In Re City of Lubbock

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 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 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. Oklahoma[2] and Williams v. State[3] 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. 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 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 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, 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, 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. 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. 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, 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 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 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 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 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 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 third- party 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 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 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] 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 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 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] 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 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 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 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 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] 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 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 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 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 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 Catch- 22 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 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” 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 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. 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 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 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 work- product 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 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 Publish