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
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!
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.