September 11, 2020

Texas Courts of Appeals

In re State                                           

No. 08-19-00151-CR              8/31/20


  1. Did the trial court exceed the scope of its authority by ordering the State to produce material that the State’s gang expert considered in forming opinions?
  2. Did the trial court exceed the scope of its authority by ordering the State to disclose in writing the substance of its expert’s proposed testimony, the expert’s opinion, and the underlying basis/bases for that opinion?


  1. No. The State did not meet its mandamus burden to show a clear right to relief because much of the information sought (law enforcement officer witness statements and offense reports) would fall under the text of Code of Criminal Procedure Art. 39.14(a), which includes “material to any matter involved in the action” and specifically includes the terms “offense reports” or “witness statements of law enforcement officers.” If the information in those materials is something the officers reviewed to form their opinions, it would fit within the language of Art. 39.14(a).
  2. No. While the disclosure requirements of Art. 39.14 are limited to pre-existing documents and items already in the State’s possession (meaning that the trial court cannot order the State to create a document that is not already in its possession, custody, or control, even after the passage of the Michael Morton Act), the Court did not construe the request as requiring the State or its experts to create a new document. The State as mandamus applicant has the burden of showing that the trial court clearly exceeded the scope of its permissible authority. Here, the Court did not believe the State met the burden of showing that the defendant’s request clearly required the State to create new material. Read Opinion.

Concurring (Rodriguez, J.):

“I join the majority opinion in part and agree with the judgment resolving this case. For me, this case is all about subsection (h), and I would resolve this case solely on the subsection (h) grounds articulated by the trial court in its order, especially because interpretation of subsection (h) and the Michael Morton Act is an open question that needs a definitive resolution. I find that subsection (h) can and does entitle [the defendant] to discover the expert opinion information he sought, or, at the very least, that the State has not met the burden to obtain mandamus relief from the trial judge’s order concluding that it does.” Read Opinion.


This is a messy opinion where several moving parts don’t mesh. At its core, the majority nullifies the portion of Article 39.14 that deals specifically with experts by addressing the issues under portions of the statute that apply to other things. It is possible that the Court of Criminal Appeals might review the case because discovery disputes are difficult to present on appeal. Reasonable minds might differ whether it is more efficient to comply with reasonable discovery requests even if they don’t fall within a strict reading of Article 39.14. But there is a big difference between a prosecutor exercising discretion and the trial court ordering the prosecutor to spend scarce resources sooner and to a greater extent than required by law.

Ex parte Ellis

No. 10-17-00047-CR              8/31/20


Is Penal Code §21.16(b) (Unlawful Disclosure or Promotion of Intimate Visual Material) unconstitutional on its face?


No. Penal Code §21.16(b) satisfies the strict scrutiny test because the privacy interests are compelling, and the statute is narrowly drawn to protect those interests. Penal Code §21.16(b) addresses privacy concerns by requiring that the visual material was obtained or created under circumstances in which the depicted person had a reasonable expectation of privacy. In addition, the sweep of the statute is limited by the intent of the person disclosing the images and the requisite harm that the potential victim must show. Read Opinion.

Dissenting (Gray, C.J.):

“This statute fails all the tests. I give it a constitutional grade of ‘F’ and would therefore declare it unconstitutional. Because the Court allows the defendant to be prosecuted under it, I respectfully dissent.” Read Opinion.


The validity of §21.16 is at issue in Ex parte Jones, No. 18-0552. The decision in this case increases the likelihood that the Court of Criminal Appeals will reach the merits of the issue.

Texas Attorney General Request for Opinion

RQ-0376-KP               8/19/20


  1. Does the criminal jurisdiction of a Criminal District Attorney for the State of Texas extend to protecting the integrity of the November 3, 2020 general election by prosecuting those federal officials who might reside in another jurisdiction but would knowingly violate criminal provisions of the Texas Elections Code resulting in the disenfranchisement of Texas voters, many of whom are age 65 or older and disproportionately rely on mail ballots as a means of effectuating their constitutionally protected right to vote?
  2. If a federal official is indicted by a Bexar County grand jury and refuses to make an appearance after having been served with the indictment, may that federal official be convicted by a duly empaneled petit jury in absentia? Read Request.


A message from Rob Kepple

Dear TDCAA Members: I am writing to you today because our friends in Louisiana need our help. Hurricane Laura devastated a wide swath of Western Louisiana and left many prosecutor office employees homeless. I am asking you today to spread the word of their need and to encourage your folks to help out with even a modest donation.

I can tell you for a fact that it makes a huge difference. After Hurricane Harvey devastated the Texas coast, we raised funds to help our homeless prosecutor office employees. It was YOUR generosity that brought tears to the eyes of dozens of people when we handed out recovery checks from the fund. Prosecutors from states all over the country – including Louisiana — came out in force to help us in our hour of need.

Below I have reprinted an email from the Louisiana District Attorneys Association (LDAA). Please do what you can to help!

Honored to serve you,
Rob Kepple

An email from Loren Lampert, Executive Director of LDAA:

Dear Members,

2020 has challenged us in ways we could never have predicted, but those challenges have also taught us to appreciate the tenacity, strength of will and depth of spirit of the citizens of Louisiana. Once again, we face yet another challenge and call on that same spirit of perseverance and good will to band together and be present for our fellow brothers and sisters who have been affected in the wake of Hurricane Laura. 

Hurricane Laura was a storm of historic proportions. Striking first in Cameron Parish at sustained winds of 150 miles per hour and with storm surges over 10 feet high she proceeded to barrel through nearly two thirds of the state leaving devastation in her wake. While the death toll may be low, the effects on those who now must return to rebuild are immense. Many DA employees and their families have been significantly negatively impacted by the storm. Some have lost everything.

Request for Monetary Donations: The Louisiana District Attorneys Association is partnering with the Louisiana District Attorneys Training Foundation to raise funds to support those DA employees’ families affected by Hurricane Laura. We encourage all who can to donate using the link above or by CLICKING HERE. Any amount is greatly appreciated.  You will have an opportunity within the donation form to indicate for which parish you wish the funds be dedicated.

Assistance with Recovery: This email pertains specifically to monetary support. We will be sending out a secondary email with more information on how you can contribute physical goods and services to those who have been affected.

The citizens of Louisiana are a community of strength and perseverance. We are unstoppable and can overcome any adversity when we work together. We pray for everyone’s safety. 

The LDAA is here for you. If you have any questions, please feel free to contact us at LDAA Headquarters at 225-343-0171 or by emailing us at [email protected].

Thank you and stay safe in service,

Loren M. Lampert
Executive Director, Louisiana District Attorneys Association