332, 335 (Tex. Crim. App. 2016) ("when relator chooses to bring claims alleging that his trial counsel were constitutionally ineffective, he waives his claims to privilege as to those materials that are relevant and responsive to the ineffective assistance claims he raised").
Tex. R. Evid. 503(d)(3) (providing an exception for the lawyer-client privilege's application "[i]f the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer").
Tex. Disciplinary Rules Prof'l Conduct 105(c)(5) ("A lawyer may reveal confidential information . . . To the extent reasonably necessary to enforce a claim or establish a defense on behalf of a lawyer in a controversy between the lawyer and the client.").
On the question of a habeas court's authority to order discovery, we seem to have uncritically assumed the existence of that authority. In Harris, we noted that trial courts have discretion in matters of discovery. But we supported that observation by relying upon a case involving pre-trial discovery. We also observed that in the context of an article 11.071 application, the habeas judge is "the collector of evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief." But we took this language from Ex parte Simpson, a case about whether the Court of Criminal Appeals can consider evidence that was not submitted to the habeas court. Simpson was not a case about discovery. And yet we relied upon both of these cases to justify the conclusion that a trial court has a "measure of discretion in managing the process of fact- finding in a capital writ proceeding." I am skeptical that this conclusion was supported by our precedent.
Harris, 491 S.W.3d at 336 ("Hence, our precedent allots the trial judge a measure of discretion in managing the process of fact-finding in a capital writ proceeding.").
Id. at 335 ("We have acknowledged the 'discretion of the trial court in matters of discovery.'") (citing State v. Dittman (In re Dist. Attorney's Office of the 25th Judicial Dist.), 358 S.W.3d 244, 246 (Tex. Crim. App. 2011)).
Id. (citing Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004)).
Simpson, 136 S.W.3d at 667.
Harris, 491 S.W.3d at 336.
Rather than deny leave to file, I would at least order responses on whether the habeas court has the inherent authority to order the disclosure in this case. Texas is not generally a reciprocal discovery state. I am aware of statutory authorization for disclosure of evidence by the State to the defense, but I am unaware of any statutes that authorize disclosure of defense case files by the defense to the State. At most, there is statutory authorization for disclosure of a witness list, and even that does not obviously apply to post-conviction proceedings. And if the habeas court has no authority to order disclosure in this case, mandamus relief would be appropriate.
Demouchette v. State, 731 S.W.2d 75, 81 (Tex. Crim. App. 1986) (recognizing in the pre-trial context that the State "has no right of discovery into the defendant's case").
See, e.g., Tex. Code Crim. Proc. art. 39.14(a), (h) & (k).
Tex. Code Crim. Proc. art. 39.14(b) (mandating disclosure, upon request, of the name and address of each person a party may use to present expert testimony); Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006) ("article 39.14(b) of the Texas Code of Criminal Procedure was amended in 1999 to provide for limited reciprocal discovery of the opposing side's potential expert witnesses").
State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506 (Tex. Crim. App. 2011) (mandamus relief warranted where trial court acted beyond the scope of lawful authority); State v. Patrick, 86 S.W.3d 592, 595-97 (Tex. Crim. App. 2002) (mandamus proper when trial court acted beyond statutory authorization).
With these thoughts, I dissent.