NEWELL, J., delivered the opinion of the Court in which KELLER, P.J., HERVEY, RICHARDSON, YEARY and WALKER, JJ., joined. SLAUGHTER, J., filed a concurring opinion. KEEL and MCCLURE, JJ., concurred. The Office of Capital and Forensic Writs sought and received two sealed ex parte orders from the 259th District Court of Jones County on behalf of Real Party in Interest, Dillion Compton. One order compels the University of Texas Medical Branch-Galveston, Relator, to conduct brain imaging on the Real Party in Interest and directs the Texas Department of Criminal Justice to arrange transportation for that brain imaging. The other order, which is no longer at issue, compelled TDCJ to provide certain confidential records to OCFW.[1] OCFW sought the orders pursuant to its post-conviction investigation into the Real Party in Interest’s capital murder conviction and sentence. UTMB and TDCJ challenged the ex parte orders by filing a motion to set aside the discovery orders in the trial court. After initially granting the motion to set aside the discovery orders and then holding a hearing, the trial court ultimately denied the motion to set aside the discovery orders and entered an order reinstating the original ex parte orders. Relator now seeks leave from this Court to file a petition for a writ of mandamus and requests that this Court vacate the remaining ex parte order regarding the brain imaging and transportation for the brain imaging of the Real Party in Interest. Because the trial court was without authority to enter the order at issue ex parte, we grant Relator’s motion for leave to file and conditionally grant mandamus relief. We recently held that a trial court lacks authority to enter an ex parte order to a third party for the production of records pursuant to an ex parte discovery request.[2] We granted mandamus relief in that case and explained that judges are prohibited from permitting or considering ex parte communications unless expressly authorized by law.[3] There is no statutory or constitutional authorization for ex parte criminal discovery.[4] Likewise, we rejected the contention that a trial court’s inherent authority can provide express authorization to proceed ex parte noting that “[t]o do otherwise would render meaningless the limitation placed upon trial court’s regarding ex parte communications.”[5] While this case does not involve a request for records it is nevertheless analogous. The order at issue compels Relator to conduct brain imaging on the Real Party in Interest and compels TDCJ, another third party, to arrange transportation. The Real Party in Interest argues that the trial court’s order was not a discovery order and points to Article 11.071, Section 3, as support for the trial court’s authority. Article 11.071, Section 3, authorizes ex parte requests in only two instances (1) a request for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims and (2) a claim for reimbursement for expenses for habeas corpus investigation that are reasonably necessary and reasonably incurred.[6] The ex parte order at issue does not involve a request for prepayment of expenses nor a claim for reimbursement of expenses. While the Real Party in Interest’s ex parte motion cites Article 11.071, § 3, it otherwise makes no mention of expenses at all. We need not consider whether the trial court had the discretion to otherwise enter the order because we conclude that it did not have the authority to do so ex parte.[7] The only ex parte communications expressly authorized by Article 11.071 relate to the prepayment or reimbursement of expenses. We need not decide whether the trial court could have ordered the requested transportation for expert assistance had the Real Party in Interest first sought In re University of Texas Medical Branch-Galveston— 5 prepayment for the testing pursuant to Article 11.071, §3 because the Real Party in Interest did not do that in this case.[8] We grant leave to file and conditionally grant Relator’s petition for a writ of mandamus. The writ of mandamus will issue only in the event that the district court fails to comply with this opinion. Delivered: October 18, 2023 Publish
