Michael Morton & Attorney-Client Privilege: Attorney General Opinion KP-0213

On September 24, 2018, the Attorney General of Texas issued an opinion, Tex. Op. Att’y Gen. KP-0213 (Sept. 24, 2018), detailing the obligations of a criminal district attorney under Texas Code of Criminal Procedure article 39.14 (the Michael Morton Act) to disclose to a defendant information obtained by the criminal district attorney during the performance of certain civil duties. This opinion is important. It will affect our discovery practice. This article is not intended to be a replacement for reading KP-0213—rather, a supplement thereto.

It was issued at the request of the Tarrant County Criminal District Attorney’s Office. That office handles not only criminal prosecutions but also the civil matters normally handled by a County Attorney’s office because Tarrant County has no County Attorney’s office. Specifically addressed are protective orders, child protective services (CPS) cases, and civil lawsuits brought by former employees. Civil representation may involve information protected by the attorney-client privilege or made confidential under statute, and it was questioned by the district attorney whether such information would be subject to disclosure under Tex. Code Crim. Proc. 39.14.

Michael Morton Act


Article 39.14(a) imposes a duty on the State, upon timely request, to produce “material” evidence to the defense if that evidence is “in the possession, custody, or control of the state or any person under contract with the state.” Branum v. State, 535 S. W. 3d 217, 224 (Tex. App.—Ft. Worth 2017, no pet.). There must be a specific request under subsection (a). “Material” has generally been defined as being “outcome determinative”—a reasonable probability that if evidence had been disclosed the outcome would have been different. Ex parte Miles, 359 S. W. 3d 647 (Tex. Crim. App. 2012). Of course, establishing what is “outcome determinative” are the specific facts of the case. Article 39.14(h) requires the state to turn over all exculpatory, impeaching, or mitigating evidence and requires no request. Both subsections require the information requested to be material.

Mandamus Right

At least one court has held that mandamus is available for release of exculpatory information under Article 39.14(h), but not for all requested information under Article 39.14(a).

Generally, a trial court’s acts involving discovery under Tex. Code Crim. App. Article 39.14 are discretionary and, as such, are not subject to a writ of mandamus. Decisions that involve pretrial discovery of evidence that is exculpatory or mitigating are not discretionary. The trial court must permit discovery if the evidence sought is material to the defense of the accused.

Exculpatory evidence is material if its effective use could make the difference between a conviction and an acquittal. Exculpatory evidence may justify, excuse, or clear the defendant from fault, while impeachment evidence is that which disputes or contradicts other evidence. The court is required to give the defendant access to exculpatory evidence, and mandamus is available to enforce that right. In re Stephen Louis Harman, 429 S.W. 3d 680, 682-683(Tex. App.—Beaumont 2014, no pet.).

Work Product

The scope of the attorney work-product doctrine is sometimes confused with that of the attorney-client privilege. The work-product doctrine is intended to protect and act as a limitation upon pretrial discovery of a lawyer’s strategies, legal theories, and mental impressions. The work-product doctrine protects the production of material—documents, emails, letters, disclosure of conversations, and so forth—and statements that set out an attorney’s litigation strategy, including opinions about the result of his investigation or that of his agents.

The underlying facts of a case (or those discovered during investigation) themselves are not work product. What the lawyer thinks about those facts is work product. Under 39.14(a), the State is not required to turn over work product. As this attorney-general opinion notes, Article 39.14(h) contains no exception for privileges. Something normally considered to be protected as work product should be required to be turned over to defense counsel because it is exculpatory and material.

What is the attorney-client privilege?

The purpose of the attorney-client privilege, on the other hand, is to promote the unrestrained communication and contact between an attorney and client in all matters in which the attorney’s professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding. The attorney-client privilege belongs to the client. The work-product privilege belongs to the lawyer. Unless the client waives the attorney-client privilege, the attorney cannot be compelled to disclose matters that come within that privilege. West v. Solito, 563 S. W. 2d 240, 245 (Tex. 1978). The party who seeks to limit discovery by asserting a privilege has the burden of proving the applicability of a particular privilege. Only confidential communications are privileged. TDPS v. Davis, 775 S. W. 2d 467, 470 (Tex. App.—Austin 1989). Rule 503 of the Texas Rules of Evidence defines confidential communications as those not intended by the client to be disclosed to third parties (other than those to whom disclosure is made in furtherance of rendition of professional legal services).

Because the attorney-client privilege tends to prevent full disclosure of the truth, the application of the privilege is narrowly construed. Not all statements made to an attorney are privileged. Before a communication to an attorney will be protected, it must appear that the communication was made by a client seeking legal advice from a lawyer in his capacity as such; the communication must relate to the purpose for which advice is sought; and there must be an indication that the client desired confidence and secrecy. TDPS at pp. 472–473.

Invocation of the attorney-client privilege is dependent upon the existence of an attorney-client relationship, which has been defined as a contractual relationship whereby an attorney agrees to render professional services for a client. That relationship may be expressly created by contract, or it may be implied from the actions of the parties. State v. DeAngelis, 116 S. W. 3d 396, 403 (Tex. App.—El Paso 2003, no pet.)

The attorney-client privilege applies not only to legal advice, but attaches to complete communications between an attorney and the client as well. It must appear that the communication was made by a client seeking legal advice from a lawyer in her capacity as such, the communication must relate to the purpose for which the advice is sought, and there must also be an indication that the client desires confidence and secrecy. State v. DeAngelis, 116 S. W. 3d 396, 404(Tex. App.—El Paso 2003, no pet.)(opinion on remand).

Information normally discoverable under the Michael Morton Act, subsection (a), is not required to be turned over to defense counsel if it is exempted by privilege such as attorney-client or work-product privilege. As the privileges are narrowly defined, it is possible to argue that the state has not met their burden of proof to establish that the requested information is privileged. Perhaps the state cannot establish an attorney-client relationship, that the communication did not relate to the purpose for which the advice was sought, or that it was not intended by the client to remain confidential.

As applied to governmental entities

Department heads are entitled to ask the County Attorney for legal advice in making employment decisions. A statutory duty is imposed on the County Attorney to give such advice. Cameron County v. Hinojosa, 760 S. W. 2d 742, 745 (Tex. App.—Corpus Christi-Edinburg 1988).

A client is a person, public officer, corporation, association, or other organization or entity—whether public or private—that is rendered professional legal services by a lawyer, or that consults a lawyer with a view to obtaining professional legal services from that lawyer. Tex. R. Evid. 503 (a)(1). When an employee of an entity communicates with the entity’s attorney for a legal matter, the communication is privileged. Texas Disciplinary Rule 1.12 cmt. 4.

In cases where the former prosecutor has been terminated from the office and has filed a lawsuit against the county, information may exist that exculpates your client. Information, reports, documents, or other evidence might exist that address that prosecutor’s integrity, competence, work ethic, or bias on your case.

Nature of the request

39.14(a) v. 39.14(h)

To the extent information obtained by the assistant criminal district attorney constitutes an item described by 39.14 (a), but is protected by attorney-client privilege, its plain language would exempt its disclosure to the defendant. 39.14 (h) contains no similar exemption for privileged items. The duty to reveal material exculpatory evidence as dictated by Brady overrides an evidentiary privilege that would otherwise have protected documents from discovery under 39.14(a).

Given the plain language of the statute and the judicial recognition that evidentiary privileges can fall in the face of Brady material, a court would likely conclude that any exculpatory information obtained by an assistant criminal district attorney, acting in a civil capacity, that meets the requirement of 39.14 (h) must be disclosed to the defendant, notwithstanding an attorney-client privilege or other evidentiary privilege. Unlike the duty under 39.14(a), which applies only after receiving a request from a defendant and extends only to tangible items, the duty under 39.14(h) applies whether or not the defendant makes a request and extends broadly to information not necessarily contained in a document or other tangible item. (Tex. Op. Att’y Gen. KP-0213, p. 4, Sept. 24,2018).

What is Brady?

Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 215 (1963), holds that suppression of evidence favorable to the accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or the bad faith of the prosecution. The due-process duty of the prosecution under Brady to disclose evidence favorable to the defendant is applicable even though there has been no request by the defendant. It encompasses impeachment evidence as well as exculpatory evidence.

The prosecutor has a duty to find out about any evidence favorable to the defense that is known to others acting on the government’s behalf in the case, including the police. If a prosecutor asserts that he complies with Brady through an open-file policy, defense counsel may reasonably rely on that file to contain all the materials the State is constitutionally obligated to disclose under Brady. Strickler v. Greene, 527 U. S. 263, 119 S. Ct. 1936, 144 L. Ed. 286 (1999).

Who is the State? Can knowledge the County Attorney has be imputed to the District Attorney and vice versa?

Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose it because the state includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case. Ex parte Miles, 359 S. W. 3d 647, 665 (Tex. Crim. App. 2012). The prosecutor’s office is an entity, and as such it is the spokesman for the Government. Giglio v. United States, 405 U. S. 150, 154 (1972).

Establishing cooperation between the entities is key

Courts have found that imposing a rigid distinction between federal and state agencies that have cooperated intimately from the outset of the investigation would artificially contort what is mandated by due process. Federal and State sovereignty have been found to overlap in many respects.

The judicial concept of a prosecution team under Brady generally provides that the State extends beyond the individual prosecutor to other members of his or her office and can include outside entities depending on the context and the circumstances. An attorney’s association with civil duties rather than criminal ones does not change the fact that he or she is a member of the prosecutor’s office. And it remains the case that courts hold prosecutors to a high standard in their accountability for the due-process obligations of their office. Given the lack of authority otherwise considering the “prosecution team” analysis within a single agency and the broad responsibility placed on prosecutors in a Brady due-process context, a court would likely conclude that the knowledge of an assistant district attorney is imputed to the prosecutor as the State for purposes of TCCP 39.14 regardless of internal division affiliation. (Tex. Op. Att’y Gen. KP-0213, Sept. 24, 2018).

Knowledge of state investigators might be imputed to a federal prosecutor for purposes of Brady. Rather than a per se rule there is a case-by-case analysis of the extent of interaction and cooperation between the two governments. United States v. Antone, 603 F. 2d 566, 569–570 (5th Cir. 1979). However, prosecutors need not search the files of government agencies that are uninvolved in and unrelated to the prosecution for evidence that might have impeachment value to the defense. State v. Moore, 240 S. W. 3d 324, 328 (Tex. App.—Austin 2007, pet. ref’d.).

Court order required

A court would likely conclude that any exculpatory information that is obtained by a criminal district attorney that meets the requirement of 39.14(h) but that is made confidential by Tex. Family Code § 261.201 shall be pursued only by court order under § 261.201(b) or (c). (KP-0213). Tex. Family Code § 261.201 addresses the confidentiality of reports of abuse and neglect. It also contains a long laundry list of items created in the investigatory process that are rendered confidential by this statute.

A court order would mean an in camera inspection. The trial court should be willing to entertain an ex parte meeting with defense counsel to be able to recognize exculpatory information without defense counsel having to lay out trial strategy in front of the prosecution.


The September 24th opinion raises a lot of questions. When is knowledge that the County Attorney gains when defending the county against a lawsuit, prosecuting cases for children’s protective services, or obtaining a protective order to be imputed to the District Attorney? And when is information that the District Attorney has to be imputed to the County Attorney? Generally, the District and County Attorney’s databases of information are linked electronically. Does this change our pretrial motions? Does this opinion affect other civil matters typically handled by the County or District Attorney’s office not addressed? What if those matters are “farmed out” to a private firm?

Criminal defense lawyers are smart and creative. We really care about our clients and want to do a good job for them. This opinion will help. Arguments should be made that this newly available information is material, exculpatory, and/or that it is not privileged.

Janet Burnett
Janet Burnett
Janet Burnett is a board certified criminal defense lawyer in solo practice in Georgetown, Texas. She has an appellate practice. Janet’s practice is primarily research and writing (for her own clients and for other lawyers’ clients through Rent-a-Nerd). She can be reached at .

Janet Burnett is a board certified criminal defense lawyer in solo practice in Georgetown, Texas. She has an appellate practice. Janet’s practice is primarily research and writing (for her own clients and for other lawyers’ clients through Rent-a-Nerd). She can be reached at .

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