I have some ideas on this but would like to hear your thoughts/suggestions on this:

Witness who ID'ed the Defendant in a robbery has been "sued" under civil pre-suit discovery provisions by the Defendant's mother. The Defendant's mother, joined by her son (the Defendant), are claiming a need to take a civil pre-suit deposition of the witness in my criminal case. Their anticipated civil cause of action relates to "statments made about [the Defendant]" that may be slander. The Defendant's mother is represented by the Defendant's criminal attorney. The Civil Court has not entered an order authorizing the deposition, yet!

Thoughts?

This is not directly on point, but I have received 4 questions/scenarios in the last two weeks pertaining to defense attorneys using civil discovery in an attempt to prepare for the criminal case. Whether it's a divorce proceeding or civil cause of action, more often now these attorney's are attempting to obtain police reports and officer testimony.

I have found very limited case law and the obvious answer is, of course, you can't do it because it's an attempt to circumvent criminal discovery rules, but does anyone have any specific statutes or case law to point to?

One case where this came up was U.S. Government v. Marks, 949 S.W.2d 320, 322-23 (Tex.1997). The feds got the depo delayed under what is now TEX. R. CIV P. 202.4(a).

If you want to try a novel approach (meaning I haven't researched it), you might make a run at the following in the civil court:

The criminal case (presumably) was filed first. Within that first-filed case, the veracity of the witness's statements is an issue of centralized importance, if the statements don't actually constitute one or more of your essential elements. Thus, the matter your defendant and mom want to litigate in the subsequent civil case already is under the jurisdiction of the criminal court, and would be subject to interference if the civil proceeding goes forward. Thus, arguably, the criminal court has dominant jurisdiction over the issue and the civil cause should be abated.

Besides, mom can't sue for slander of her son (she lacks standing). See Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 250 (1942). The real cause of action is malicious prosecution, which doesn't ripen until the prosecution terminates in favor of the momma's boy.

First, make sure your witness files an answer (as late in the timeframe as possible). Then, and I'm not a civil practitioner, but I would file a motion for a protective order under TRCP 192.6. Surely you, as representatives of your client, the State, are a "person affected by the discovery request", as required. This so blatantly a subterfuge that surely your judge will briefly stay the civil case until y'all can try the criminal case.

If the depo goes through, I would see if you can get involved and depose the defendant. Although he will surely take the 5th on most issues, you may be able to get some evidence surrounding the case to use against him at some point, possibly at punishment? Also, could depose mom or any other defense witnesses. What's good for the goose...

I'm curious, who's the lawyer?

Joe Black and Jennifer Truelove at the Harrison County D.A.'s office had this happen and got favorable rulings. They can be reached at 903-935-8408. Mark Taylor of Wood County (903-763-4515) had it come in in a child abuse case. The defendant tried to get a deposition of the child victim as part of the divorce case. Cindy Dillard, a family law attorney from Bedford was appointed as ad litem for the child, ran the case to the Texas Supreme Court and got the deposition stopped. She may still have a brief (817-282-6323). Good luck!

I like Scott's idea. Seems like you could
also argue that this violates Article 1 Sec 30
of the Texas Constitution (victim's rights
amendment).

Our practice is to intervene and file a motion for protective order, quashing any subpoena or deposition. There is case law supporting this approach, which has always been successful for us.

Have a defendant on the docket with a motion to adjudicate (based on new offense) and D has also been indicted for the new offense. Defendant is claiming that motion to adjudicate should be abated since the 2 cases have common issues (commission of the new offense). Any good response? Is this really different than the situation where Def. files a civil suit and we abate the civil suit? Appreciate any help.

Do not abate. Go forward on the motion to adjudicate, which can be accomplished without a jury. Then, the defendant is likely to plead on the new cases.

Ken - Thank you; that was my thinking. But what if the judge finds "not true" on the new offense allegation at the adjudication hearing? Will that bar prosecution?

We recently had a child sex abuser want to take depos of several child victims in the family law custody case just before the criminal trial and we got a discovery stay/protective order in the family court case. I have a very short trial brief on that, and Motion,if you like.

A.D.

If you lose the exact same issue on a preponderance standard you are likely collaterally estopped from trying the case. Don't lose or use another violation.

Doing a bit of thread necromancy!

I have a CPS hearing this Thursday. It is the 1st hearing after the initial advesary hearing.

Story - Father questioned by CPS investigator on why leaving children w/ Mom which was against an earlier CPS/Custody order. Child is there during interview at a local resturaunt. Dad says he has to make a call and pulls a runner leaving his car and abandoning child. CPS investigator must pick up kid as mom is currently in jail as well. Meanwhile, Police called - Dad is known drug offender. Canine hits on car and bingo drugs found.

Father's counsel (who also reps. in his criminal case) has filed subpoenas for all the police and their records from the search. BLATANT subversion of discovery. How do I go about stopping this? I read about an order of protection - how do I go about that? Anyone got a template I could work from? John?

I also don't think any of this is appropriate for the initial permanency/status hearing even if I can't protect.

Help!

Contact Doug Arnold (512-943-1234) in my office. He handles our motions to quash. He can help you out.

Just as an aside, but on the same subject. We have a pending Aggravated Sexual Assault case with three defendants. One of the defendant's attorney, out of Houston, after reviewing the case file in our office, at least twice, and prior to any formal discovery requests, etc. sent a subpoena duces tecum to the investigating officer for photos, a copy of a search warrant (which she could have gotten from the magistrate's office as well as our file)etc. The attorney said it was because she was used to having to do that to get any discovery in Harris County and seemed to be surprised that my deputy contacted me instead of contacting her first. I advised that we would provide her with any discovery and that I would file a motion to quash if necessary. I think things will be going more smoothly now, but thought it interesting that the claim was that because Harris county was so difficult to deal with that attorneys had to resort to such tactics and had no idea they weren't normal up here. Just thought it was interesting.

did FA's attorney serve a notice to subpoena records of non-party upon you? He must under 205.2 R Civ Pro.

176.6(e) deals with protective orders for abuse of discovery by subpoena. It allows any person affected by the suboena to file for the protective order. Must be done before the time runs to answer the subpoena. I only had to threaten to do this once, and it got the problem resolved. 192.6(b) is the section on the Protective Order.

The law enforcement agency may want to file their own motion for PO, or join in yours, or may have a privilege to assert.

Also, is this is scheduled solely as a Status Hearing, then look at Family Code 263.202(b) that specifically says the status hearing is "limited to matters related to the contents and execution of the service plan filed with the court". If your county does the status/initial permanency at same time, still outside of purpose of a review hearing. If can't get protective order, then it will be up to your judge to not allow them to re-argue the adversary hearing, or argue their criminal case, after you express your objections.

Generally when we get a subpoena for records in which thre is is criminal case or potential criminal case involved, we contact the relevant DA, CDA, or CA and ask if they wish to file a motion for protective order to keep the records from disclosure. In addition to subpoenas in related civil cases, we also see subpoenas in the criminal case. When I was in ALR eons ago, we started getting subpoenas for records which were not in the ALR file such as witness statements, etc. Normally officers did not include this stuff with their ALR paperwork, but as you know by now, DWI defense attorneys tend to use ALR as a discovery tool, at least in certain areas of the State.

Janette Ansolabehere

Just a quick line to thank everyone for their help and suggestions. The subpoena's were quashed and discovery has been halted temporarily. The court hinted that should the discovery be granted I would have the full civil discovery process available to me as well.

So, Mr. Defendant, how about a deposition?