Reciprocal Discovery

Two members emailed me this week and said that a prosecutor on one of their cases claims that Tex. Gov. Code section 21.001 allows a judge to order reciprocal discovery. I have never heard of this, and there is no support for this in the language statute or in any cases. 21.001 merely provides [(a) A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction . . . and (b) A court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done]. 21.001 does not allow court to overrule an article of the Tex. Penal Code, the Tex. Code Crim. Proc., or a holding of the TCCA or a court of appeals. If there is a provision under the Tex. Penal Code, the Tex. Code Crim. Proc., or a holding of the TCCA or a court of appeals, that controls over the Tex. Gov. Code. Even when a rule of evidence conflicts with the Tex. Code Crim. Proc., the Tex. Code Crim. Proc. controls. See Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999).

The only discovery from a defendant allowed in Texas criminal cases is under Tex. Code Crim. Proc. Art. 39.14(b), which allows limited reciprocal discovery of the opposing side's potential expert witnesses. See Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). There is also a limited right to discovery against nonparties (not against defendants) for the state through its subpoena power and witness depositions under Tex. Code Crim. Proc. Art. 39.02 (witness depositions for good cause) and for the depositions of elderly or disabled persons under Tex. Code Crim. Proc. Art. 39.025. Otherwise, the state has no right of discovery from the defendant. See Thornton v. State, 37 S.W.3d 490, 493 (Tex. App. Texarkana 2000) (There is no statute authorizing the trial court to grant the state pretrial discovery from the defendant), Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993) (this case dealt with only the issue of the production of a recording that a defense-investigator made of a witness, and the court did not allow it because it is protected work-product). There is no statute or rule in Texas comparable to Fed. Rule Crim. Proc. 16(b).

Anybody knows of a different case or statute, please chime in.

Michael Mowla