IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-93,137-01

IN RE CITY OF LUBBOCK, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS

CAUSE NO. 2020-421,049

IN THE 140TH DISTRICT COURT OF LUBBOCK COUNTY

CAUSE NO. 07-21-00070-CV 

IN THE SEVENTH COURT OF APPEALS

NEWELL, J., delivered the opinion of the Court in which 

HERVEY, RICHARDSON, YEARY, WALKER, and MCCLURE, JJ., joined. 

KELLER, P.J., filed a concurring opinion in which KEEL, J., joined. 

SLAUGHTER, J., dissented. 

Does a trial court in a criminal proceeding have authority to hold 

an ex parte hearing and enter an ex parte order compelling a third party 

to produce documents without notice to the prosecutor representing the 
City of Lubbock — 2

State? No. Ex parte proceedings require express authorization. The 

trial court did not have express authorization to consider the ex parte

motion in this case or to enter the ex parte order. Therefore, we 

conditionally grant the City of Lubbock’s Petition for a Writ of Mandamus. 

Background

The facts of this case are largely undisputed and are primarily 

procedural in nature. The Lubbock County Criminal District Attorney 

charged the Real Party in Interest, Rodolfo Zambrano, with the offense 

of sexual assault of a child.1 That case is pending before the 140th 

District Court in Lubbock County, Texas. 

The Real Party in Interest filed a pre-trial “Ex Parte Motion for 

Court Ordered Production of Documents and/or Things,” seeking a court 

order for the production of documents held by the Lubbock Police 

Department. The motion, which was filed under seal, referred to itself 

as “an ex parte motion for third party discovery,” and requested that 

the trial court order the Lubbock Police Department to “provide all 

records” regarding J.G., a child, “including but not limited to: records 

where she was reported to be a child victim of sexual abuse” to counsel 

1 TEX. PENAL CODE § 22.011(a)(2). The Lubbock County Criminal District Attorney is the 

exclusive representative of the state in all criminal matters before district and county courts 

in Lubbock County. TEX. GOV’T. CODE § 44.252. 
City of Lubbock — 3

for the Real Party in Interest. The motion further requested that the 

trial court order the Lubbock Police Department to “maintain the 

confidentiality of this request and not reveal it to the State.”

In support of the motion, the Real Party in Interest alleged that 

the requested items were relevant and material to his defense without 

providing any factual support for his claims. The Real Party in Interest 

argued that the Code of Criminal Procedure, specifically the Chapter 

authorizing subpoenas, infringed upon his constitutional rights by 

requiring the defense to disclose information concerning his defense to 

the State. He relied upon Ake v. Oklahoma2 and Williams v. State3 as 

support for seeking the records ex parte, arguing that the defense 

should not be required to disclose its investigative strategies or theories

through its request for discovery. Respondent, Presiding Judge of the 

140th District Court, granted the motion and ordered the Lubbock Police 

Department to provide the requested records to the Real Party in 

Interest and not disclose the order to the Lubbock County District 

Attorney’s Office. 

2 Ake v. Oklahoma, 470 U.S. 68 (1985).

3 Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997).
City of Lubbock — 4

Relator, the City of Lubbock, filed a response to the ex parte order 

along with a motion to stay the order. Relator argued that the request 

exceeded the narrow scope of Ake and Williams, which are limited to

requests for the funding of experts for indigent defendants. Relator also 

complained that the Real Party in Interest had not given notice of the 

motion prior to the order in violation of due process and, to the extent 

the Real Party in Interest was relying upon a constitutional challenge to 

statutory discovery mechanisms, notice to the Attorney General was 

required.4 Relator argued that the Real Party in Interest must adhere 

to the discovery procedures laid out in Articles 24.02, 24.03 and 39.14 

of the Code of Criminal Procedure. Finally, Relator argued the records 

requested were confidential as a matter of law and that there was no 

constitutional right to their production. In response to Relator’s motion, 

the trial court set the matter for an ex parte hearing.5 

At the hearing, the Real Party in Interest presented the trial court 

with an amended motion which restated its substantive arguments for 

the ex parte production of the requested records but requested that the 

4 TEX. GOV’T CODE § 402.010. 

5 This Court has not been provided a transcript of this hearing. However, it is undisputed that 

Relator and the Real Party in Interest were present at the hearing, but a representative for 

the Lubbock County Criminal District Attorney was not present and did not have notice of the 

hearing. 
City of Lubbock — 5

documents be produced to the trial court for an in camera inspection

rather than be provided to counsel directly.6 Following the hearing, the 

trial court vacated its prior order and reserved ruling on the amended 

motion. In a post-hearing brief, the Real Party in Interest also argued 

that the proceedings must be ex parte to protect his rights to due 

process, effective assistance of counsel, and work product.

The trial court granted the Real Party in Interest’s amended motion 

and ordered the Lubbock Police Department to produce the requested 

records to the court for in camera inspection. The trial court again 

ordered the parties to maintain the confidentiality of the ex parte order

by not revealing the existence of the motion or the order to the Lubbock 

County Criminal District Attorney’s Office. Thereafter, Relator filed a

motion to stay the amended order pending the filing of a petition for a 

writ of mandamus in the court of appeals, which the trial court granted.

Seventh Court of Appeals

Relator filed a petition for a writ of mandamus before the Seventh 

Court of Appeals in Amarillo seeking to have the district court’s ex parte 

order set aside. In two issues, Relator argued that the trial court abused 

6 Specifically, the amended motion requested that the trial court “conduct an in camera 

inspection of such records to ensure that all information to be turned over to defense is 

material and relevant under Brady, CCP 39.14, and Watkins to the development of a defense 

or mitigation.”
City of Lubbock — 6

its discretion by implicitly finding that provisions of the Code of Criminal 

Procedure relevant to discovery are unconstitutional without requiring 

that the Attorney General be made a party to the proceeding. Relator 

also argued that the trial court abused its discretion by issuing an ex 

parte order for discovery without adhering to statutory requirements for 

discovery or providing notice to the State or other interested parties.

In response, the Real Party in Interest argued that his request falls 

outside of Articles 24.02 or 39.14—or any statutory provision—such that 

there was no constitutional challenge or finding necessitating the 

involvement of the Attorney General. Rather, the Real Party in Interest

argued that his request was based on his constitutional rights such that 

ex parte review by the trial court was appropriate and within the trial 

court’s inherent authority even without specific statutory authorization. 

The Real Party in Interest relied upon this Court’s holding in Williams as

support for his contention and argued additionally that his due process 

right to present a defense and Sixth Amendment right to effective 

assistance would be impeded but for the ex parte nature of the 

proceedings. He also argued that the work-product doctrine required

the proceedings to be ex parte. Thus, he maintained that the trial court 

did not err by failing to require notice to the Attorney General, 
City of Lubbock — 7 

conducting the proceedings ex parte, or by entering an ex parte order 

for the production of the documents to be reviewed in camera. 

The Seventh Court of Appeals denied Relator’s petition.7 The court 

of appeals held that Relator has no adequate remedy at law, as is a 

prerequisite for mandamus relief, because Relator is not a party to the 

underlying criminal proceeding.8 Turning to the merits, the court of 

appeals further found that notice to the Attorney General was not

required because the Real Party in Interest was not challenging the 

constitutionality of any statute.9 Rather, the court explained that the

Real Party in Interest based his request on the constitutional right to 

due process.10 The court concluded that Relator’s claim that Articles 

24.02, 24.03 and 39.14 of the Code of Criminal Procedure are the 

exclusive vehicles for such a request is the only claim that calls the 

question of the constitutionality of those statutes in question.11 Thus, 

7 In re City of Lubbock, No. 07-21-00070-CV, 2021 WL 3930727 (Tex. App.—Amarillo Sep. 2, 

2021, orig. proceeding) (mem. op.). 

8 Id. at *2 (citing In re BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746 at *2 

(Tex. App.—Dallas Apr. 14, 2014, orig. proceeding) (mem. op.) (“[m]andamus is proper 

remedy for a trial court’s action against a non-party who has no right of appeal, but has 

standing in the mandamus proceeding.”).

9 Id. at 5. 

10 Id. 

11 Id.
City of Lubbock — 8

the court overruled Relator’s claim that notice to the Attorney General 

was necessary.12

Next, the court of appeals addressed Relator’s argument that the 

trial court exceeded its authority by conducting the proceedings and 

ordering the production of documents ex parte and without notice to the 

State. After laying out the Real Party in Interest’s arguments, the Court 

noted that neither the Supreme Court in Ake nor this Court in Williams

or Rey v. State,13 discussed the propriety of utilizing ex parte motions 

to obtain documents and things like the request at issue here. However, 

the court concluded that the use of ex parte proceedings to protect 

defensive strategy has been widely accepted by the courts.14 The court

of appeals held that the trial court acted within its authority when it 

entered the ex parte order at issue and denied mandamus relief. The 

court provided no further support, explanation, or example for its 

conclusion that ex parte proceedings to protect defensive strategy has 

been widely accepted.

12 Id. 

13 Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). 

14 In re City of Lubbock, No. 07-21-00070-CV, at *6.
City of Lubbock — 9 

In a concurring opinion, Chief Justice Brian Quinn indicated he 

would reach the same result but for a different reason.15 The Chief 

Justice noted that the trial court ordered the production of the requested 

documents in camera but expressly reserved its decision on what to do 

with the records once inspected.16 Based upon this observation, Chief 

Justice Quinn concluded that Relator’s arguments related to the 

discovery of the documents and were premature.17 Thus, Chief Justice 

Quinn agreed the trial court had not abused its discretion. Chief Justice 

Quinn also questioned Relator’s standing to challenge the scope of 

discovery in a criminal proceeding outside its jurisdiction.18 Chief Justice

Quinn also noted that the Lubbock County Criminal District Attorney

should have the opportunity to participate in the resolution of a 

discovery dispute.19 Relator now seeks review in this Court.

15 Id. 

16 Id. 

17 Id. 

18 Id. at 7. Chief Justice Quinn’s concern regarding standing is well taken. However, Relator 

had standing to contest the trial court’s order for the production of documents by virtue of 

the fact that it was the entity ordered to produce documents in its possession. See Terrazas 

v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (“To be entitled to mandamus, relators must 

have a justiciable interest in the underlying controversy . . . A person need not be a party to 

the underlying litigation in order to seek mandamus relief.”); see e.g. In re Union Pacific R. 

Co., 6 S.W.3d 310, 311-12 (Tex. App.—Houston [14th Dist.] 1999).

19 Id. (“At the very least, the State should be afforded opportunity to participate in the 

resolution of the discovery dispute, especially since the controversy is now part of the public 

record.”). Chief Justice Quinn did not otherwise address the propriety of the ex parte nature 

of the proceedings below. 
City of Lubbock — 10

Petition for Mandamus

Relator seeks a writ of mandamus against the Seventh Court of 

Appeals compelling it to vacate its denial of mandamus against the trial 

court. In a single issue, Relator’s petition asks this Court to consider

whether Articles 24.02 and 39.14 of the Texas Code of Criminal 

Procedure are the exclusive means by which a party may seek the 

discovery of relevant information under the control of a third party.

The parties’ arguments are largely the same as those presented to 

the court of appeals. Relator argues that the trial court’s authority to 

enter discovery orders in the underlying criminal proceeding is limited 

to the authority granted by Article 39.14 and, more generally, that by 

entering the order at issue in this case, the trial court exceeded its

statutory and inherent authority. Relator also maintains that the 

holdings in Ake and Williams are not applicable to the production of 

documents requested and do not support the ex parte nature of the 

request and underlying proceedings related to the request.

In response, the Real Party in Interest contends that provisions of 

the Code of Criminal Procedure governing discovery and subpoenas are 

simply two means, but not the only or exclusive means, of obtaining 

information and that neither provision applies to the request for records

at issue. Rather, he contends he has a constitutional right to discovery, 
City of Lubbock — 11

which supports the trial court’s authority to hold ex parte hearings

concerning the discovery of evidence not covered by Articles 24.02 and 

39.14. He maintains that ex parte proceedings are required by the 

work-product doctrine and necessary to protect his constitutional rights

to due process, to present a defense, and to the effective assistance of 

counsel.

Companion Case and Amicus Briefing

In a related petition for a writ of mandamus, arising from the same 

underlying criminal proceeding, Lubbock County Criminal District 

Attorney K. Sunshine Stanek seeks mandamus relief from this Court

against the 140th District Court compelling it to vacate the ex parte 

order at issue here. In her petition, the District Attorney argues that the 

trial court exceeded its authority by ordering the ex parte production of 

the requested records. The District Attorney argues that the State was

improperly excluded from the proceedings below and that ex parte 

communications are prohibited unless expressly provided for by law. 

She echoes the argument of Relator that neither Ake nor Williams 

provides support for obtaining documents from a third party and notes 

that no showing, like the one required for obtaining the appointment of 

an expert ex parte, is required for discovery. Further, like the Relator in 
City of Lubbock — 12

the instant petition, the District Attorney contends that Article 39.14 

governs the discovery sought by the Real Party in Interest. 

We note that the arguments made by the Lubbock County Criminal 

District Attorney and the City of Lubbock are essentially the same, but 

the District Attorney did not previously seek mandamus relief from the 

court of appeals.20 However, the District Attorney only became aware 

of these proceedings when the court of appeals issued its opinion below. 

As we explain in the companion case, issued today, rather than exercise 

our original mandamus jurisdiction over the companion case, we will 

treat this related petition as an amicus brief.21

We also note that the State Prosecuting Attorney filed a brief as 

amicus curiae in support of the petitions filed by Relator and the Lubbock 

County Criminal District Attorney.22 The State Prosecuting Attorney 

argues that documents and other tangible things not yet in the 

possession of a prosecutor’s office are not in the State’s possession for 

20 See Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (petition for a writ of 

mandamus should first be presented to the court of appeals absent a compelling reason not 

to do so). 

21 See State ex rel. Stanek, No. WR-93,160-01, slip op. at 6 (Tex. Crim. App. Jan. 25, 2023).

22 In response to the City of Lubbock and Lubbock District Attorney’s petitions, this Court 

stayed the District Court’s order and held the motions for leave to file writs of mandamus in 

abeyance. The Court invited the Real Party in Interest, District Court, and Seventh Court of 

Appeals to respond to the Relators’ arguments within 30 days. Only the Real Party in Interest 

filed a response.
City of Lubbock — 13

purposes of Article 39.14 discovery. However, the State Prosecuting 

Attorney’s Office argues this limitation does not undermine the Relator’s

arguments that Articles 39.14 and 24.02 provide the exclusive means 

for third-party discovery. To the extent that these arguments conflict

with positions taken by the Relator and the Lubbock County District 

Attorney, we need not reach them.

Indeed, we need not reach the larger question of whether Articles 

24.02 and 39.14 provide the exclusive means of discovery. Neither do 

we need to address whether the trial court had the inherent authority 

to issue the order in this case. Rather, as we will explain below, we 

need only decide whether the ex parte nature of the proceeding was 

expressly and constitutionally authorized. It was not. 

Standard of Review

We review a court of appeals’ denial of mandamus relief against a 

trial court de novo by reviewing the propriety of the trial court’s conduct 

itself to determine whether the trial court’s order should be vacated.23 

To be entitled to mandamus relief, the record must establish that (1) 

Relator has no adequate remedy at law and (2) that what it seeks to 

23 In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (citing In re State ex rel. Wice v. 

Fifth Judicial Dist. Court of Appeals, 581 S.W.3d 189, 193-94 (Tex. Crim. App. 2018) (“we 

review the propriety of the trial court’s conduct itself by undertaking a de novo application of 

the two pronged test for mandamus relief.”)).
City of Lubbock — 14

compel is a purely ministerial act, not an act involving a discretionary 

judicial decision.24 To satisfy the ministerial-act requirement, the relief 

sought must be clear and indisputable such that its merits are beyond 

dispute and there is nothing left to the exercise of discretion or 

judgment.25 A clear right to relief is shown when the facts and

circumstances dictate but one decision “under unequivocal, well-settled

(i.e., from extant statutory, constitutional, or case law sources), and 

clearly controlling legal principles.”26 When a trial court acts beyond the 

scope of its lawful authority, a clear right to relief exists.27 Mandamus 

relief is available for a novel issue or one of first impression with 

uncontested facts when the law points to but one clear result.28 As our 

sister court has phrased it, “a clear failure by the trial court to analyze 

24 In re State ex. rel. Weeks, 391 S.W.3d 117, 123 (Tex. Crim. App. 2013).

25 Id.

26 Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011).

27 In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (granting mandamus 

relief because it was “clear and indisputable that the [COVID-19] Emergency Order did not 

confer upon the trial court the authority to conduct a bench trial without the States consent.”); 

see also State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506 (Tex. Crim. App. 2011) 

(concluding that mandamus relief was warranted where trial court did not have legal authority 

to hold a hearing and acted beyond the scope of lawful authority).

28 Weeks, 610 S.W.3d at 122.
City of Lubbock — 15

or apply the law correctly will constitute an abuse of discretion, and may

result in appellate reversal by extraordinary writ.”29

For example, in Joachim v. Chambers, the Texas Supreme Court

granted mandamus relief when a trial court refused strike a trial judge’s

testimony as an expert witness in a case over which the judge was still 

a judicial officer.30 The Court explained that such conduct violates

Canon 2 of the Texas Code of Judicial Conduct which specifically 

prohibits a judge from testifying voluntarily in an adjudicative

proceeding as a character witness.31 According to the Court, “[t]he 

29 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (citing Joachim v. Chambers, 815 

S.W.2d 234, 240 (Tex. 1991) (holding that the trial court clearly abused its discretion by 

misinterpreting the Code of Judicial Conduct)); see also Dickens v. Court of Appeals for 

Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 550 (Tex. Crim. App. 1987) 

(“Therefore, we adopt the clear abuse of discretion standard when reviewing the mandamus 

actions of the courts of appeals and apply it to the instant case.”); Houlihan v. State, 579 

S.W.2d 213, 218 n. 7 (Tex. Crim. App. 1979) (“It is axiomatic that the writ of mandamus 

may not be utilized to revise or correct an error in discretion committed in exercise of a judicial 

duty unless in the particular case there is a clear abuse of discretion.”) (citing Womack v. 

Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956)).

30 Joachim, 815 S.W.2d at 240. In the case, the Respondent, Hon. Eugene Chambers, was 

presiding over a legal malpractice suit involving a settlement agreement that had fallen apart. 

Id. at 235. Judge Goddard had presided over the underlying lawsuit that had given rise to 

the failed settlement agreement. Id. He had been sitting by assignment for the elected judge

of the 11th District Court, Hon. William N. Blanton. Id. After a court of appeals determined 

that the settlement agreement had not been rendered by Judge Goddard, parties filed a legal 

malpractice action in the 11th District Court. Id. at 235-36; see also Buffalo Bag Co. v. 

Joachim, 704 S.W.2d 482 (Tex. App.—Houston [14th Dist. 1986, writ ref’d n.r.e.). By that 

time Judge Goddard had passed away, so the defendants to the lawsuit sought an affidavit 

from Judge Blanton to give his expert opinion regarding whether a docket entry by Judge 

Goddard was a judicial action or the action of an attorney. Joachim, 815 S.W.2d. at 236. The 

mandamus action concerned the actions of Judge Chambers who was apparently set to 

preside over the legal malpractice trial and was named as the Respondent in the mandamus 

action.

31 Id. at 237-38.
City of Lubbock — 16

appearance of a judge as a witness threatens, rather than promotes, 

public confidence in the integrity and impartiality of the judiciary.”32 

Based upon this ethical prohibition, the Court held that the trial court 

“clearly abused his discretion” in refusing to strike the affidavit and 

refusing to order the defendants not to call the judge as a witness and 

granted mandamus relief.33

Analysis 

The question before this Court is whether the trial court lacked 

authority to order the ex parte production of documents from a thirdparty to the underlying criminal proceedings without notice to the 

Lubbock County District Attorney’s Office upon an ex parte request from 

the defendant in that criminal proceeding. As an initial matter, it is 

undisputed that Relator would have no right to appeal the trial court’s 

order at the conclusion of the underlying criminal proceeding as it is not 

a party to that proceeding. The lower court correctly concluded that 

mandamus was the proper remedy for a trial court’s action against a 

32 Id. at 238.

33 Id.
City of Lubbock — 17

non-party.34 The first prong necessary for mandamus relief is

satisfied.35 

To be entitled to relief under the second prong, Relator must be 

able to show that it has a clear right to the relief of vacating the trial 

court’s ex parte order.36 Mandamus will issue if the trial court lacked 

authority or exceeded its authority by entering the order.37 As we will 

discuss in greater detail below, Relator has established a clear right of 

relief because the trial court was without authority to entertain an ex 

parte request for third-party discovery. Likewise, it lacked authority to 

enter an ex parte order for that discovery. First, there is no statutory 

provision that grants a trial court express authority to consider a

discovery request in an ex parte proceeding. Second, the United States 

Supreme Court decision in Ake v. Oklahoma and the Texas Court of 

Criminal Appeals decision in Williams v. State regarding ex parte 

proceedings for the appointment of defense experts have never been 

34 In re City of Lubbock, No. 07-21-00070-CV, 2021 WL 3930727 at * 3-4 (citing In re 

BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746 at *2).

35 State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 203 (Tex. Crim. App. 2003) (“Relator has 

no right to appeal respondent’s order. We have decided that this satisfies the no adequate 

legal remedy mandamus requirement”). The Real Party in Interest concedes that Relator 

meets the first prong for mandamus relief.

36 Wice, 581 S.W.3d at 194.

37 Id; Ogg, 618 S.W.3d at 365; Watkins, 352 S.W.3d 493 at 506 (determining there is a 

clear right to relief when trial court acts without legal authority). 
City of Lubbock — 18

extended to cover criminal discovery as a matter of constitutional law. 

Third, the underlying rationale justifying ex parte proceedings in Ake 

and Williams does not extend to criminal discovery. Relator is thus 

entitled to mandamus relief.

Ex Parte vs. In Camera 

At the outset, we must clarify the distinction between an ex parte

communication and an in camera inspection. An ex parte

communication includes communication that concern matters between 

a lawyer representing a client and a judicial officer and that occurs 

outside of the presence and without the consent of other parties to the 

litigation or their representatives.38 “In camera,” on the other hand, 

refers most often to action taken in a judge’s chambers.39 Trial courts 

can inspect evidence in camera when there is a dispute about whether 

such evidence can be disclosed.40 

38 Retzlaff v. GoAmerica Comms. Corp., 356 S.W.3d 689, 694 (Tex. App.—El Paso, 2011) 

(citing RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 113 cmt. c (2000)); see also 

Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas, pet. ref’d) (“An ex parte 

communication is one that involves fewer than all parties who are legally entitled to be present 

during the discussion of any matter with the judge.”); Ex Parte Communication, Black’s Law 

Dictionary (11th ed. 2019) (“A communication between counsel or a party and the court when 

opposing counsel or party is not present – such communications are ordinarily prohibited”). 

39 In Camera, Black's Law Dictionary (11th ed. 2019).

40 Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App. 1992); see also In re E.I. DuPont 

de Nemours and Co., 136 S.W.3d 218, 223 (Tex. 2004) (“Generally, a trial court conducts an 

in camera inspection to determine if a document is in fact privileged.”); In Camera Inspection, 

Black's Law Dictionary (11th ed. 2019) (A trial judge’s private consideration of evidence).
City of Lubbock — 19

But in camera inspections are distinct from an ex parte proceeding. 

While an in camera inspection takes place in the absence of the parties, 

the proceeding is not an ex parte proceeding because both parties are 

still involved in the hearing that results in the in camera inspection. The 

request for disclosure itself is not confidential and both parties are given 

the opportunity to argue the merits of whether or not particular evidence 

should be disclosed. In this way, an in camera inspection is still part of 

an adversarial proceeding and does not diminish a trial court’s 

impartiality. An ex parte hearing, however, transforms the nature of 

the proceeding by eliminating the participation of one of the parties and, 

as will be discussed more fully below, must be expressly authorized by 

law.

In his concurring opinion, Chief Justice Quinn asserted that 

because the trial court ordered the documents produced for in camera

inspection, “the true issue involves the authority of the trial court to 

order the delivery of the records to it for is review.”41 We disagree. The

order for in camera inspection was still an ex parte order made as a 

result of ex parte proceedings without the consent of or notice to the 

Lubbock County District Attorney’s Office. The question before us is not 

41 In re City of Lubbock, No. 07-21-00070-CV, at *6.
City of Lubbock — 20

whether a trial court could conduct an in camera inspection of the 

requested documents, but whether the trial court had express authority 

to conduct the ex parte proceeding and enter the ex parte order.

Ex Parte Communications are Prohibited Unless Expressly Authorized

American courts function in an adversarial system of 

adjudication.42 This is unlike the judge-dominated inquisitorial systems 

of continental Europe and Latin America in that an adversary system 

relies on a neutral and passive decision maker to adjudicate disputes 

after they have been aired by the adversaries in a contested 

proceeding.43 As the late Supreme Court Justice Antonin Scalia 

explained, “What makes a system adversarial rather than inquisitorial is 

. . . the presence of a judge who does not (as an inquisitor does) conduct 

the factual and legal investigation himself[.]”44 Courts are essentially 

passive instruments that do not and should not “sally forth each day 

looking for wrongs to right.”45 

To that end, judges are prohibited from permitting or considering

ex parte communications from a party to pending litigation unless 

42 See, e.g., United States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020).

43 See Stephan Landsman, The Adversary System: A Description and Defense 2 (1984).

44 McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).

45 Sineneng-Smith, 140 S.Ct. at 1579.
City of Lubbock — 21

expressly authorized by law.46 The Texas Code of Judicial Conduct

provides:

A judge shall accord to every person who has a legal interest 

in a proceeding, or that person’s lawyer the right to be heard 

according to law. A judge shall not initiate, permit or consider 

ex parte communications made to the judge outside the 

presence of the parties between the judge and a party, an 

attorney . . . or any other court appointee concerning the 

merits of a pending or impending judicial proceeding . . . This 

subsection does not prohibit . . . considering an ex parte 

communication expressly authorized by law.47

46 The Texas Supreme Court has held that mandamus relief may be appropriate when a 

particular action by a judge is prohibited by a cannon of judicial conduct. See Joachim, 815 

S.W.2d at 239-241 (prohibiting defendants from calling a trial court judge to testify as an 

expert witness in the pending litigation because doing so violated Cannon 2 of the Code of 

Judicial Conduct).

47 Tex. Code Jud. Conduct, Cannon 3(B)(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. 

G, app.B; Anderson v. State, 625 S.W.3d 128, 131 (Tex. Crim. App. 2021) (“judges are 

ethically prohibited from receiving ex parte communications from a party.”). Every state in 

the country has a similar provision prohibiting ex parte communications unless that 

communication is expressly authorized by law or unless specific conditions are met (none of 

which are present in this case). See Ala. Canons of Jud. Ethics, Canon 3(4); Alaska Code of 

Jud. Conduct, Canon 3(7); Arizona Code of Jud. Conduct, Rule 2.9(A); Arkansas Code of Jud. 

Conduct, Rule 2.9(A); Cal. Code of Judicial Ethics, Canon 3(7); Colorado Code of Jud. Conduct, 

Rule 2.9(A); Conn. Code of Jud. Conduct, Canon 3(4); Fla. Code of Jud. Conduct, Canon 

3(B)(7); Georgia Uniform Superior Court Rule 4.1; Georgia Code of Judicial Conduct, Rule 

2.9(A); Hawaii Code of Jud. Conduct, Rule 2.9(a); Idaho Code of Judicial Conduct, Rule 

2.9(A); Illinois Code of Jud. Conduct, Rule 63(5); Indiana Code of Jud. Conduct, Rule 2.9(A); 

Iowa Code of Jud. Conduct, Canon 2, Rule 51:2.9(A); Kansas Code of Jud. Conduct, Canon 

2; Rule 2.9(A); Kentucky Code of Jud. Conduct, Canon 2, Rule 2.9(A); Louisiana Code of 

Judicial Conduct, Canon 3(6); Maine Code of Jud. Conduct, Canon 2, Rule 2.9(A); Maryland 

Code of Judicial Conduct Rule 18-102.9(a); Massachusetts Code of Jud. Conduct, Canon 2, 

Rule 2.9(A); Michigan Code of Judicial Conduct, Canon 3(A)(4); Minnesota Code of Jud. 

Conduct, Canon 2, Rule 2.9(A); Mississippi Code of Jud. Conduct, Canon 3(B)(7); Missouri 

Code of Jud. Conduct, Canon 2, Rule 2-2.9(A); Montana Code of Jud. Conduct, Canon 2, Rules 

2.9 & 2.10; Nebraska Code of Jud. Conduct, Canon 2, § 5-302.9(A); Nevada Code of Jud. 

Conduct, Canon 2, Rule 2.9(A); New Hampshire Code of Jud. Conduct, Canon 2, Rule 2.9(A);

New Jersey Code of Jud. Conduct, Canon 3, Rule 3.8; New Mexico Code of Jud. Conduct, Rule 

21-209(A); New York Code of Jud. Conduct, Canon 3(6); North Carolina Code of Jud. Conduct, 

Canon 3(A)(4); North Dakota Code of Jud. Conduct, Canon 2, Rule 2.9(A); Ohio Code of Jud. 

Conduct, Canon 2, Rule 2.9(A); Oklahoma Code of Jud. Conduct, Canon 2, Rule 2.9(A); 

Oregon Code of Jud. Conduct, Rule 3.9(A); Pennsylvania Code of Jud. Conduct, Canon 2, Rule 

2.9(A); Rhode Island Code of Jud. Conduct, Canon 2, Rule 2.9(A); South Carolina Code of 

Jud. Conduct, Canon 3(B)(7); South Dakota Code of Jud. Conduct, Canon 3(B)(7); Tennessee 

Code of Jud. Conduct, Canon 2, Rule 2.9(A); Utah Code of Jud. Conduct, Canon 2, Rule 2.9(A); 
City of Lubbock — 22

Likewise, lawyers are prohibited from communicating with judges 

concerning pending matters other than as permitted by law.48 The 

purpose behind prohibiting ex parte communications is to preserve 

Vermont Code of Jud. Conduct, Canon 2, Rule 2.9(A); Virginia Canons of Jud. Conduct, Canon 

1(J); Washington Code of Jud. Conduct, Canon 2, Rule 2.9(A); West Virginia Code of Jud. 

Conduct, Canon 2, Rule 2.9(A); Wisconsin Code of Jud. Conduct, Ch. 60, Supreme Court Rule 

60.04(1)(g); Wyoming Code of Jud. Conduct, Canon 2, Rule 2.9(A). The same is true of 

federal courts and the District of Columbia. See Code of Conduct Canon 3A(4); District of 

Columbia Rules of Jud. Conduct, Rule 2.9(A).

48 A lawyer shall not:

(b) except as otherwise permitted by law and not prohibited by the applicable rules of 

practice of procedure, communicate or cause another to communicate ex parte with a 

tribunal for the purpose of influencing that entity or person concerning a pending 

matter other that:

(1) In the course of official proceedings in this cause;

(2) In writing if he promptly delivers a copy of the writing to opposing counsel 

or the adverse party if he is not represented by a lawyer; 

(3) Orally upon adequate notice to opposing counsel or to the adverse party if 

he is not represented by a lawyer.

Tex. Disciplinary Rules Prof’l Conduct 3.05, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. 

G, app. A-1. Every state in the country as well as the District of Columbia has a similar 

provision. See Rule 3.5, Ala. R. Prof. Cond.; Alaska R. Prof. Conduct 3.5; Ariz. Sup. Ct. Rule 

42, RPC ER 3.5; Arkansas Rules of Prof. Conduct, Rule 3.5; California Rules Prof. Conduct, 

Rule 3.5; Colo. RPC 3.5; Conn. R. Prof. Conduct, Rule 3.5; DEL. LAWYERS' RULES OF PROF'L 

CONDUCT R. 3.5; R. Regulating Fla. Bar 4–3.5; Ga. Bar Rules and Regs., Rule 4–102, RPC 

Rules 3.5; HRPC 3.5; I.R.P.C. Rule 3.5; Ill. R. Prof. Conduct R. 3.5; Ind. Professional Conduct 

Rule 3.5; Iowa R. Prof'l Conduct 32:3.5; Kan. Sup. Ct. R. 240, KRPC 3.5; Ky. SCR 3.130(3.5); 

La. R. Prof. Conduct 3.5; M. R. Prof. Conduct 3.5; Md. Rule 19-303.5; Mass. R. Prof. C. 3.5; 

MRPC 3.5; Minn. R. Prof. Conduct 3.5; Miss. R. Prof. Conduct 3.5; Mo. S. Ct. R 4-3.5; M. R. 

Pro. C. 3.5; Neb. Ct. R. of Prof. Cond. § 3–503.5; Nev. RPC 3.5; N.H.R. Prof. Conduct 3.5;

N.J. RPC 3.5; Rule 16-305 NMRA; Rules of Professional Conduct [22 NYCRR 1200.0] Rule 3.5;

N.C. Rev. R. Prof. Conduct 3.5; N.D.R. Prof. Conduct 3.5; Ohio Prof. Cond. R. 3.5; OK Rules 

of Prof. Conduct, Rule 3.5, 5 O. S. A. Ch. 1, App. 3-A; Oregon Rules of Prof. Conduct, Rule 

3.5; Pa. Rules of Prof. Conduct, Rule 3.5, 42 Pa.C.S.A; Rhode Island Sup. Ct. Rules, Art. V, 

Rules of Prof. Conduct, Rule 3.5; Rule 407, SCACR, Rules of Prof. Conduct, Rule 3.5; SDCL 

RPC, App, Ch. 16-18 Rule 3.5; Tn. Sup. Ct. Rules, Rule 8, RPC 3.5; UT Rules of Prof. Conduct, 

Rule 3.5; Vt. Rules Prof. Cond., Rule 3.5; Va. R. S. Ct. PT 6 § 2 RPC Rule 3.5; Wa. RPC 3.5; 

Wv. Rules of Prof. Conduct Rule 7.3; Wi. SCR 20:3.5; Wyo. R. Prof. Conduct, Rule 3.5; DC 

Rules of Prof. Conduct, Rule 3.5.
City of Lubbock — 23

judicial impartiality and ensure that all legally interested parties are 

given their full right to be heard under the law.49 Ex parte 

communications are so disfavored that, in some instances, an ex parte 

communication with a tribunal may even amount to a criminal offense.50 

The default understanding is that the parties should not 

communicate with the trial court regarding pending matters before the 

court without the presence of all parties. Absent express authorization, 

a trial court is not authorized to must not consider ex parte 

communications from one party without notice to the other concerning 

matters pending before court. While the Code of Criminal Procedure 

recognizes and expressly authorizes ex parte communications in some 

instances,51 there is no statutory provision that expressly authorizes an 

49 Tex. Code Jud. Conduct, Cannon 3(B)(8); see also Youkers, 400 S.W.3d at 206 (“An ex 

parte communication is one that involves fewer than all parties who are legally entitled to be 

present during the discussion of any matter with the judge . . . Ex parte communications are 

prohibited because they are inconsistent with the right of every litigant to be heard and with 

the principle of maintaining an impartial judiciary.”) (internal citations omitted); see also 

Joachim, 815 S.W.2d at 238 (explaining that mandamus relief was appropriate to strike a 

judge’s expert testimony because allowing a judge to testify as an expert in a case in which 

he was a judicial officer threatened public confidence in the integrity and impartiality of the 

judiciary).

50 TEX. PENAL CODE § 36.04 (“A person commits an offense if he privately addresses 

a[n]...argument, or other communication to any public servant who exercises or will exercise 

official discretion in an adjudicatory proceeding with an intent to influence the outcome of the 

proceeding on the basis of considerations other than those authorized by law”); see also 

United States Gov’t. v. Marks, 949 S.W.2d 320, 325 (Tex. 1997) (“we note that the law in 

this State, as in most jurisdictions, looks upon ex parte proceedings with extreme disfavor.”). 

However, this observation should not be taken to suggest that Section 36.04 is applicable to 

the circumstances in this case.

51 See, e.g., TEX. CODE CRIM. PROC. arts. 18A.055(c) (Application for Interception Order); 

18A.102 (Judicial Determinations Required for Issuance of Interception Order); 18A.355 
City of Lubbock — 24

ex parte proceeding related to a criminal defendant’s discovery request.

To the extent that the Real Party in Interest argues that a trial court’s 

inherent authority can provide express authorization to proceed ex 

parte, we reject it. To do otherwise would render meaningless the 

limitation placed upon trial courts regarding ex parte communications. 

Ake and Its Progeny Do Not Provide Authority for The 

Trial Court’s Ex Parte Hearing or Order

In Ake v. Oklahoma, the Supreme Court held that due process 

entitles an indigent defendant to the appointment of a psychiatrist to 

assist in his defense when he has made a preliminary showing that 

sanity at the time of the offense was likely to be a significant factor at 

trial.52 The Supreme Court reasoned that the due process guarantee of 

fundamental fairness mandated that a defendant could not be denied 

the opportunity to meaningfully participate in a judicial proceeding in 

which his liberty is at stake simply because he is indigent.53 The

Supreme Court noted that the basic tools of an adequate defense must 

be provided to indigent defendants to implement the principle that 

(Notice and Disclosure of Interception Application, Interception Order, and Intercepted 

Communications). Likewise, the Family Code, Chapter 83 provides for temporary ex parte 

orders for protection. TEX. FAM. CODE. ANN. § 83.001 (stating requirements for issuing 

temporary ex parte protective order).

52 Ake, 470 U.S. at 83.

53 Id. at 76.
City of Lubbock — 25

indigent defendants have an adequate opportunity to present their 

claims fairly within the adversarial system.54 Ultimately, the Supreme 

Court held in Ake that when a defendant demonstrates to the trial judge 

that his sanity at the time of the offense is likely to be a significant factor 

at trial, the State must at a minimum assure the defendant access to a 

competent psychiatrist to assist in the evaluation, preparation, and 

presentation of the defense.55

Notably, Ake makes only a single reference to the required 

threshold showing to justify the ex parte appointment of a defense 

expert.56 The focus of the case was the appointment of experts, not ex 

parte proceedings concerning pre-trial discovery. Unlike Ake, this case 

does not involve a request for expert assistance, nor does it involve the

due process concerns at issue in Ake, namely providing indigent 

defendant’s meaningful access to justice.57

54 Id. at 77.

55 Id. at 83. 

56 Id. at 82-83 (“When the defendant is able to make an ex parte threshold showing to the 

trial court that his sanity is likely to be a significant factor in his defense, the need for the 

assistance of a psychiatrist is readily apparent.”); Williams, 958 S.W.2d at 192 (“While the 

Supreme Court’s suggestion that the threshold showing should be made ex parte is dicta, it 

is consistent with the due process principles upon which Ake rests). 

57 Id. at 85.
City of Lubbock — 26

In Williams v. State, this Court specifically held that an indigent 

defendant is entitled, upon proper request, to make his Ake motion for 

expert assistance ex parte.58 The defendant in Williams filed a pretrial 

“Motion for Leave to File Motion for Expert Assistance of a Psychiatrist 

Ex Parte.”59 The trial court compelled the defendant, over objection, to 

provide a copy of his motion and its supporting affidavit from a 

psychotherapist to the State.60 We concluded in Williams that the trial 

court erred in overruling the defense’s request to present his Ake motion

for the assistance of an expert ex parte.61 We reasoned that if the

motion and hearing were not ex parte, the defendant would be forced 

to choose between foregoing the appointment of an expert, to which he 

is constitutionally entitled to upon a proper showing, or disclosing to the 

State details of his defensive theories.62 We concluded this would be 

58 Williams, 958 S.W.2d at 194 (holding that the disclosure of Ake information prior to trial 

did not harm the defendant but sustaining the point of error as to the punishment phase of 

the trial during which the defense’s expert testified). 

59 Id. at 191.

60 Id. at 192. It is worth nothing that, to the extent the Real Party in Interest seeks to make 

a good faith argument for an extension of the law to create authority for ex parte discovery 

proceedings, he could have proceeded as the defendant did in Williams. In Williams, the 

defendant filed a motion for leave to file his ex parte motion thereby preserving the issue for 

appellate review. Though he provided notice to the State of the desire for an ex parte hearing, 

he did not reveal any underlying support for the request for an expert until the motion was 

denied by the trial court. Id. at 191-92.

61 Id. at 194

62 Id. at 193.
City of Lubbock — 27

contrary to Ake’s concern that an indigent defendant (who can show he 

is entitled to an expert) have meaningful access to justice and would 

undermine the work-product doctrine.63 Because appointment of an 

expert pursuant to Ake requires a preliminary showing to support the 

request, defendants are entitled to make that showing ex parte so that 

they may access the due process right to an expert upon satisfying the 

threshold showing without disclosing defensive theories or confidential 

information.64

Neither Ake nor Williams has been extended beyond the context

of expert assistance and appointment. For example, in Rey v. State, 

which was relied upon by the court of appeals, this Court determined 

that while Ake itself was limited to the issue of insanity, it is not limited 

to psychiatric experts but rather could apply to the appointment of a 

forensic pathologist.65 Although we acknowledged Ake extends beyond 

63 Id. (“We decline to hold that in order for an indigent defendant to avoid himself of one of 

the “basic tools of an adequate defense,” he may be compelled to disclose defensive theories 

to the prosecution”).

64 See Ex parte Jimenez, 364 S.W.3d 866, 881-82 (Tex. Crim. App. 2012) (“Before an indigent 

defendant is entitled to appointment and payment by the State for expert assistance, he must 

make a pretrial “preliminary showing” that is based upon more “than undeveloped assertions 

that the requested assistance would be beneficial.” Thus, in Texas, an indigent defendant will 

not be entitled to funding for experts absent adequate factual support in the written motion 

that he presents to the trial judge.”).

65 Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995) (“We hold only that the 

appointment of a pathologist is not per se excluded from the confines of Ake); see also Taylor 

v. State, 939 S.W.2d 148, 152 (Tex. Crim. App. 1996) (reasoning that the tenets of Ake 

could, in principle, require the appointment of a DNA expert to assist the defense); Griffith v. 
City of Lubbock — 28

the appointment of psychiatric experts, we maintained that the 

necessity of appointment under Ake depends upon whether the 

defendant has satisfied the threshold showing.66 And even with that 

slight extension of Ake, our holding in Rey still remained contextually 

bound to the issue of expert assistance.

This Court cannot find a single example, nor has the Real Party in 

Interest pointed to one, from the United States Supreme Court or this 

Court interpreting Ake or Williams to authorize ex parte discovery 

proceedings.67 Neither Ake nor Williams purports to apply beyond the 

State, 983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (“it is now without question that Ake 

requires the appointment of an expert regardless of his field of expertise” (citing Rey, 897

S.W.2d at 338). 

66 Rey, 897 S.W.2d at 338. As an aside, we have also limited the scope of Ake as it relates 

to the appointment of experts. For example, in Rosales v. State, this Court disagreed with a 

defendant’s contention that Ake supported his motion to accompany his trial counsel to the 

crime scene because Ake concerns when a trial court is constitutionally required to appoint 

experts to assist the defense. Rosales v. State, 4 S.W.3d 228, 232 (Tex. Crim. App. 1999); 

Cf. McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) (holding indigent defendant 

entitled to the appointment of investigator/chemist to inspect cocaine pursuant to Ake); see 

also Clark v. State, No. 09-99-341-CR, 2000 WL 1160470 at *1 (Tex. App.—Beaumont Aug. 

16, 2000, pet. ref’d) (per curiam) (not designated for publication) (concluding Ake does not 

apply to motion to interview State’s witness because it “concerns the due process right to 

access to an expert to aid in the defendant and does not create a general right to discovery.”) 

(citing Rosales, 4 S.W.3d at 232). In another instructive example, we concluded a trial court 

properly refused a request, pursuant to Ake, for a jury consultant concluding that a jury 

consultant is not a “basic” tool of the defense because jury selection is part of an “attorney’s 

stock-in-trade.” Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999) (“Although a 

jury-selection expert’s assistance would no doubt be helpful in nearly every case, such 

assistance is a luxury, not a necessity.”). These examples show that Ake is not as elastic as 

the Real Party in Interest suggests. 

67 From the United States Supreme Court’s citations to Ake: Kahler v. Kansas, 140 S.Ct. 1021, 

1028 (2020) (holding due process does not require states to adopt an insanity test that turns 

on a defendant’s ability to recognize that his crimes are morally wrong and citing Ake for its 

recognition that “uncertainties about the human mind loom large.”); McWilliams v. Dunn, 137 

S.Ct. 1790, 1801 (2017) (holding the state failed to meet obligation under Ake to provide 
City of Lubbock — 29

defendant with access to a mental health expert to assist the defense); United States v. Ruiz, 

536 U.S. 622, 631 (2002) (noting Ake’s due process considerations (1) the nature of the 

private interest at stake (2) the value of the additional safeguard (3) the requirement’s impact 

on the government and concluding these factors argue against the “right” to disclosure of 

impeachment information prior to entering a plea agreement); Kansas v. Crane, 534 U.S. 

407, 413 (2002) (citing Ake only for its recognition that psychiatry is not an “exact science” 

and holding that the constitution does not allow civil commitment without any lack of control 

determination); Kansas v. Hendricks, 521 U.S. 346, 359 (1997) (finding state civil 

commitment act satisfies “substantive” due process requirements and citing Ake only for the 

proposition that “psychiatrists disagree widely and frequently on what constitutes mental 

illness”); Tuggle v. Netherland, 516 U.S. 10, 12-14 (1995) (Ake error in failing to provide 

indigent capital defendant the assistance of an independent psychiatrist is not necessarily 

excused by the existence of valid aggravated factor and finding that the Ake error prevented 

the petitioner from developing his own psychiatric evidence to rebut the State’s and enhance 

his mitigation defense); Simmons v. South Carolina, 512 U.S. 154, 165 (1994) (holding trial 

court’s refusal to instruct jury that alternative sentence of life imprisonment carried with it no 

possibility of parole violated due process and citing Ake’s holding regarding the appointment 

of an expert as an example of fundamental due process requirement); Medina v. California, 

505 U.S. 437, 444-45 (1992) (holding that statute requiring party asserting incompetency 

have the burden of proving incompetency does not violate due process but declining to apply 

the due process framework relied upon in Ake); Smith v. Murray, 477 U.S. 527, 536 (1986) 

(holding that petitioner’s complaint that psychiatrist’s testimony violated his privilege against 

self-incrimination was defaulted and rejecting claim that default should be excused as novel 

because the legal basis for the complainant was available without reliance upon Ake); Caldwell 

v. Mississippi, 472 U.S. 320, 323 n.1 (1985) (finding there was no Ake violation from the trial 

court’s failure to appoint various experts because the defendant offered “little more than 

undeveloped assertions that the requested assistance would be beneficial.”) 

The United States Supreme Court has relied upon Ake outside of the context of the 

appointment or use of psychiatric experts when applying the portion of Ake that addressed 

the availability of federal habeas review, but it has never extended the holding in Ake to 

discovery requests. Foster v. Chatman, 578 U.S. 488, 497-98 (2016) (citing Ake for the 

procedural proposition that when the application of a state habeas law bar “depends on a 

federal constitutional ruling, the state-law prong of the court’s holding is not independent of 

federal law, and our jurisdiction is not precluded.”); Smith v. Texas, 550 U.S. 297, 315 (2007) 

(same); Stewart v. Smith, 536 U.S. 856, 860 (2002) (same); Stewart v. Smith, 534 U.S. 

157, 158 (2001) (same); Coleman v. Thompson, 501 U.S. 722, 741 (1991) (same); Int’l 

Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 388 (1986) (same).

From this Court’s citations to Ake: Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. 2020) 

(trial court did not abuse discretion in rejecting motion for new trial based on failure to grant 

funds for an additional punishment expert); Ehrke v. State, 459 S.W.3d 606, 614-15 (Tex. 

Crim. App. 2015) (appointment of an expert for an indigent defendant may be required in 

some circumstances as recognized in Ake but the State is not required to purchase for an 

indigent defendant all the assistance that his wealthier counterpart might buy and must make 

a preliminary showing of significant issue which the defendant did not do) (superseded on 

other grounds); Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) (defendant 

forfeited habeas review of Ake due process claim for expert assistance by failing to file a 

proper written motion/ensuring it was ruled on, noting that Williams reiterated the importance 
City of Lubbock — 30

of presenting affidavits or information to make required showing, and also did not show that 

counsel was ineffective for failing to file a written Ake request for additional funding for 

experts); Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) (pursuant to Ake, Applicant 

was entitled to competent expert assistance, which he received, but not necessarily the expert 

of his choice); Ex parte Briggs, 187 S.W.3d 458, 468-69 (Tex. Crim. App. 2005) (granting 

habeas relief based, in part, on trial counsel’s failure to request state-funded expert assistance

under Ake constituted deficient performance); Ex parte Potter, 21 S.W.3d 290, 296 (Tex. 

Crim. App. 2000) (holding due process requires a defendant be sufficiently mentally 

competent to consult with counsel in extradition proceedings and citing Ake for the proposition 

that due process requires an ability to consult with counsel as to identity and presence in the 

demanding state at the time of the alleged offense); Wright v. State, 28 S.W.3d 526, 532 

(Tex. Crim. App. 2000) (finding defendant was not denied expert assistance pursuant to Ake

and trial court did not abuse discretion by denying continuance to allow expert additional time 

to review evidence) (superseded by statute on separate grounds); Busby v. State, 990 S.W.2d 

263, 271 (Tex. Crim. App. 1999) (holding Ake did not require jury consultant to be appointed 

for an indigent defendant because that was not a “basic” tool of the defense and the trial 

court could have reasonably found the appointment of an additional drug abuse expert was 

unnecessary); Rosales v. State, 4 S.W.3d 228, 232 (Tex. Crim. App. 1999) (Ake does not 

apply to defendant’s request to be allowed to accompany attorney to the crime scene because 

"it deals with when a trial court is constitutionally required" to appoint an expert to assist the 

defense); Jackson v. State, 992 S.W.2d 469,474 (Tex. Crim. App. 1999) (defendant was not 

entitled to assistance of state-funded polygraph examiner pursuant to Ake); Griffith v. State, 

983 S.W.2d 282, 286 (Tex. Crim. App. 1998) (noting, pursuant to Ake and Williams, it is “now 

without question that Ake requires the appointment of an expert regardless of field of 

expertise” but concluding defendant did not establish deprivation of an adequate defense by 

refusal to appoint expert); Skinner v. State, 956 S.W.2d 532, 538 (Tex. Crim. App. 1997) 

(expert appointed pursuant to Ake is an agent of the defense for work-product doctrine but 

trial court’s error in requiring defendant to disclose a document prepared by the expert was 

harmless); Cantu v. State, 939 S.W.2d 627, 638-39 (Tex. Crim. App. 1997) (Ake is applicable 

to non-psychiatric experts but Applicant did not show a particularized need for the funding 

sought for an expert to conduct a jury study regarding their understanding of the special 

punishment issues); Matchett v. State, 941 S.W.2d 922, 939 (Tex. Crim. App. 1996) (same); 

Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (Appellant failed to establish 

expert assistance sought, pursuant to Ake, in selecting a jury was essential to defense by 

offering nothing but undeveloped assertions that the requested assistance would be 

beneficial); Taylor v. State, 938 S.W.2d 148, 151-53 (Tex. Crim. App. 1996) (DNA expert 

appointed at defendant’s request who provided results to all parties could not be considered 

defendant’s expert pursuant to defendant’s due process right as recognized in Ake); De Freece 

v. State, 848 S.W.2d 150, 160 (Tex. Crim. App. 1993) (trial court erred in denying request 

for appointment of psychiatrist to aid the defense pursuant to Ake); McBride v. State, 838 

S.W.2d 248, 252 (Tex. Crim. App. 1992) (holding indigent defendant entitled to appointment 

of investigator/chemist to inspect cocaine pursuant to Ake concluding that “to meaningfully 

participate in the judicial process, an indigent defendant must have the same right to 

inspection as non-indigent defendant”) (superseded by statute).

From this Court relying on Williams: Miranda v. State, 620 S.W.3d 923, 928 (Tex. Crim. App. 

2021) (citing Williams’s evidentiary holding regarding the corpus delicti rule and concluding 

the rule was satisfied); Wells v. State, 611 S.W.3d 396, 411 (Tex. Crim. App. 2020) (citing 
City of Lubbock — 31

context of the appointment of experts. This Court has recognized that 

Ake applies to the appointment of experts regardless of the area of 

expertise, upon a sufficient threshold showing of necessity, but we have 

never applied Ake beyond the scope of such appointments and without 

a similar threshold requirement.68 And while the Real Party in Interest 

seems to frame his argument as a novel issue in order to suggest 

Williams only for its proposition that when the State is the beneficiary of the error, it carries 

the burden of proving that the constitutional error was harmless beyond a reasonable doubt 

and concluding improper exclusion of entire police interview was harmless.); Ex parte Napper, 

322 S.W.3d 202, 246-47 (Tex. Crim. App. 2010) (counsel was deficient for failing to obtain a 

DNA expert noting that pursuant to Williams defendant was entitled to make a request for 

experts in an ex parte hearing but concluding defendant was not prejudiced by trial counsel’s 

failure); Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010) (citing Williams’s 

discussion of Rule 403 which applies when there exists a clear disparity between the degree 

of prejudice of the offered evidence and its probative value and concluding trial court did not 

err in admitting evidence that defendant was a Satanist); Williams v. State, 301 S.W.3d 675, 

690 n.6 (Tex. Crim. App. 2009) (citing to Williams’s in discussion of appellant’s point of error 

regarding the admission of photographs noting it was incumbent on appellant to ensure 

original or photocopies were included in the record); Young v. State, 283 S.W.3d 854, 875 

n.59 (Tex. Crim. App. 2009) (citing Williams’s discussion of Rule 403 and the admissibility of 

photographs and concluding photograph was admissible as was extraneous offense evidence); 

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (citing Williams’s evidentiary 

holdings regarding the admission of a photograph); Shuffield v. State, 189 S.W.3d 782, 786 

nn.13-14 (Tex. Crim. App. 2006) (same); Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. 

App. 2004) (same); Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005) (same); 

Rocha v. State, 16 S.W.3d 1, 4-5 (Tex. Crim. App. 2000) (citing Williams’s evidentiary holding 

regarding corpus delicti). We have never extended or otherwise applied Williams’s approval 

of ex parte hearings on the appointment of defense experts to the context of criminal 

discovery.

68 See Griffith, 983 S.W.2d at 286 (noting, pursuant to Ake and Williams, it is “without 

question that Ake requires the appointment of expert regardless of field of expertise”); Cf. 

Rosales, 4 S.W.3d at 232 (Ake does not apply to request to accompany counsel to crime scene 

because Ake “deals with when a trial court is constitutionally required” to appoint a defense 

expert). 
City of Lubbock — 32

mandamus relief is inappropriate, the requirement that ex parte

proceedings must be expressly authorized undermines that contention. 

Further, the rationale justifying the ex parte proceedings in Ake 

and Williams does not translate to a general request for discovery. To 

get the assistance of a defense expert, a criminal defendant has no other 

option but to seek an order from the trial court. And to secure 

appointment of a defensive expert from the trial court, a criminal 

defendant must make a showing that he is entitled to expert assistance. 

The need for this showing necessarily places the defendant in a Catch22 to either reveal defensive strategy and privileged information to 

obtain expert assistance or keep that information confidential by 

foregoing expert assistance. 

In contrast, the United States Supreme Court has specifically held

that the federal constitution does not contain a general right to 

discovery.69 Moreover, request for statutory discovery in Texas, such 

as the one at issue, do not require the type of showing necessary under

Ake or Williams. In its amended motion to the trial court, the Real Party 

in Interest conceded it was only seeking material relevant under 

69 See, e.g., Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general 

constitutional right to discovery in a criminal case, and Brady did not create one[.]”); See 

also, Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980), abrogated on other 

grounds by Ehrke v. State, 459 S.W.3d 606 (Tex. Crim. App. 2015).
City of Lubbock — 33

Brady,70 Article 39.14, and Watkins,71 none of which require the type of 

preliminary showing at issue in Ake and Williams. General discovery 

requests do not place a defendant in the same Catch-22 as a request 

for a defense expert does when a criminal defendant need not even 

make a showing of “good cause” to obtain discovery.72 

While we acknowledge that the Real party in Interest is correct 

that ex parte hearings are authorized for the appointment of experts 

despite the lack of statutory authorization, this overlooks that there 

must still be some express authorization for ex parte proceedings. All

Ake and Williams provided was express authority for ex parte hearings

for the appointment of experts. Neither provides authority for ex parte 

hearings like the one at issue in this case.73 As discussed above, ex 

parte communications are disfavored and require express 

authorization.74 To the extent such proceedings are “widely accepted” 

70 Brady v. Maryland, 373 U.S. 83 (1963).

71 Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021).

72 Watkins, 619 S.W.3d at 277.

73 Even the defendant in Williams did not attempt to proceed ex parte without notice to the 

prosecution. There, he moved for leave to file his motion for expert assistance ex parte and 

sought an ex parte hearing on the appointment of a defense expert after notice to the 

prosecution. Williams, 958 S.W.2d at 191-92.

74 Marks, 949 S.W.2d at 325 (“we note that the law in this State, as in most jurisdictions, 

looks upon ex parte proceedings with extreme disfavor.”).
City of Lubbock — 34

they are only widely accepted in the context of appointing defense 

experts, because such proceedings have been expressly authorized by 

Ake and Williams.75 The cases cited by the Real Party in Interest and 

relied upon by the Seventh Court of Appeals to deny mandamus relief 

do not provide express authorization for the request at hand. 

Consequently, the trial court lacked authority to enter an ex parte order 

for these records and thus, the order is void.76

The Right to Effective Assistance of Counsel, 

the Right to Present a Defense, And the Work-Product Doctrine 

Do Not Authorize Ex Parte Discovery 

The Real Party in Interest also contends that the due process right 

to present a defense and the right to effective counsel guaranteed by 

the United States and Texas Constitutions require the proceedings below 

to be ex parte.77 We disagree. The Constitution guarantees defendants 

“a meaningful opportunity to present a complete defense.”78 This right 

is rooted in the Fourteenth Amendment’s Due Process Clause and the 

75 See Williams, 958 S.W.2d at 194.

76 Ogg, 618 S.W.3d at 365 (a judge’s lack of authority to preside over a proceeding can 

invalidate the proceeding); Ex parte Seidel, 39 S.W.3d 221, 224-25 (Tex. Crim. App. 2001) 

(“The trial judge’s action was not authorized by law and was, therefore void.”).

77 U.S. CONST. amend. V & XIV; TEX. CONST. art. 1, § 10. 

78 California v. Trombetta, 467 U.S. 479, 485 (1984).
City of Lubbock — 35

Sixth Amendment’s Compulsory Process and Confrontation Clauses.79 

Accordingly, the exclusion of relevant, material, important evidence by 

application of rules that are arbitrary or disproportionate to their 

purpose may offend the Constitution.80 However, this case does not 

turn on the ability of the defendant to present evidence or the exclusion 

of otherwise relevant evidence. Rather, it involves the ability to seek 

the production of documents from a third-party ex parte. 

There is no support for the contention that the right to present a 

defense expressly authorizes ex parte communications and proceedings 

regarding discovery. The Real Party in Interest argues that absent the 

ability to make the request for records ex parte, his right to present a 

defense will be impeded because defense counsel will have to choose 

between disclosing confidential information and developing a defensive 

theory. As discussed above, a discovery request does not place the 

defendant in the same dilemma as a defendant seeking expert 

assistance, particularly because no threshold showing is required to 

entitle a defendant to statutory discovery.

79 Crane v. Kentucky, 476 U.S. 683, 690 (1986).

80 Potier v. State, 68 S.W.3d 657, 662 (Tex. Crim. App. 2002).
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Indeed, the United States Supreme Court has held that states can 

require, as part of a robust reciprocal discovery system, that criminal 

defendants provide notice to the State of an intent to raise an alibi 

defense.81 As the United States Supreme Court observed, “[t]he 

adversary system of trial is hardly an end in itself; it is not yet a poker 

game in which players enjoy an absolute right to always conceal their 

cards until played.” 82 If forcing a defendant to reveal general strategy 

such as the intent to raise an alibi defense does not violate the 

constitution, neither does filing a general discovery request. 

The Real Party in Interest does not fully explain how ex parte 

discovery proceedings are necessary to preserve his right to effective 

assistance of counsel. But to the extent this argument is premised upon 

the same argument that the discovery request itself would improperly 

reveal defensive strategy, we reject it for the same reasons discussed 

above. We acknowledge that the Texas and United States Constitutions 

guarantee criminal defendants the effective assistance of counsel.83 

And we agree with the Real Party in Interest that defense counsel has a 

81 See, e.g., Williams v. Florida, 399 U.S. 78, 86 (1970).

82 Id.

83 U.S. CONST. amend. VI & XIV; TEX. CONST. art. 1, § 10. 
City of Lubbock — 37

duty to conduct a reasonable independent investigation into the facts in 

the case.84 But the right to effective assistance of counsel does not 

expressly authorize ex parte proceedings regarding discovery.

Neither does the work product doctrine. The work-product 

doctrine is premised on the notion that an attorney should not be 

compelled to disclose his or her mental processes and is intended to 

protect, and to act as a limitation upon, pretrial discovery of a lawyer’s 

strategies, legal theories, and mental impressions.85 The doctrine 

protects the production of materials that set out an attorney’s litigation 

strategy or opinions.86 There is no authority for the proposition that a 

discovery request itself, which by its very nature is disclosed to an entity 

other than the defense team, constitutes work product. Indeed, under

the Real Party in Interest’s work-product argument, any request for 

discovery would become the subject of an ex parte proceeding under 

the theory that the request alone divulges investigative strategy. 

Taking this argument to its logical conclusion, almost any motion filed 

84 McFarland v. State, 928 S.W. 2d 482, 501 (Tex. Crim. App. 1996).

85 Pope v. State, 207 S.W.3d 352, 364 (Tex. Crim. App. 2006) (“While the work-product 

doctrine protects the communications of parties, attorneys, and agents, the underlying factual 

information is not protected.”).

86 Id. at 365.
City of Lubbock — 38

by either party could be characterized as work product simply because 

it might carry some oblique hint at a possible strategy.

Further, the records the Real Party in Interest seeks through the 

trial court’s order in this case, cannot, by definition, be work product 

because they are not the lawyer’s strategies, legal theories, or mental 

impressions. They are facts that may or may not be divulged by or exist 

independent of the attorney or his agents, and therefore they are not 

work product.87 As with the other arguments raised by the Real Party 

in Interest, this argument ignores that there is no constitutional right to 

discovery akin to the constitutional right to the appointment of a defense 

expert upon a necessary and proper showing. Consequently, the workproduct doctrine does not expressly authorize proceeding ex parte with 

a general discovery request.

Conclusion

Ex parte communications with a trial court regarding matters 

pending before the court require express authorization. The prohibition 

against ex parte communications absent that express authorization is 

87 Id. at 358-59; In re State ex rel. Ogg, 630 S.W.3d 67, 72 (Tex. Crim. App. 2021) (Newell, 

J., concurring) (noting that the concession that documents if created by the police department 

would be discoverable suggests that the information within the documents exists independent 

of the through processes of the lawyers and centers more on the discrete facts underlying the 

case). We do not see how a request for such a document constitutes work product.
City of Lubbock — 39

clear and indisputable. There is no express authorization for ex parte 

proceedings like the one at issue in this case. Nothing expressly 

authorized the trial court’s ex parte order to produce documents, and 

the resulting order is void. We conditionally grant Relator’s petition for 

a writ of mandamus. The writ of mandamus will issue only in the event 

that the court of appeals fails to comply with this opinion.

Filed: February 8, 2023

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