Ed McClees

Ed McClees is the managing partner of McClees Law Firm, PLLC. He is the former Chief of the Organized Crime Section of the Harris County District Attorney’s Office, where he routinely provided advice to federal and state law enforcement agencies, including the FBI, IRS, Joint Counterterrorism Task Force, United States Secret Service, Houston Police Department, Harris County Sheriff’s Office, and many others. He currently represents individuals charged with various DWI and Intoxication-related crimes, Murder, Sexual Assault, White Collar Crimes, and others.

A Primer on the Texas EOCA Statute

Many in law enforcement have started more aggressively using the Engaging in Organized Criminal Activity (“EOCA”) statute to prosecute cases where groups of individuals are alleged to have worked together in some way to commit criminal activity. Under the EOCA statute, people can be prosecuted as being part of a “combination” or as part of a “criminal street gang.” The purpose of this article is to outline and survey the law as it pertains to cases filed where the accused is charged as a member of a “combination.”

The EOCA statute, as codified in Chapter 71 of the Texas Penal Code, was created as Texas’ answer to the Federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute. The legislative history suggests that the bill creating the EOCA statute was intended to make it less difficult for law enforcement officials and criminal justice agencies to obtain convictions for participation in organized crime.1 The EOCA statute allows for joinder of offenses and offenders in a single criminal case. It allows for prosecution in any county in which any activity occurred in furtherance of EOCA activities. Alleging that a person is part of a “combination” works similarly to a criminal conspiracy, except that it involves more people and they need not be as directly involved with one another.

Tex. Pen. Code §71.02(a) says that “[a] person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit” one of the predicate offenses. The laundry list of offenses is too numerous to list here but it can be found in the statute and includes offenses as diverse as murder, aggravated robbery, various sex offenses, various fraud offenses, certain gambling offenses, money laundering, and many others.2 Texas Penal Code § 71.01(a) defines the term “combination” as “three or more persons who collaborate in carrying on criminal activities, although: (1) participants may not know each other’s identity; (2) membership in the combination may change from time to time, and (3) participants may stand in a wholesaler-retailer or other arm’s length relationship in illicit distribution operations.”

It is important to remember that not all offenses are predicate offenses for an EOCA charge. Therefore, a practitioner should start by referring to the statute and ask the most basic question – does the indictment allege that the defendant committed one of the predicate offenses listed in the statute? If the predicate crime is not one that is listed in the EOCA statute, then it is not a proper EOCA charge.

BASIC ELEMENTS

There are two overarching elements that are necessary to establish guilt in an EOCA charge: (1) that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination3; and (2) that the defendant committed or conspired to commit one of the enumerated predicate offenses found in Tex.Pen.Code § 71.02(a), which also needs to be listed in the indictment.4 Simply put, the defendant must both agree to participate in the “combination” and “must himself perform an overt act in pursuance of that agreement.”5 The EOCA statute does not treat each predicate offense as an element for purposes of jury unanimity, regardless of whether the state alleges alternate predicate offenses with different degrees.6

REQUIRED MENTAL STATE

There are two parts to the mental state required for an EOCA charge. First, the defendant must have the mental state that is required for the predicate crime.7 For example, if the defendant is charged with EOCA with theft as the predicate offense, the state must prove that the defendant intended to deprive the complainant of the property. Second, the state must prove that the defendant intended to establish, participate in, or participate in the profits of a combination.8 In other words, the defendant must possess more than just the intent to commit the enumerated predicate offense; he must also intend to commit the predicate offense as part of the combination. Also, the proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses.9 Thus, in our theft example, not only does the prosecutor have to prove that the defendant intended to steal, but also that he intended to steal as part of this crime ring, which is known as the “combination.” A jury may infer from any facts which tend to prove the combination’s existence, including the acts, words, conduct of the defendant, method of committing the crime, etc.10

To prove that the defendant intended to participate in the combination, the state must prove that the defendant intended to establish, maintain, or participate in a group of three or more in which the members work together in a continuing course of criminal activities.11 The defendant falls into the category of being part of the combination if the defendant, or one of his or her accomplices, engaged in ongoing criminal activities, and the defendant agrees to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities.12

In O’Brien v. State, the Texas Court of Criminal Appeals explained that for an adequate showing of “intent to establish, maintain, or participate in a combination or the profits of a combination,” the “State must show that the predicate offense was committed as part of a collaboration of three or more people working together in a continuing course of criminal activities.13

CONSPIRACY TO COMMIT EOCA VS. CONSPIRACY UNDER TPC § 15.02

“Conspiracy” as used in the EOCA statute differs from criminal conspiracy under Tex. Pen. Code § 15.02. A person “conspires to commit” for purposes of the EOCA statute when that “person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement.”14 Criminal conspiracy, on the other hand, requires the prosecutor to prove that the defendant intended to commit a felony, agreed with one or more people to commit that felony, and that one of the people who formed this agreement committed an overt act in furtherance of that agreement. Criminal conspiracy does not require the defendant to have committed the overt act himself.15 EOCA “conspiracy” requires that the actor himself must commit an overt act in furtherance of the combination.16

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy.17 For criminal conspiracy, if two people are charged and one is acquitted, the other must also be acquitted.18

EOCA conspiracy operates differently. To be guilty of conspiring to commit an offense as a member of a combination, a defendant (1) must agree to participate in the combination, and (2) must himself perform some overt act in furtherance of that agreement.19 That “overt act” need not in itself be criminal.20 A key difference between EOCA conspiracy and traditional criminal conspiracy is that when multiple people are charged in the combination, the acquittal of one of those people does not mean that a conviction on other defendants cannot stand.21

COMMISSION V. CONSPIRACY

EOCA by “commission requires a showing of a collaboration in carrying on criminal activities in addition to the commission of one or more predicate offenses. [EOCA] by commission simply punishes a conspiracy involving three or more people that results in the completion of at least one of the conspired crimes.”22 EOCA by conspiracy does not require the state to show a completed offense.23 “When the state charges a defendant with [EOCA] by commission, it must show at least one completed offense. But in both types of offenses, the state still must prove the existence of a criminal combination.”24

CONTINUOUS ACTIVITY REQUIREMENT

One of the most often misunderstood requirements of the EOCA statute is the requirement that the state prove the intention of the members of the combination to carry out multiple criminal acts. Police officers and prosecutors often believe that a defendant may be charged with EOCA if that defendant were part of a group of three or more people who commit one of the crimes enumerated in the EOCA laundry list. While multiple people working together to commit a single crime may be guilty of that crime under a “law of parties” theory, those people cannot be found guilty of EOCA.

The Texas Court of Criminal Appeals has held that the phrase “collaborate in carrying on criminal activities” does not mean an agreement to jointly commit a single crime.25 The state must prove more than the defendant and some combination of his accomplices intended to act together toward a criminal objective of committing one of the enumerated crimes.26 The prosecutor must prove beyond a reasonable doubt that a defendant’s accomplices had engaged in ongoing multiple criminal activities, and a defendant agreed to join the existing organized crime unit, knowing that it has committed or will commit multiple criminal activities, and that defendant committed an overt act, even if only one, in furtherance of that crime.27

DEFENSES EXCLUDED

The EOCA statute expressly excludes certain defenses. For example, it is not a defense that “one or more members of the combination are not criminally responsible for the object offense.”28 Remember, in EOCA cases your client is being prosecuted for belonging to this group that does bad things. He does not have to do the actual bad thing, so long as he does some “overt act” to help others do the bad thing. Also, as stated earlier, the fact that one member of the combination was acquitted does not mean that the other members of the combination are immune from prosecution.29 Finally, the fact that members of the combination change, and that the total number of people in the combination change is not a defense so long as the defendant and at least two other individuals remain in the combination.

INDICTMENT AND JURY CHARGE ISSUES

Unfortunately, the law allows prosecutors wide latitude in creating complicated indictments with nightmare jury charges in EOCA cases. The Texas Court of Criminal Appeals has said that “[t]he jury must be unanimous that a defendant committed at least one of the enumerated offenses as a part of a collaboration to carry on criminal activities.”30 The court has made it clear, however, that the “jury does not have to agree on which specific offense was committed in an engaging case so long as everyone agrees that at least one of the listed offenses was committed as part of a collaboration in carrying out criminal activities.”31

For EOCA cases, the commission of each predicate crime constitutes a different manner and means of committing the single offense of EOCA.32 “An indictment may allege different methods of committing the same offense.”33 Therefore, a single EOCA indictment may list completely different predicate crimes as a “manner and means” of committing EOCA. For example, an indictment may charge an individual with committing EOCA by being part of a combination and then allege criminal activities as diverse as theft, money laundering, fraudulent use of identifying information, and murder. Although a single count can’t charge people with multiple crimes,34 courts have held that EOCA is one charge and can be pleaded with different predicate crimes as different “manner and means,” and each “manner and means” may be submitted to the jury.35 Further, verdict forms must be general so a properly written jury charge will not require the jury to make any determination as to which specific individuals in the combination committed which predicate crimes.36

PUNISHMENT

Generally, the punishment range for EOCA is one degree higher than the most serious offense that was committed.37 If the predicate offense is first degree offense, then the minimum sentence is 15 years in the Texas Department of Corrections.38 There are provisions that make the range more aggressive when certain sex offenses are the predicate charge.39 Conspiring to commit an offense under the EOCA statute is the same degree as the most serious offense “that the person conspired to commit.” 40

At the punishment state of a trial, the defendant may raise the issue as to whether he completely withdrew from the combination before the commission of the offense, and “made substantial effort to prevent the commission of the offense.”41 If the defendant proves this by a preponderance of the evidence then the punishment range becomes the same as the most serious offense listed in the indictment, or a degree lower if the defendant is convicted of conspiring to commit the offense.42

Importantly, a defendant convicted of EOCA is “not eligible for release on parole until [the defendant’s] actual calendar time served, without consideration for good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is [the defendant] eligible for release on parole in less than two calendar years.”43

CONCLUSION

The EOCA statute can be tricky and confusing to the untrained eye. Many police officers and prosecutors wrongly believe that if a person commits a crime with at least two other people, then that person is guilty of EOCA. As shown above, this is not the case. When attacking the State’s case pay close attention to the pleadings. Consider filing motions to quash when the state’s indictment does not identify an “overt act” and have the statute and supporting case law ready to cite when it comes time to move for a directed verdict when the state fails to present evidence of the defendant’s intent to be part of a collaboration of three or more people working together in a continuing course of criminal activities. While the complexities of the EOCA statute aid the state in some respects, those same complexities create many opportunities for the state to make mistakes. This, in turn, creates opportunities to “recover a fumble” when the defense lawyer pays close attention to the statute’s details.

Cold Texting: The New Wave of Barratry

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents. 

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).1

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i). 

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of the fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact…seek professional employment concerning a matter arising out of a particular occurrence or event…from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…” 

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note: the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing, and if approved, will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, and material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text, or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.

We are aware of only a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102. 

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf, you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and pay the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was sent for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number. The first contact, whether directly or through a legitimate lawyer referral service, needs to come from the potential client.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text message mimics the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability. 

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers. 

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct mailouts don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even landlines. Many subscribers must pay for call minutes or data used for texting. Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers. The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past, municipalities provided phone books which gave specific addresses or names for landline numbers. Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address. Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy. Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Tex. Disc. R. of Prof. Cond. 7.03, comm. 1. An unsolicited text message can reach a prospective client literally the minute after they get out of jail when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases. See Tex. Penal Code § 38.12(d)(2)(A). Shouldn’t people accused of crimes, with all the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

Expediting Production of DWI Audio/Video Recordings Even Where Charges Have Not Been Filed

We have all been there. Your new DWI client gets arrested in a county where the prosecutor steadfastly declines to provide any discovery, including audio/video electronic recordings, until formal charges are filed. The prosecutor cites the recent decision in In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication)(standing for the limited proposition that district courts lack jurisdiction to compel discovery production until the case has been indicted). Of course, that filing process can take months, but you would like to get ready now because you are that kind of lawyer. You have also requested an ALR and would like to get ready for that, too. Regrettably, you know that ALR hearing will likely happen before formal charges are filed by the criminal prosecutor, and as such, you will not have the benefit of preparing your cross-examination by reviewing the arresting officer’s audio/video electronic recording. Feeling frustrated and defeated that the criminal prosecutor is not going to do the right thing and allow you access to the electronic recording, you feel boxed in and accept the fact. Accordingly, you accept that you are not going to have the benefit of the video to get ready to defend either the ALR or DWI until formal charges are filed and temporarily close your file.

Do you know that it doesn’t have to be that way? For good lawyers who think out of the box, it doesn’t have to be that way at all! In fact, for the good lawyers, the video is there for the asking, and it doesn’t matter whether it is before or after formal criminal charges have been filed. In fact, it doesn’t matter even if your client was not arrested. All that does matter is that the client was stopped and an electronic recording was made. What follows is what you need to know.

II.  DISCOVERY METHODS

A. MICHAEL MORTON ACT (“MMA”)

The Michael Morton Act (MMA), Art. 39.14(a), Texas Code of Criminal Procedure, requires the State to produce discovery “as soon as practicable after receiving a timely request from the defendant.” Because Article 39.14(a) provides the directory language “the State shall produce,” its production duty is not discretionary nor can it be limited by any prosecutor “policy.” Applying the Code Construction Act, Tex.Gov’t.Code, we know that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex.Gov’t.Code Sec. 311.011(a). We also know that when words or phrases have a technical meaning, whether by the legislature or otherwise, those words shall be “construed accordingly.” Tex.Gov’t.Code. Sec. 311.011(b). Finally, we know that “unless a different construction is expressly provided by statute . . . ‘shall’ imposes a duty.” Tex.Gov’t.Code 311.016(2).

Recently, one appellate court took a unique approach to the MMA when it issued the controversial opinion In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication). Simply put, this is a horrible decision based on a limited reading of the MMA that runs completely contrary to the spirit of that act and shows a failure to read and properly interpret the Code Construction Act.

Munk was a murder case where the trial judge granted the defendant’s MMA motion to compel discovery. The State filed a writ of mandamus, where it asserted that the trial court did not have jurisdiction to issue an order compelling the pre-indictment production of discovery.1 The Eastland Court of Appeals agreed with the state, and said “[i]n the absence of express language in Article 39.14(a) authorizing the trial court to issue an order compelling the State to produce discovery prior to indictment, we conclude that the statute does not alter the well-settled requirement that an indictment is essential to the district court’s jurisdiction in a criminal case.” The court went on to note that the judge, therefore, did not have jurisdiction to compel the state to comply with 39.14. Interestingly and curiously, the opinion never even addresses the MMA language stating “as soon as practicable after receiving a timely request from the defendant that state shall produce . . .” Tex. Code Crim. P. Art. 39.14(a). This failure to discuss MMA’s “as soon as practicable” makes the opinion appear as if it were result oriented.2

So, does Munk control? We think not, and here is why. There are several distinguishing factors in Munk. First, the Munk Eastland Court of Appeals opinion is not published, and as such, has no precedent value and is not binding. It also has no weight or force outside that district. Second, the Munk Court did not rule that the discovery could not be compelled. Rather, it simply said that the district court lacked pre-indictment jurisdiction to compel the State to produce the discovery. Its theory was that the district court was merely acting in its capacity as a magistrate until there was an indictment, and that the magistrate could not compel the discovery. Clearly such a holding violates both the spirit of the MMA and legislative intent.3 If the State cannot be compelled to produce discovery, then the MMA has no teeth, making its promise to promote justice hollow. Here, it is beyond peradventure that this was not the legislative intent that went into drafting one of the most widely praised criminal discovery bills in history. Third, nothing in the opinion addresses misdemeanor cases involving county courts or misdemeanor cases where the case will proceed to trial without indictment.

B. APPLICATION OF THE CODE CONSTRUCTION ACT TO THE MMA

When the MMA is read under the microscope of the Code Construction Act (“CCA”), codified under Section 311 of the Texas Government Code, focusing on “as soon as practicable, after receiving a timely request” and applying the CCA’s directives, it is not debatable that the State has a pre-indictment duty to produce discovery to the defendant. Looking back, the facts that gave rise to the MMA’s passage, are instructive that MMA discovery is amazingly broad and includes DWI audio/video electronic recordings.

C. TEXAS CODE OF CRIMINAL PROCEDURE ART 2.139

What could be better for discovery than the MMA? For DWI defendants, the answer is, like icing on the MMA cake, Article 2.139 Tex.Crim.Pro., which became effective September 1, 2015. It provides that:

a person stopped or arrested on suspicion of an offense under Section 49.04 (Driving While Intoxicated), 49.045 (Driving While Intoxicated with a Child Passenger), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, is entitled to [an electronic video recording if the person was stopped and a recoding was made].

Interestingly, Article 2.139’s 2015 legislative history is instructive that audio/video electronic recordings must be produced even before the filing of formal charges, and that the duty to produce is not dependent on the filing of criminal charges.4 In crafting the production duty, the legislature recognized a previous production problem, and noted that “persons arrested for certain intoxication offenses under the Penal Code [were] not en­titled to a copy of all video recordings of the arrest.” House Committee Report, HB 3791(HB), Engrossed. Recognizing the problem and wanting to remedy it, the legislature asserted “that a person [stopped or] arrested for certain intoxication offenses should be entitled to a copy of all video recordings made during the arrest.” House Committee Report, HB 3791 [emphasis added].

Tex.Code Crim. P. Art. 2.139 [emphasis added] now provides:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07,or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that con­tains footage of:
(1) the stop;
(2) the arrest;
(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

To understand the mandatory production nature and broad­ness of 2.139, the reader must focus on the phrase “is entitled,” as defined by Tex.Gov’t.Code Sec. 311.016(4). It leaves no doubt in the language: “Is entitled to” creates or recognizes a right. Thus, the plain meaning of Art. 2.139 is that a person who is arrested or stopped for Driving While Intoxicated, Driving While Intoxicated Child Passenger, Intoxication Assault, or Intoxication Manslaughter has a right to any video recording of the stop, the arrest, conduct of the person during any interaction with the officer (including but not limited to the administration of the standardized field sobriety tests) and any procedure in which a specimen of that person’s blood or breath is taken. Clearly, since the statute provides the alternative “or stopped,” it was designed to mandate production upon request even for individuals who were not arrested but only stopped.5

To yet further illustrate the mandatory nature of this production requirement, we need only to look at the Texas Attorney General’s 2016 Public Information Handbook. There, it is clearly stated that its transparency purpose is to “promote an open and inclusive system of government in Texas that benefits all of our citizens.” The Handbook provides detailed analysis regarding information that the government must disclose, may disclose, and must not disclose. Importantly, Art. 2.139 is specifically referenced in the handbook, and its language reprinted there in its entirety. This section of the Handbook has little commentary on Art. 2.139 other than noting the statute’s effective date and noting that there is no current case law or formal opinions regarding the statute. Of even greater import there is the fact that there is no commentary suggesting that under any circumstances, these video records not be produced. This is to be contrasted with other sections in the Handbook where the Attorney General has offered clear commentary on items that the government does not have to produce. Such commentary was not offered on Art. 2.139 because the answer is clear—a copy of any video relating to a stop or arrest for an intoxication offense must be given to the person who was the subject of that stop or arrest. Again, there is no condition precedent that formal charges are filed in order for the State’s mandatory production duty to arise.

Where a police agency refuses to provide a copy of the rele­vant video recordings upon request, or where it attempts to create undue delay by requesting an attorney general decision on the issue, the Texas Public Information Act (“TPIA”) provides a remedy to compel immediate production. Specifically, TPIA provides for a suit under a Writ of Mandamus to compel the wrongfully resistant governmental agency to release the requested information. Tex. Gov’t. Code Sec. 552.321; Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex.App.—Austin 2002, no pet.)(“A requestor may bring a mandamus action regardless of whether an attorney general’s opinion has been requested or despite the issuance of an adverse attorney general’s opinion that favors the withholding of the information.”) This mandamus action is statutorily created, and is different from the “traditional” mandamus that applies to decisions made by trial courts. A mandamus under the TPIA is filed in a district court of the county in which the main offices of the governmental body (in this situation, the police agency) are located. Further, in certain situations in which a suit for a writ of mandamus is needed to compel the agency to comply with the law, the TPIA allows for recovery of attorney’s fees by the party who brought the action. See Tex. Gov’t. Code sec. 552.323.

III.  PUTTING IT ALL TOGETHER: DEMAND LETTER TO THE ARRESTING AGENCY AND MOTION TO COMPEL PRODUCTION AND REQUEST FOR SANCTIONS

A. THE DEMAND

So now we know the law, and here is how we suggest defense practitioners use it. First, a demand letter should be sent to the head of the law enforcement agency responsible for the stop or arrest of your client, and it should be done in a way that shows timely receipt of it. A fax receipt, hand delivery, or registered mail with a return receipt are appropriate and can be used as future evidence of timely receipt. A suggested demand letter follows:

[CHIEF OF POLICE ] [POLICE DEPARTMENT ADDRESS]

RE:  Video Recording of Arrest for Intoxication Offense: [CLIENT]

Dear Chief [   ]:
        I have been retained to represent [CLIENT] as a result of an arrest for an Intoxication Offense, as that term is used in Texas Code of Criminal Procedure 2.139. As you are likely aware, the Eighty-fourth Legislature passed House Bill 3791, which became effective on September 1, 2015, amends Article 2.139 of the Code of Criminal Procedure and provides as follows:

        A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;
(2) the arrest;
(3) he conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

This letter is specifically referencing the second Art. 2.139. As per this second article 2.139, this is an invocation of the entitled right noted therein for all electronic digital video/audio recordings by the officers in regard to the stop, arrest, and all interactions with the officers with [CLIENT]. Note, this demand also includes, any video/audio electronic recording of the procedure by which [CLIENT’S BREATH/BLOOD] was taken as per 2.139. In addition, I have attached to the original of this letter a blank DVD and a self-addressed stamped envelope so that DVD could be returned to me at no cost to your agency. Importantly, you are noticed that the Texas Attorney General has already spoken on this issue in its 2016 Texas Public Information Handbook, where it clearly approvingly stated that the transparent purpose of the act is to “promote an open and inclusive system of government in Texas that benefits all of our citizens”.

        In closing, please note that as per Article 2.139, this re­quest establishes an absolute right by [CLIENT] to have this electronic recording at this time. The statute does not allow a law enforcement agency to treat this invocation of an entitled right as discretionary production. Rather, the statute makes it a mandatory production. Please be aware that if this electronic recording is not produced, we will have no choice but to bring law suit pursuant to Tex. Gov’t. Code sec. 552.321, and that this would allow our client to recover attorney’s fees from your agency. That said, I thank you in advance for your professionalism and courtesy in promptly addressing invocation, and for following the law

                                               Sincerely,

B. SO WHAT HAPPENS IF THE LAW ENFORCEMENT AGENCY REFUSES?

In the event that the stopping/arresting agency fails to produce the electronic recording, the next step is to file a Motion to Compel Production and Request for Sanctions with the court where the DWI will or might be pending. In jurisdictions where a court is not yet assigned, then a Writ of Mandamus can be filed in a district court. See Tex. Gov’t. Code sec. 552.321. Our suggested motion to compel is as follows:

IV.  GO GET ’EM!

So now your liberty arsenal just got stronger! Constitutionally speaking, there is no question that our constitutional calling requires we defenders to do our absolute best in any case we have. The answers to some cases come easy while others come with great difficulty. Good lawyers don’t take “no” from the government; rather, they push to get things done. Great lawyers don’t just push, but take! Moreover, because you are great lawyers and think out of the box, what we have for you here is absolutely out of the box. We provide these tools to you both as aids to help you better protect your client’s rights and as food for thought to be a true champion of liberty. And so, we invite you to take these suggestions, run with them, improve them, and most importantly ask that you share your suggestions, improvements and experiences with all of us so that we might also benefit from them. Happy viewing!

Notes

1. It is worth noting that the State’s theory presented in Munk is not shared by all district attorney’s offices in the State. The Harris County District Attorney’s Office, for example, takes the position that “as soon as practicable” does not mean post indictment. Indeed, their routine practice is to provide a copy of the offense report and video once they receive it. Likewise, the Tarrant County District Attorney’s Office makes items available to defense counsel through their “tech share” system as soon as they receive it. While the production of discovery in these counties may still be unduly delayed, it is not because of this renegade interpretation of the MMA. In fact, the Texas District and County Attorney’s Association recently published an article entitled “Just Disclose It,” where it discusses the ethical implications of not producing discovery to the defense, and it concludes that “if there is any conceivable way in which information or evidence could be considered favorable to the defense for exculpation, impeachment, or mitigation purposes, don’t stop to wonder whether the evidence is material and admissible. Just disclose it.” http://www.tdcaa.com/print/13384. Further, you may want to remind the prosecutor of the opinion in Schultz v. The Board of Disciplinary Appeals, No. 55649 (Tex. Dec. 17, 2015), http://www.txboda.org/sites/default/files/Schultz55649%20Opinion.pdf, where failure to produce mitigating discovery was held to be a violation of Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a), which is broader that the prosecutor’s legal, constitutional duty of disclosure imposed by Brady v. Maryland.

2. The “as soon as practicable” language was recently addressed by Justice Alcala in a concurring opinion of the Texas Court of Criminal Appeals in In re Castillo, 2015 WL 4776080 (not designated for publication)(Tex.Crim.App. 2015). This was a murder case where the prosecutors refused to comply with the MMA until after indictment, and the defendant filed petition for writ of mandamus to force the state to provide the discovery as required by the MMA. Justice Alcala wrote that “the Legislature’s broad use of the phrase ‘any matter involved in the action’ cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation.” Id. at 2 [emphasis added]. Justice Alcala went on to say that “by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’” Id. Ultimately, the Texas Court of Criminal Appeals denied the Defendant’s petition for a writ of mandamus because of the limited reason that the Defendant failed to show that “he lacks any adequate remedy at law.” Id. at 3. In discussing other potential remedies, Justice Alcala suggests that the Defendant “may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time,” and that the Defendant “may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. Based on Justice Alcala’s opinion, we suggest that you ask the court to exclude any evidence derived from material that was not timely produced pursuant to the MMA.

3. Indeed, such a reading likely also violates the Texas Rules of Professional Conduct. The Professional Ethics Committee of the State Bar of Texas has said that the MMA requires an “open file policy,” and that “prosecutors would violate [Texas Rule of Professional Conduct] 8.04(a)(12) if they attempted to impose conditions not found in [the MMA] before making the required disclosures.” Tex.Comm. on Prof’l Ethics, Op. 646 (2014).

4. Of import here, on a Motion to Compel Production, is that a failure to timely produce, as measured by the “as soon as practicable” standard, will result in the prosecutor being a volunteer witness to be cross-examined as to why it was not practicable to produce the requested discovery.

5. Texas Code of Criminal Procedure 2.139 already existed before this Bill was passed. Due to an oversight, the duplicate Article number was not corrected, so there are two Articles 2.139 until this error is corrected in the next legislative session. Note that even though there are two Articles 2.139, because these Articles are not irreconcilable, both articles have full effect of law. See Tex.Gov’t.Code Sec. 311.025.