SE Texas Record

Tuesday, July 23, 2019

Paxton addresses legal disclosure obligations in question sent by Tarrant County attorney


By Mary Ann Magnell | Oct 1, 2018

AUSTIN – Texas Attorney General Ken Paxton responded on Sept. 24 to a request by Tarrant County’s Criminal District Attorney Sharen Wilson to clarify the legal disclosure obligations of her office under article 39.14 of the Code of Criminal Procedure.

“The duty of disclosure in article 39.14, by its terms, devolves upon ‘the State,’ regardless of internal division affiliation,” said Paxton in his letter, in which he pointed to the 1963 U.S. Supreme Court decision of Brady v. Maryland as “instructive.” 

He noted the collective umbrella of the “State” not only included prosecutors, but “other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case.” He noted that "under Brady, a 'prosecutor’s office is an entity' and information the office possesses 'must be attributed' to the office as a whole."

Additionally, officials “must not only disclose information personally known to them but also have ‘a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’” 

The Attorney General noted that subarticle 39.14(h) contained “no exception" for privileged items.

“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 requirements of subarticle 39.14(h) must be disclosed to the defendant, notwithstanding the attorney-client or other evidentiary privilege.”

In regards to the disclosures under the section 261.201 of the Family Code, Paxton said that information related to suspected child abuse or neglect in parental termination proceedings is confidential, yet a court is permitted to disclose confidential information “under section 261.201” if the court determines that the information is "essential to the administration of justice."

This duty of disclosure, however, “would not be triggered except pursuant to court order obtained under subsection 261.201 (b) or (c).”

Wilson noted three specific scenarios in her March 14-dated letter that involved her office’s civil representation. These scenarios included individuals seeking protective orders under section 81.007 of the Family Code, parental termination proceedings brought under section 161.001 of the Family Code by the Department of Family and Protective Services, as well as civil lawsuits brought by former employees against county officials.

Wilson expressed concern that the “same set of facts underlying the civil representation can later form the basis for a criminal complaint and prosecution” by her office. Further, she noted that the civil representation may involve information protected by the attorney-client privilege or made confidential under state and questioned whether the information would be subject to disclosure under article 39.14.

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