1 - Voice For The Defense Online

Editor's Cornerbership on all issues affecting our profes- by alegislative committee, or, maybe, notsion. Now, for the issues at hand. ...at all. I beheve lawyers are well-suited toI believe (and, you*fl note, is mytend their own business, and should do so,opinion) the membership of the state B~~ I believe our integrated bar system shouldhas been lulled crnaybe bullied) into be continued, and bemadeto workbetter.solidating problems facing the B~~ into But, only YOU can cause that to happenaall bee,, made by being interested, and involved, inI've always heard that anything worth completely aware of thefactthat ourlead- what's going On. A On Oursaying bears repeating-and anything enhip of the past few years has built a past "interest" in what our State Bar isworth hearing bears repeating twice. On multi.maon-dollar edifice, with quep domg is graphically portrayed by the lowat least two occasions I've used this fo tioned authority to do so, and \ylthout vote returns on past referendums. That arum to broach the issues confronting our funds to pay for it. Some have even return of 51% of total membership is suf-State Bar. Since the subject is worth both laughed at the predicament they put fielent to constitute a quorum is a menusayingand hearing, I'll take the hberty of themselves in-hellfire, folks, it's us and merit to our Professiona1"waltzin' it 'round" again. That we've it's our predicament. We need to stop I believe our is worth saving.1behadno response or comment from our smirking at thelr error (if error it were) kve it can serve us and the public. Imembers as a result of prior diatribes and start pushing for our solutions. don't believe a $100 or so one-time assessleadsme to fear apathy may be afoot I've worked actively in State Bar acti- ment is going strain member beamongTCDLA ranks, insofar as this issue vities for may years. I know the great yond reason. And, I don't believe weis concerned. If we canaccomplish nothing potential for good that exists in our State shdnld cut our nose off to spite our face.else with this publication, I hope we can, Bar as presently organized. I fear a situawithit, alleviate apathy among our mem- tion whichleavesaw businessto be tended Clif HolmesT. EXECUTIVE DIRECTOR'S TCDLA? It was astounding to me that more people in prison for longer pefiods.the plight of a poor animal should receive The only major step that was madeREPORTnational attention when the plight of many last session to change the criminal justiceAs I write this report spring holidays of the humans of this country and state system so that it will help more peopleare just ending and the celebration of are ignored. Harvey's story is reported in was the creation of the Adult ProbationEaster has just been completed. One story the same paper that includes the Gover- Commission, yet the legislature in itsthat was given national press coverage in- nor's call for a new crime package in the infinite wisdom dld not fully fund thetrigued me very much-that was the story next legislature, a report that while the Commission after its creation.of "Harvey the Attack Rabbit." Across total crime index dropped 4%, the rate We seem, as a society, to have an unthenation newspapers and television gave of violent crime increased, and a notice derstanding of why a rabbit does thingsus lengthy stories about Harvey. that the State has approved the purchase that a "normal" rabbit should not do andHarvey it seems was an Easter present, of $8,000,000. worth of land for a new we spend a great deal of bme and moneya number of years ago, to a family that prison. We all worry about violent crime, to solve those problems. Yet even thoughdid nofhing but torture and torment the and we would prefer not to be victims, we know that long prison terms and morepoor beast. Harvey was rescued by the but it should be obvims to all of us that prisons do Mtle to stop people's "abnor-SPCA and gmen a home with all that a longer prison terns and larger prisons are mal" actions we still work in that direcrabbitcould want. But Harvey attacked not going to decrease the violent crime tion and ignore those areas of housing,any person or other rabbit that came near rate. jobs and education that can make a realhim. On bad days Harvey would attack In the last session the Governor's difference.even his water and food dish. The SPCA, cjme package, as explained to the people, Harvey was not born mean, he wasdeciding to make the most of a bad tlnng, would help stem the tide of violent crime created by his environment. While thetook Harvey on tours of schoolsandmade by increasing terms in prison and deny- analogy loses something, we sbll seemeducational films of him, to show both ing probation for many violent crimes. uncon~emed with the factors that createchildren and adults what bad treatment Yon as individuals involved in the crimi- human criminals. And where Harvey iscan do to make animals mean and unen- nal justice system realue that very few, helped along toward "rehabilitation," wejoyable to have around. Harvey ads and probably less than 1% of the defendants put ouf "abnormal" members m cagesshows raised $8,000 for the SPCA in charged with violent mime, got probation I& St W~arvey's, with little or no contwoyears. under the prior qtatutes, But politicall? f? fog *habilitation or the effect of theWhat does Harvey have to do with looks good to talk in tern af pdtW ca&&1978/VOICE for the Defense

Presidents ReportHonorable Richard M. CountissJudge, 84th Judicial DistrictCounty CourthouseP.O. Box 355w Spearman, Texas 79081In lieu of a President's Report, Presi- Dear Judge Countiss:dent Colvin requested that his letter to It is my sincere pleasure, in behalf ofone of our state's District Judges be re- our Assodation, to commend you on yourprinted. President Colvin also requests that admirable performance on the Districtyou send to him any suggestions you have bench. While I have not had the pleasure offor judges in your area who exhibit the appearing in your court, numerous attorqualitiesthat all lawyers desire. neys have brought to our attention that .you encanpass that judicial integrity, patience,sensitivity, and courage, the essentialingredients of a great judge. Thefact that the. last lawyer famably bringingyou to my attention had recently lost acase in your court adds even more credence lawyer alike, sa&fied the demands of justosuch concQsion This represents added tice under the kw. With the distinguishedemphasis to the proposition that what all leadership that you provide we have thecompetent lawyers on both sides of the cement necessary to please our noblelady.docket truly appreciate and seek is evenhandedjustice dispensed in a manner al-Respectfully youn,lowing us to leave the courtroom knowingEmmett Colvin,that in public view we have all, judge andPresident, TCDLANews G NotesIllinois 60611. The programs themelves replaced Don Busby who has resigned towill be available on or about May 1st. enter private practice.CThe Hon. Barbara G. Culver has beenappointed by Gov. Briscoe to replaceJudge Joseph H. Mims of the 318th Ju-SHORT COURSES FOR DEFENSE NEW REPRESENTATIVES ANDac, is,,, in wand.LAWYERS IN CRIMINAL CASESSENATORAND FQR PROSECUTING Mr. Bill Halev of Center was elected to TEXAS PROSECUTOR'S CO-ATTORNEYSreplace ~epresekative Roy Blake who reORDINATING COUNCIL NAMEDPursuant to the directives of Senate(SUMMER, 1978)Bill 1113, the following individuals havebeen appointed to the Prosecutor's CoordinatingCouncil:Short Courses for Defense Lawyersand for Prosecuting Attorneys will beconducted again this year by NorthwesternUniversity School of Law under thedirection of Professor Emeritus Fred E.Inbau and Professor James B. Haddad.The course for Defense Lawyers willbe held from Tune 26th through June 30th;the one for Prosecutors will be held fromJuly 31st through August 4th.A substantial portion of each coursewill deal with "Trial Techniques." Othersubjects on the program will include -Recent Developments in the Law of Arrest,Search and Seizure"; "Interrogations andConfessions"; "Discove~y Rights and Limitations";"Eye-Witness IdentificationProblems"; "Scientific Crime Detectionand Scientific Proof"; and many othermatters of importmce to criminal lawpractitioners.The registration fee for each courseis $250. Further information may be ob-hind by writing to Prafessor Fr~d E.Inbau, Northwestern Unkrsity School ofLaw, 357 East Chicago Avenue, Chicago,signed to run for, and was elected to fill,Senator Don Adams's post. Mr. JerryClark of Buna was elected to fa the unexpiredterm of Herman Adam, Jr. and&. W. Tip Hall, Jr. was elected to replaceWalt Parker.NEW REPRESENTATIVES ANDSENATORMr. Bil Haley of Centet was elected toreplace Representative Roy Blake who resigned to IUII for, and was elected to fill,Senator Don Adams's post. ME. JerryClark of Buna was elected to fa the unexpiredterm of Herman Adam, Jr. andMr. W. Tip Hall, Jr. was elected to replaceWalt Parker.NEW JUDGES ' The Hon. Brvan Bradbnrv of Abileuehas been name; to replace-~udge EscoWalter as Associate Justice of the Courtof Civil Appeals of the Eleventh SupremeJudicial District.Mr. C. W. (Bud) Duncan, Jr. of Killeenhas been appointed Jvdge of the 27thJudicial District, consisting of Bell, Lampasasand Mills Counties. Judge DuncanMr. Howard C. Derrick EldoradoMr. William C. Donnell, Sr. MarathonMr. Joe L. SchottCasts ovilleMr. Richard HatchSintonMr. George Rodriguez El PasoMr. Tim Eyssen,District Attorney Wichita FallsMr. Di~k BrainerdCounty AttorneyVegaMr. Tom HannaCriminal District Attorney Beaumont***NOTICE***ANNOUNCEMENT OFANNUAL MEETINGTCDLA's annual meeting will beheld at the Ft. Worth ConventionCenter on Thursday, June 29131,at 10:OO a.m.1VOICE for the Defeuse/April1978

IMINUTES OF BOARD OF DIWECTORS MEETING* As dbcted b~ Board of Directors' resolntion passed at the February 11, 1978 meetinn.-. the minutes of that and & futute meetinEs - am to be uub&hed in the Vaice.TEXAS CRIMINAI. DEFENSE LAWYERS ASSOCIATIONa. BOARD OP DIRECTORS MhETINCfP =FEBRUARY 11, I97811 :05 a.m. Preddernt C6Ivin called the meeW to ordw Cindy Waltea caned therolL It was e~tabIirhed that a 4um~m was present.PRESENT: Emqett Colvhvin George Luquette* ,Vincent Periai* Robert dons,Charles McDonald, Jack Bw&, David Birea, Clifford Brown, DavidCarlmk, Waggoapr Cart, AIlW Cazier+ Sam Houston Clinton, W. V.~w*m, Buck Filert Kmy FitzGerdg, Gerry Coldstein, Olirer Heanl,Jan Hemphill, CliE HoMea, Ed hballett, Stiutley To& Tom 5We,Ri+nl Thornton, Doug "Tinker, Stmltfy Weiqherg, Elmo Will&,Rodgw Ziriyllerman, Rodd Zipp, James Babo, Many Cowiant,Mehael mbson, R&ee Seas, Michael Tbmas, Phil Burlesan andWeldon Bol~onxb.EXCUSED Louis Dugar, Bootr; &ueg,e~, Bme DeBullet, kymand Caballero andABSENES: B u d Busby13NEXCU$ED IIam Nass. C!hrles BuEh Dick D&&. Art La&m. J~hn Mont-ABSENCES: ford: Pat &st, Upleg Rbenberry, Pete ~orres, ~bel ~osmo, GarlandWier, Francis Willias, Abtodo Cantu, Chmt Hmdeway, EeUyIreland, Albert Pena and James WeddXng.OTHERS Steve Capeb, CMy Waltqs* John Basfou, CDLP Project DDwtor,PmSENT: and Richard Andwon, TCDLA Member fmn DamThe motion was made by Weldon HOicom7, that the reading of themiautes oT the Deeembw 66th meeting be d'ispemd with and that theminet%+ he a~proved RS previously ab fted to the Board of Dim-Ms. Seconded by Clif Holmes. The 2 akh ~ariert The ininxtesstand approved.AMICUS Stcvg Ca~elle =ported that the Amicus Cariw CommStt&e hM notCURIAE mush aetmity lately and that only one casa had adBRt1y been referxedtg the ~mmittee. Steve stated tbai he wouId report on the stam ofthis ease at the. next meeting., CZE O w DMstein #ported tht TCDLA will hold a niFninaIlaw seminarin Caatmt, blesiw April 69. Gem &&ad the need fa mhnteers€0 speak and 'to supply dttm mat&. Gerry ranindedthe inmembersthat 6 hours pa day, ~kwoom timane, was necsssary to secure the taxdedllction on ttg trip.Gerry also 8iseusse.d plans for a criminal trizl seminar to be heId inAustin for Uniwmity Law School students. Gerry stated that MikeSharlot wlll amkt him in orderamminrr tW hnction and that both ofLabaratories & OfficesofWAYNE BAKER,ERlC HOLDEN& ASSOCIATESblygmph Laboratorie~ BL Officesestabl&hedto serve the legal professipnTHE REGISTRY, Sulte 2486350 LBJ FreewayDallas, Texoa'?S&OTEXAS PENAL CODETABLEOFOFFENSESAND PENALTIES(with 1977 Amendments)IAddirional cnpies may he obtltimd atS1.a~ per copy. You recewed onecopy free as a member of TCDLA.Writs the Associationoffit?e foraddition81 copies.. - VOLUNTEERS NEEDED-Tha Am-them would be on members of the Board to volqnteer as in- , C,fike Committee of TC~LA h8aPresident Calvin mprted th@ Ron Gmwn of Was is stitl workingon the jury selection seminar and that the &h&&@ k &host wmplete.The dab of the semkiar will be announced in th% neat future.Vinee Perini ann~unoed that the Criminal T d Aduow Institat~inD&as had been canceled due to a laok of support. It was stated thatthe- a oasslbilitv that the institute would be ~tternpkd again inabout 6 moljlrs.in helping with thisiI of TWLA Amicus'WVOICE for the Defense

MINUTES from p. 6periencing. (Minutes of the meeting were distributed to the Board.)Steve stated that $15,000 had been borrowed from the AuStinNationalBank in Austin to see the Association through the interim period duringwhich the Association is changing to an annual billing. The moneywas borrowed with Charles McDonald, Bob Jones and Emmett Colvinsigning as personal guarantors. The loan has allowed TCDLA to payall outstanding bills except $3,000 for the 1977 Crrm~nal Law Outlmewhich will be paid off 1/3 at a time. Steve reported that theAnnual bilhng had been completed and that money should begincoming in soon. TCDLA should recognize a change in the financeswithin approximately three months.MEMBERSHIP David Carlock stated that a membership drive will be held m SanAntonio in March and that he would he seeking assistance from Boardmembers m that area.NOMINATING Charles McDonald reported that the nominating committee met thisCOMMITTEE morning and announced the committee's decision on nominations fornew Board members and Officers.Theresults follow:PresidentGeorge LuquettePresident ElectVincent PeriniFirst Vice-PresidentHarry NassSecond Vice-President Robert JonesSecrctary-'l'rc~surerCharlcs McDonaldAssistant Secrct:lrv-'l'rcx~urc~r (;erald Goldsh,:inDIRECTORSClifford BrownRobert SalinasClif Holmes Thomas Sharpe "Anthony ConstantStanley TopekPat PriestCharles RittenbenyRaymond CaballeroGrant BardewayRussell Busby~odger'ZimmermanASSOCIATE DIRECTORSBenny HouseKeith AlanizWillis Thomas Taylor C. W. (Robbin) PearcyRichard AndersonLarry SanerCharles BurtonR. L. WhiteheadRichard HamsonJames BoboMichael GibsonMichael ThomasANNUALTRIPCindy Walters reported that the Annual Trip would take platre April6-9. 85 seats have been reserved on Airo Mexico, deparhg fromHouston, and 45 double rooms at the El Presidente Hotel in Cancunhave been blocked for our use.Gerry Goldstein discussed a problem in the Western District regardingsetting of bonds in federal cases. Gerry stated that the bonds wereastronomical and that apparently no guidelines were followed in thesetting of sxch bonds. Further discussion. The motion was made byWeldon Holcomb that Geny he authorized to draft a resolution onbehalf of the Association to present to the 5th Circuit Judicial Council.Seconded by Clif Holmes. The motion carried. President Colvinwill present the resolution to the 5th Circuit in form of a letter.CDLP Phd Burleson took this opportunity to introduce John Boston whohad been hired as the interim Project Director of the CDLP.SELECT Tom Sham reaorted that the Select Committee on Grand JuriesCOMMITTEE wouId meet in ~~ownsville February 16 and 17 and asked if the Asso-ON GRAND ciation wanted to give any input. Discussion followed. PresidentJURIES Colvin asked Tom Sharpe md Ronald Zipp to act on behalf of theAssociation.BY-LAWSANDMISCELLA-NEOUSFREEFREE1977CRIMINAL LA WOUTLINEThe 1977 CRIMINAL LAW OUTLINE, published by the National College of the State Judic~ary, 1s no%available from the TCDLA Home Offlce The outhe is a valuable and reliable gulde to the Supreme Court olthe United States decismns on thtFourth, Fifth, Sixth, and EighttAmendments of the Coast~tutlon I1you are a member of TCDLA, fdl outhis request form and return it to th~Associat~on Home Offxe for you"FREE" copyNAMEADDRESSCITYSTA TE 6 ZIP* NOTICE *The Legislative Committee of TCDLADiscussion followed concerning removal of Board members who con- will have its final meeting to formulatetinually miss meetings. It was decided that President Calvin would proposed legsIation for the next sessionwrite a letter notifying each Director and Associate Duector of the of the Legislatun on the 29th of Aprilby-laws regarding attendance requirements and stressing that the by- 1978 in Austin. If you have any suggestedlaws would be followed in the future. It was also suggested that the pieces of legislation, send them to the Asletterindude a section regarding Directors with delinquent dues. sociation office in care of the Legisfative(Cont~nued on p 22) Committee.VOICE for the DefenselApnl 1978

PROSECUTORIAL COMPULSION OFDEFENSE-HIRED EXPERT TESTIMONYAND REPORTS*David L. Botsford*".',:..... . - ......(".. .:..,.,.. . .\-,,. :...,,. .,..': ..,,*.:...... :,:'...*..,,..,...,.,I. INTRODUCTION investigations.This article focuses upon the issue of It is equally clear that defense atwhetherthe State of Texas can compel torneys are not competent to testify as todefense-hired expert witnesses to testify conversations with or the contents of rafor the State in a criminal proceeding, ports prepared by defensehired experts.and whether the State can compel disclo- In fact, the State Bar Rules [hereinaftersure of reports prepared by suchexperts.' Rules] prohibit an attorney from know-While this inquiry will necessitate a dis- ingly revealing a confidence or secret4 ofcussion of the attorney-client privilege his client exce~t when oermitted underand the "work product" doctrine, it must the Rules or when req&ed by law oralso encompass a discussion of reciprocal court order.5discovery rights by the prosecution and Moreover, while an attorney is himthedefense and the effect of compulsory self incompetent to testify as to informadiscoveryupon a defendant's rights to tion learned within the privileged reladueprocess of law and effectiveassistance tionship with his client and is, in fact,of counsel under the Sixth and Fourteenth prohibited by the Rules from disclosingAmendments.2such informahon, he is directed to2) to withhold any testimony,information, document, or thing,3) to elude legal process sum-11. BACKGROUND . . .exercise reasonable care to moning him to testify or supplyIn order to avoid undue complexitywith potential issues of a purely evidentiarynature, I shall assume that the testimonyand/or reports desired by the prosecutorrelate both to theories advancedby the urosecution in ~rovine its case-&-chief &d theories relied up& by thedefense in presenting its defensive case.In an-examination of this issue, it isfirst appropriate to address the questionof competency of witnesses to testifyin a criminal proceeding. Article 38.06of the Texas Code of Criminal Procedure[hereinafter C.C.P.] , states that all personsare competent to testify in a criminalprosecution except insane persons andcertain children.,Specifically, Article 38.10, C.C.P.,states thatAlI other persons, except thoseenumerated in Articles 38.06,38.101, and 38.11, whatevermay be the relationship betweenthe defendant and witness, arecompetent to testify, except thatan attorney at law shall not disclosea communication made tohim by his client during the existenceof that relationship, nordisclose any other fact whichcame to the knowledge of suchattorney by reason of such relationship.Since defense-hired experts fit withinnone of the above exceptions to Article38.06, C.C.P., it is clear that defensehiredexperts are competent to testify asto information obtained through theirprevent IS employees, associatesadothers whose servicesare u ed by him from disclosingor using confidences or secretsof a client, except that alawyer may reveal the informationallowed by DR4-lOl(c)through'an employee.6Still, an attorney is prohibited by theRules from suppressmg any evidence thathe or his client has a legal obligation toreveal or produce.7Thus it seems that if a trial judge enteredan order to compel a defense-huedexpert to testify, or to disclose a reportprepared thereby,s a question wouldarise as to whether a defense attorneycould refuse to comply with the order.Althoud~ an attornev has an ethical obligationto vigorousl; assert the rights ofhis client which may require him to contestthe order,9 it can be argued that anattorney who does contest the validity ofsuch an order m a criminal proceedingcomes dangerously close to violating Section36.05(a) (2&3) of the Penal Code ifthe attorney conditions his payment ofthe expert's fee on the expert's refusal tocomply with the State's attempted dis-c $ ~ Section . 36.05(a) states that:a) A person commits an offenseif, with mtent to influence thewitness, he offers, confers, oragrees to confer any benefit on awitness or prospective witness inan official proceeding or coercesa witness or prospective witnessin an officd proceeding.evidence, . ..However, if an attorney instructed hisretained expert to testify or disclose hisreports in compliance with the order andmerely sought to contest the validity ofthe order on the basis of the legal pointsraised below in section 111, his conductwould not fall within the purview of thestatute. If, on the other hand, an attorneyInstructed his expert not to testify as ordered,such conduct might be in violationof the statute. Moreover, instructions byan attornev to alter. destrov. ..or otherwisemag unavailable reports preparedby his expert would constitute a violationof Sections 37.09, [Tampering With orFabricating Physical Evidence] and 32.47,[~raudulent ~estruction, Removal, or(Continued on p. 17)* The author would like to express hisappreciation to Ms. Leslie Benitez, BriefingAttorney for Judge Brown and JudgeDavis, Texas Court of Criminal Appeals,for her assistance in the preparation ofthis article.'*David L. Botsford, J.D., SouthernMethodist University Schoolof Law, 1977.Member, State Bar of Texas. Bnefing Attorneyfor Judge Truman Roberts, TexasCourt of Cmal Appeals, 1977-78. Thisarticle should not be construed to reflectthe official or unofficial views of any ofthe Judges of the Court of Criminal Appeals.The author encourages readers tosubmit constructive critic= of this articleto him.April 1978/VOICE for the Defense

*-\Marvin 0. Teague: EditorFROM THE COURT OF CRIMINALAPPEALSJMARCH, 1978VOLUME IV. NO. 6COMMENT. TKE WEEK OF MARCH 8, 1978, WAS A VERY GOOD WEEK FOR DEFENDANTS IN TEXAS ANDTHE FIFTH CIRCUIT.EOWEVER, WHAT Dm TRE FIFTH CIRCUIT DO TO OUR HABITUAL STATUTE?IN RIIEMEI. V. ESTE!L&, ON MARCH 6, 19711, A 2WL.I

JOROR TELLING A FIB, AT WIR DIUE EXAMINATIm. UESITLTS IN SALAZAR, 1154,041, 3/8/78, Panel#1, J. W. Davis, GETTING NEW TRIAL, (Brazorie Cmnty).nms~D on trill for indecency with a child. Prqspective juror Wooley stated on hisjuror information card he had never been a complainant or witness in a cr*inaltrial. Be also stated on voir dire that he had never before been a witneas inox involved in a criminal matter. Then, after the State rested her case, Mr. Wooleycopped out and tald the trial judge that he had in fact been a witness in a cr5miaalcase 5 years prior to that time when he was a eyewitness to a sexual assaulton his daughter by a Mexlcan-American male. Wooley, of cohrse, aleo told thetrial judge he had not tald the other jurors about this, that be wouldn't and thathis pas e~perience would not influence his decision in this ease.m." "This isHeld, "We hold that the trial court erred in not granting D'strue regardless of the juror's statements, since U had been effectivelydenied an opportunity to strike the juror during vair dire examination."- - - - - - - -"D was without fault or lack of diligence end he was misled acting in goodfaith on the jurer's responses ta inquiries on this matter." "He was deprivedaf his right to peremptorily challenge the juror, which action hewould have taken if the jursr had disclosed this fact upon voir direexamination." Reversed.- EVIDENWI ENWLOI'E CASKS AW S'~II.I. COMING.^^. SY~.Yebruary, 1978, S.D.R., p. 4. CNU(E, X54.089, 3/8/78, J. T. Davis, Pilnel 41, LS(!- RKVKRSED .-..- BECAUSH -- TCT - AIH1TTY.I) - - INR) - YV1I)I;NCF --- OVEK - - OBJECTIONS ---- AN -. EVIDPNCY ---- WVEMP). - ON WI!ICcWAS CONTAINED A CONDENSBD VERSION OR TIIE STATb:'S CASE.. "A SlIOK1)UU(D RENDI'I'ION OF 'INKY.WTHX S'rA'lE'S rASE ON ONE PIECE OF PAPEK." Rwersed. (lknnge County).S-. %/18/78, vul. ,IV., NO. 5,EX PARTE JORDg, Y7,261, 3/8/78, .I. W. Davis, Panel tl, =INS RELIEF. WHEN Cr. RUI.ES TIMYCUMULATION ORDEKnlh'l"$?LY SPECIFIED 'MT SEN'l'liNCE SllALL "REClN ANI) OPKRATE FXOM ANDi\~l''W!II!YNT SKNTFNSE NOW BEING SERVED,U "HE T.D.L." WAS WIT). Writ eranted. (KcdRiver County).GOMMEW:What happened here was that D, while out on parole, cammittad anotharcrime, for which hdwas convicted. Then, while awaiting sentencing,he escaped, hut was recaptured and received another sentence which wasto he stacked on last sentence but, as noted, the T.J. did not do itright, Thus, it appears that D will now serve all of his sentencesconcurrently.D McDADE, 157.253, 3/8/78, J. Douglas, Panel 12, GETS REWBSAL WHEN KECaRD ON APPEAL DIDNOT SHOW TEAT D WAS ADMONISHk37 BY TJ AS TO W E OF PUMS-T BEFORE HIS PG WAS ACCEPTEDBY TJ. Reversed. (Ravis County).-, 1157,248, 3/8/18, J.T. Davis, Pnncl 12, GETS KIIVERSALOF REVlpTION ORDER WUVN CCAFlNlIS 1HEM WAS INSWFlCIbXT ti~~~ENCY. 'TO SUSTAlN PRUBABLEE FOR SEI\RCHELKpThis was a rather interesting Ease. Police received dispatch about a burglary inprogress and that a white van was invoLved. Police went to scene, found a whitevan parked ehort distance away with D aud Kersey standing near the van. D arrestedfor public intoxicatian ad Kersey arreeted for possession of grass. Searchof van occurred but nothing illegal found. Keys to van were returned to D who indicatedthe van belonged u, him.After everyone left the scene, mother of Kemey contacted off-duty POli~e officer,a neighbor who was sitting at home, drbking a cold beer, who was asked co and hedid go and make a more thorough search of the van. Inside a guitar case he found8 haggies of marijuana.Apparently, the basis for Kersey's mother taking the action she did was thatshe auspicfoned the van contained marijuana and was afrstd the police wanldcame back am3 blame her son..Held, Though Wilson was off-duty, nevertheless, he was srFIl a peace officer at thetime and on the occasion in question.The Court also held that "probable cause to justify the warrantless search was notshown." "The Court belw erred in averrulinp, D's timely filed motion to suppressmazijuana." Without the goollies, the State had nu ather evidence to sustain theorder of revocation of probation. Reversed. (Beaar County).C Q m ? This is one of those rases that you agree the end result Was properbut the means to get to the end is troublesome in light of the facts.The 0 may have benefited from the equaliaing doctrine: i.e., did thisevidenceequal insuff. euid. re p~ssessibn? or, did the State fail to fully exmineMrs. Kersey?April 1978IVOICE for the Defense

GOD! HOW WARRASSED A TRIAL JUDGE AND A PROSECUTOR MLlST BE AFTER READING DURROUGH,A DEATH PENALTY CASE, 657,347, 3/8/78, J. Odom, with J. Douglas concurring without opinion.En Banc. Rwersed. (Beaar County).Durraugh, u, involved a death penalty case where the State not only wentfor the hickey but got it. And what was the case reversed on?The D filed a motion far change of venue with the necessary affidavits of compurgatorsattached thereto. See Art. 31.03, C.C.P. D apparently tracked statuteto a T.And, what did the State do? NI)THING. And what was the result?REVERSED AND REMANDED FOR A NEW TRIAL. Held: "Some c~ses present close issues, but thisis not such an issue; the law here is clear, and leaves no alternative hut torwerse the conviction and to remand this capital punishment case for a new trial.""It should be clear to all familiar with our criminal justice system, and withthe statutory and case law applicable to the issue before us, that the law leavesno alternative but to reverse this capital felony conviction and remand the casefor a new trial."COMMENT:In light of the type accusation and what the State wanted to accomplish,the best I have figured out is that the trial judge and the prosecutorhad already made reservations to go to Buntsville and were simply daydreamingabout th'e day when they would go to Huntsville for theexecution. Otherwise, nothing else makes sense about the ease.BUT, NOT W WEEKS ARE GOOD ONES FOB SDME DEFENDANTS.TEE WGHES' BOYS EACB HAD THBIR DEATH PENALTY CONVICTIONS AFFIRMED.CANDERSON HUGHES #51, 827, 3/15/78, J. Douglas, EN BANC, with J. Phillips, joinedb-dissentingwith short opinion, ADEATA PENALTY CASE, AFFLRMED.(Dallas County).&st of this opinion is devoted to discussion regarding why prospectivejurors were disqualified frw serving due to the death penalty aspect ofthe case.One of the leading holdings in the case was the following:The fallowing were ruled had questions as being an improper attempt torequire the prospective jurors to commit themselves as to how theywould pass upon the credibility of possible psychiatric witnessesprior to trial."How they would feel concerning psychiatric testimony'' and "If theyheard certain psychiatric testimony, would that influence them inany way."CommwT:~t seems the questions were improperly phrased but if these questionswere posed along the lines of a juror's reaction to a police officertestifying, versus a private citizen, then the D might have been betteroff.BTLLY GEORGE HUGHES, Ja., #57,394, J. T. Davis, EN BBNC, with J. Phillips, joinedby J. Roberts, dissenting with short opinion, A DEATH PENALTY CASE, AFFIRMED.(Matagorda County).As to prospective jurors being held not to have qualified to serve, CCAadmonishes$efense lawyers, in my opinion, to overcome equivocal meaningof answers, that "the tone of voice and demeanor of the prospective juror"is within the TJ's domah; i.e., the defense attorney, where the prospectivejuror gives an equivocal answer such as "I don't bow" or 'Uaybe" shouldstate into the record the tone of the voice and the demeanor of the witnesswhen he or she gave the answer.CCA also ruled the following argument of prosecutor was improper: "I knowthat out of the 13 of us I am the most expert at assessing punishment forcrimes and far assessing penalties." Instruction, however, made errorharmless.VOICE for the DefenselApril I9 78

&-wThe dissenters would have held the indictment to be voidable, not void,subject to a motion to quash, and, as none filed, relief should have beendenied.SEE ALSO RICHARDZ #57,981, 3/29/78, J. Phillips, Panel $3, 1st Quarter, WHERE IT WASRELE THAT INFORMaTION TWT CHARGED TREFT BY CHECK WICH 0NT.Y ALLEGED "MERCHANDISE" WASFUNLIAMENTALLY DEFECTIVE. (Jefferson County). (Reversed and dismissed).COMMENT: The key to a description of property it seems to me is rather simple. Allme needs to do is read Art. 21.09, C.C.P. "If knom, personal propertyalleged in an indictment shall be identified by same, kind, number,and ownership." "When unknown, that fact shall be stated, and a generalclassification, describing and identifying the property as near as maybe. shall suffice."CCA UNANIMOUSLY REVERSES VANDERBILT, $56,834, 3/22/7&, J. Onion, EN BANC, WtZN IT HOLDSTB~T REVERSIBLE ERROR WAS COMMITTEDBY TJ'S REFUSAL TO ALLOW TEE D TBE OPPORTIINIY TODEVELOP EVIDENCE BEFORE THE JURY RELATIVE TO THE ISSUE OP TEE VOLUNTARINESS OF AN ORAL->COMMENT:What got the State into trouble here, it seems they took too many confeseionsfrom the D and, contrary to the usual rule, talked too muchwith the D and/or his attorney prior to taking the confessions.FACTS: D, an Amarillo police officer, abducted and killed a high school student.(Doesn't it seem that nest to marijpana being outlawed, the recentnotorious actions of some police officers have really been a shot inthe arm for snme defensr lawyers?). After his arrest and being placedinto custody, things get a little detailed; i.e., an attorney is in thepicture, the D's wife comes onto the scene. "deals" are discussed andpossibly made, etc. An oral confession was ruled admissible but awritten confession was excluded by the TJ.On appeal, the D'a complaint centered around TJ's excluding evidenceof the "deal." "I want to go into the deal." "The State has enteredevidence that they offered theD a deal sometlme in the evening ofApril ttle Uth to sign a writteq c&ession." "Then, they put inevidence that tifey 'immediately withdrew it and he thereafter immediatelygave an oral confessionbased upon no deal whatsoever." "NOW, I wantto show that the State did not in fact withdraw the deal, because thedeal was still being talked about from approximately midnight until2:35 a.no.. at which timeMr. Cur-ti. dictated the deal on a tape whichwas played here the other day, and later had it transcribed." "I wantthe jury to be able to decide far itself whether in fact the deal wasmade, sad if it was, whether or not it waa withdrawn."Things looked pretty sealed at this point as TJ ruled that this testimonywas inadmissible. Then the State called an attorney "and askedwhether he conducted any negotiations on the D's behalf with anyone,to which he replied yes."At this point, defense attorney hollered that the "Open Door" doctrine applied.TJ ruled: "No, he didn't open the door."COMMENT:ILKLD:"A D is nlluved the op~tunity to preaenL evidence to the jury onthe issue of che voluntar1new.e of t t conFesnjon ~ which rhe Stare*iotraduredgtrialinnt h+." See Art. 38.22, See. 2, C.C.P.,and Act. 38.24, C.C.P. Rwersed.It seems to me that the CCA said whichever way you want to cut theissue this testimony was admissible.CCA also pointed out that:"In the event of a retrial, we call attention to the recent case ofWarren v. State, #55,613, 3/5/78, (See also Vol. N, No. 6, Peb.,1978, S.D.R., p.101, on sufficiency of the widace to support anaffirmative finding to special issue #2 of Art. 37.071, C.C.P. [asthegtate introduced no evidence at the punishment stage of the trial]."IN EX PART^ a=,PANEL OY CCA STKAICUTKNS OUT LKISLATlVE MESS,KECAIU)IN(: BAIT.,356.956, 3/22/78, T.%m, Panel I2, 1st quarter. (hbbuck CounLy). (Reverded).FACTS: D, eonvieted of robbery, received 13 years. TJ refused to set appeal bandas punishment exceeded 10 years.HELD: "We therefore set aside the order of the TCT denying bail under Art. 42.09.""The provisions of Art. 44.04(c) should have been applied by the TCT todetermine whether to grant or to deny bail."VOICE for the DefenselA

COmmiT:The problem that brought this case to the forefront was because of whatthe Legielahire did at the last session regarding bail. Art. 42.09,~ecs. 4 and 5, C.C.P., was amended and it said that if one gets morethan 10 years he -be transferred to T.D.C. even if case on appeal.The Constitutional Amendment, See also Art. 44.04, C.C.P., does notappear to affect thie kind of D; i.e., only if D gets life or ifindicted as a habitual, or accused of a felony and out on bail, oraccused of felony involving use of a deadly weapon with a prior conviction,would this provision be applicable.Art. 44.04, C.C,P., provides that if D gets 15 years or under, thenonly if W finds that D will not appear when conviction becomes finalor if while out on hail D will commit another offense can bail onappeal be denied.Recognizing tbat "On the surface the statutes do appear to be in conflictas to cases where punishment is ooer t ~ years ; and not over 15years," J. Odom, nevertheless, managed to square up all of the statutesand ruled that to deny hail, if 15 years or under, then Art. 44.04,C.C.P., supra, must he complied with.3CA OVERRULES TON OF CASES IN MAYS, K54.200,3/22/78, J. T. Davis, EN BANC, AND RULES ASFOLLOWS: "TO 'ME EXTENT TBAT OURPRIOR OPIMONS HAVE HELD THAT IT WAS JMPROPER TOADNIT TESTMONP FROM A PBOPBRLY QUALIFIED EXPERT WITNESS AS TO THE RELATIVE POSITIONSOF THE PARTIES AT THE TIME OF A HOMICDE UNLESS HE WAS ACTUALLY PRESENT AT THE TIME,THEY ARE HEREBY OVERRULED." "'ME LACK OF PRESENCE AT THE TIME OF THE nmIcmE COBSTO 'ME WEIGHT RATHER TKAN TBE ADMISSIBILITP OF THE EVIDENCE." (Harris County). Mfimed.IF YOU HAVE A BURGLARY CASE, THAT IS PIOICATKD UPON CIRCUMSTANTIAL EVIDENCE, AND YOUWANT TO SEE IF EVIDENCE IS SIJFPICIENT, YOU MIGHT READ THOMPSON, 154,186, 3/22/78, J.Douglas, Panel $2, 1st Quart=. (Kaufman County). (Affirmed). The facts, which axetoo lengthy to he set out here, are rather interesting and had to do with the D comingfrom the CJW's house.AFTER YOU HAVE READ THOMPSON, SUPRA, TBEN GO AND READ GSLBERTSON, #54,124, 3/29/78,J. Phillips, Panel 13, 1st Quarter, WRICH WAS RKVERSED POR INSUPP. WIDENCE. (BrazosCounty).C(IMMENT:In Gilbertson supra, it appears that the police obtained a statementf r W M a d a few conversations with possible Co-Ds, and then shutit down without reading what they had.Held, "While U's statement may possibly indicate same criminal activity,we cannot conclude that the evidence is sufficient tca sustain aconviction for the offense alleged." "D was not in possessionof any property taken in the burglary." "There was no showinghe was in Bryan the night of the burglary." "Further, even ifwe assume D's statement refers to activities on May 30 and 31,there is no evidence those activities occurred at a location closeto ~ ~ i l e Pharmcy." ~ ' s 'We therefore hold the evidence insufficentto the conviction." Reversed.EX PARTE PRIBBLE, 548 (2) 54, EX PARTE HARRELL, 542 (2) H9, AND SABP\ATT 543 (2) 391,RETURN BND GET EX PARTE SEALEY, #57,135, 3/29/78, J. Roberts, P a n e l s t Quarter.PARTIAL HELIEF AS WRIT GRANTED IN PART AND DENIED IN PART.'me Petitioner's first contention is that his mnviction for lmowingly and intentionallypossessing a criminal instruwnt, namely a forged instrument, withintent to use it in tiw commission of obtaining possession of a controlled substance,was illegally obtained as ha should have been prosecuted for forgery.""The dispositiw of this contention is governed [by the above cases]." "Thus,Sec. 32.32 (a) (1) (c), governs over Sec. 16.01."P.J. ONION, IN ABEAKS, $54,302, 3/29/78, Panel 12, 1st Quarter, DISCUSSES CITY OPARXINGTON'S SPEEDING ORDINANCE AND APPEALING CASES FROM MUNICIPAL COURT TO COUNTY COURTTO COURT OF CRIMINAL AF'PEALS. (Tarrant County). (Reversed).

As to the latter, Held: "We hold, therefore, that in misdaeanor cases where themaximum paesible punishment is by fine only, the notice of appeal to the Courtof Criminal Appeals (from the County Court) must be given within ten days afterthe entry of the judgment if no motion$ for new trial are timely filed." "If amotion or mended motion for new trial is timely and properly filed. then noticeof appeal shall be given within ten days after the overruling of the motion ormended motion for new trial." Here, notice of appeal was given timely.WHEN IS JORY MISCONDUCT, WARDING JWORS DISCUSSING PAROLE LAW, REVERSIBLE ERROR?IN B, 153,986, 3/29/78, J. Odm, Panel il2, 1st quarter, with J. Douglas dissentingwith opinion, CCA held: "We conclude from this record that the jury misconductof discussion of the parole law was harmful and denied D a fair and impartial trial.""The discussion was extensive and adversely affected two jurors' consideration of theprobation issue." Reversed. (Randall County).COMMENT:Here, it was undisputed thaf "During deliberations at the punishmentstage of D's trial ate of the jurors, bow ae the colonel, statedthat he had served on court martials and was familiar with the parolesystem." "He told the'jury that if D were given a two-year sentence,he would not have to serve more than 8 [or between 6 and 8 months]before becoming eligibe for parole."STATE ATTWTED TO USE LECWGA, 532 (2) 581, TO SHOOT DOWN THE D. "TheState cites Lechuga, 53-81,far the proposition that 5 years'probation is a greater punishment than 3 years' confinement." "Thatwas not the holding in Lechnga."J. Douglas, whose ability to recall interesting cases is uncanny inmy opinion, dug out the "Shuck" in w, 320 (2) 13, and found a Motionfor Rehearing filed by the Late Great Jim Bowie, which conmined someinteresting comments:(He really would have made a good Editor for S.D.R.).After stating that the D was tried and convicted, it was then statedby the former jud e: "Not desiring to avail himself of the exerciseand friendly atmkphere of ?or Dept. of Corrections, he appealed his easeto the lower court--the Court of Crim. Appeals." "To his surprise, aswell as ours, the case was actually reversed-no kidding." "The saidlower Court fowd through some legal trickerp that a juror during deliberationsstated, "As I Recall, it was mentioned under a 5 yearsentence that he would be eligible for parole--after 1 year and3 months." "The lower court therefore held that Willie Odd1 couldnot be at liberty (as a matter of law) until after he had served 1year and B months; i.e., 20 modtbs, and the juror erred where hestated he could be spmng in U months."After atating that the D was retried, again given 5 years, and againappealed and the appeal was affirmed, then bsst. U.A. Bmie said thatOdeU had come to his @££ice"in good health and good spirits," havingbeen released after serving the 5 year sentence in 13 months and13 days, 6 months and 17 days "less than J. Dice gneseed as a matterof law and some 1 month and 17 days less than the juror figured.""We therefore respectfully request the lower appellate court berevereed and the case against Willie stricken from the South WesternReporter.""lf we are wrong in this regard, will you kindly explain howin the hell Willie got in mp office?"REMEMBER. IF YOUR APPE4L CONCERNS A MOTION, MAKE SURE IT IS IN TBE BECORD ON APPEAL.SEE $57,280, 3/29/78, P.J. 0nim;Panel #2, 1st Quarter. "In the instant easeD claims to have filed a written motian far pretrial hearing on competency, but asearlier observed, there is no written motion in the record." (Ectar County). Affirmed.Held, "We cannot,canclude that the court erred in overruling the motion.""This is particularly true since shortly after such motion was overruledthe D enterad a plea of guilty, represented by the same counsel who had'filed' the mtion."IN TIOM #57,325, 3/29/78, 3. Odom, Panel #2, 1st Quarter, CCARULD THAT THERE-?IS NO BIFURCATED TRIAL AT A PLEA OF G U U ~ T-. THIS D Dm NOT HAVE TAE RIGHTTO CALL WITNESSES AT THE SENTENCING. "RVRN SO, NOWHAT ANY WITS WOULD HAVE TESTIFIED TO." (MCLENNAN COUN~Y). APFIRMED.VOICE for the Defense1 'April 19 78

IN TENNON g57.569, 3/29/78, P.J. Onion, Panel 112, 1st Quarter, CCA RULED IT WASNOTFOR TJ TO ASK D WHETHER SHE NAD ANPTHING TO SAY BBFORB SENTBNCE WASPRONOUNCED. (Bell County), (Mfirmed)."Surely D would not have this court reverse this cause and order a newsentencing so that when the court asks her if she has anything to saywhy sentence should not be pronounced against her she can then answer"Nothing. "COMweNT:Want to bet, Your Honor?THE TMPORTANCE OF WINNING THAT FIRST D.W.I. CASE OR KEEPING IT FROM BECOMING SUB-SEWENTLY USED AS A PRIOR CONVICTION TO MBI(E A FELONY D.W.I. CAN BEVER BE IBTHASIZEDBUT, DON'T GIVE UP. Nit pick that old D.W.I. conviction, if you can. Rememberthat a misdemeanor conviction is void if D was not represented by counsel, wasindigent, and did not make a knowing and intelligent waiver of his constitutionalright to counsel. See, for example, Ex Parte Woadard, 541 (2) 187. File aMotion to quash if you can. Check the old D.W.I. records and get certified copiesbefore you leap.SCREWEE UP RECOW GETS APPEAL ABATED IN HARQUEZ, t57, 659, 3/29/78, J. Roberts, Panel(13, 1st Quarter. (EL Pasa County). Abated.COMMWlT:If you are appointed to appeal a case where you honestly believeit is frivolous, make sure the S/P of the trial is in the Record on Appealand make surc you have complied with the rules of the CCA, regardingfrivolous appeals. See Cararva , 1f57.312, 1/25/78. In Marquee, supra,J. Roberts had this to sdile D's court-appointed counsel mightonce again conclude that the appeal is wholly frivolous and with merit,it is difficult to preeive haw counad fulfilled his obligationdelineated in ~ndks v. Calif. when the complete SIF did not appearin the record foreounsel.siew."FOR THOSE CNn LAWYERS OUT THERE WHO GET INVOLVED IN A CRIMIMG CASE AND WHO WART. 39.02, C.C.P., REGABDING TAKING OF DEPOSITIONS OF WITNESSES IN A CRIMINAL CASE,DON'T GET EXCITED BND B~LIEVE POU WVE T= AUTOMATIC RIGHT TO TAKE A DEPOSITION OF AWITNESS. I mVE YET TO FIND A CRIMIWAL CASE WRE TRE CCA GRANm ANY RELIEF ON THISPOINT NO MATTER W&PT THE FACTS VIGHT BE. TRE CCA REAPPI- MY BELIEP IN*, 154,020,3/29/78, J. Roberts, Panel t3, 1st quarter, REGARDING THIS ISSUE. (Galveston County) .Affirmed.Thus, as the law now stands, you are simply not going to get anywhere byasking to take anyone's deposition repzdless of why you claim you have theright to take same.DON'T FORGET TO VOTE ONMAY 6, 1978IApril 1978/VOICE for the Defense

'PROSECUTORIAL COMPULSION from p. 8Conceahnent of Writing], of the PenalCode.Thus, a defense attorney confrontedwith an attempted compulsion of the tes-&&imony or reports of his expert witnessescan probably only attempt to controvertthe legality of an order by thetrial judge direding their testimonyor authorizing prosecutonal discovery oftheir reports.10 It is now appropriate toexamine the legal theories upon whichdefense counsel can attempt to contestthe legality of prosecutoriz attempts atcompulsow discovery of defense-huedexp&t's t&tmony and reports.IU. COMPULSION OF DEPENSE-HIREDEXPERT TESTIMONY AND PROSE-CUTORIAL DISCOVERY OF THEIRREPORTSThere are four theories which can beadvanced by defense counsel to defeatprosecutorial attempts to compel defensehiredexpert testimony or the discoveryof their reports. Specifically, it oan beargued that the compulsion of such testimonyand reports: I) invades the attorneyclientprivilege, 2) falls with the purviewof the "work product" doctrine, 3) violatesa defendant's right, nnder the FourteenthAmendment. to due process of lawbecause of a lack of reciprocal discoverybetween the prosecution and the defense,and 4) violates a defendant's right to effectiveassistance of counsel nnder theSixth and Fourteenth Amendments.A. The Attorney-Client PrivilegeThe attorneyclient privilege can berelied upon to protect ONLY the testimo-ny of defense-hired experts relating tofacts obtained from the attorney and thedefendant-client.11In Unlted Statds v. Unzted ShoeCo.,12 a federal district court set out adefinition of the common law rule of theattorney-client privilege:The privilege applies only if 1)the asserted holder of the privileaeis or soueht to become aclient; 2) the p&on to whom thecommunication was made a) isa member of the bar of a court,or his subordinate and b) in con-~lection with this communicationis acting as a lawyer; 3) the communicationrelates to a fact ofwhich the attorney bas beeninformed a) bv his client b) withoutthe presence of strangers c)for the purpose of secnrina primarilyeither i) an opinion-onlaw or ii) legal senices or iii) assistancein somelegal proceeding,and not d) for the purpose ofcommitting a crime or tort; and4) the privilege has been a)claimed and b) not waived bythe client.'"In W~ll~ams v. Wtlkams,l4 Article 713(now Article 38.10) C.C.P., was held tobe a codification of the common law attorney-clientprivilege so well stated inUn~ted Shoe Co. 15 The #~lllams Courtstated that[tlhe rule IS absolute as to communicationsmade with an attorneyas to past transactions andoffenses. . . .The purpose of it isto secure to litigant's free communicationwith their attorneysupon all matters involved in Utigationand any other legitimatematters concerning which legaladvice is desited.16 (emphasisadded)However, in Ballnrd v. Ballard,'7 a TexasCourt of Civil Appeals stated that ". . .before a communl~ation to an attorney isprotected it must appear that the communicationwas made by a client. . ."18in professional secrecy.Ballard appears to limit the privilegeto those matters which directly pass betweenan attorney and his client. However,according to Willmms, the rule is tosecure all matters involved in litigationor upon which legal advice is requested.Thus, it cp be argued that the rule doesnot cover dl situations encompassed bythe policy since matters passing from aclient to an attomey through a third partyintermediary have not been held privilegedby the Texas courts.In United States v Kovel, 19 theSecond Circuit was confronted with asituation where the defendant Kovel wasadiud~ed in contempt of court forrefusinrto-answer a question asked by the grand-. iurv. Kovel was a full time, non-lawyeremployee for a law firm, specializi& inaccountidg. The court recognized twoconflicting forces; the need for truth inthe fact-finding process demanded therestnetion of the privilege, and yet anattorney should be allowed to rely uponprolcssinnd agents in the prupdration ofhis cases with the arsurance that all workprepared for him would not be disclosedto the opposing party.zO The court heldthat statements made in confidence bythe client to agants of the attorney wereprivileged regardless of the presence orabsence of the attorney.21 The Kovelprinciple has been held not limited solely.to cases in sta~es of litieation.22 It hasbeen extended 6 protect those persons inprivitv - - with the attorney ox clisnt.23 andsuch communications to non-lawyeragents will fall within the scope of theprivilege if they form hnks in the chain of~ommunication between the attorney andthe client.24 Further, Kovel has been extendedto experts other than accountants;25therefore, all experts are theoreti-cally included within the scope of the privilege.Two arguments have been advancedto justify the expansion of this privilegeto experts. One may argue either that theexpert is merely a conduit who relates theclient's communioation to the attorney,or that the expert acts as an interpreter totranslate the significance of the client'sinformation to the attorney.26Texas, however, docs not appear tohave adopted any of the foregoing viewsof the attorney-client privilege. li~M~narv Bishop,z7 a Court of Civil Appeals heldthat where &atements were made to anattorney who represented two distinctparties, and they were made in the preenceof a number of other interestedlitigants with the intent that all litigantshear the statements, such statements werenot privileged. Thus, Minor apparentlystands for the proposition that statements,made in the presence of parties not agentsaf the attorney and not intended to beprivileged, will not be privileged. Moreimportantly, Johnson u. State.28 heldthat where statements were made in ageneral conversation by the accused to hisattorney and another person, these statementswere not privileged. There, however,the relationship of the third party tothe accused or the attorney was not revealedby the Court's opiniok.29Thus, although no authoritative casehas been handed down by the Texascourts,30 an argument can be made thatthe attornevclient vrivilene in Texas doesextend to protect -the testimony of defense-hiredexperts from discovery. If theprivilege doesso extend, however, it willonly attach to the statements made bythe defendant to the expert? because. . .the protective cloak of this[attorney-client] privilege doesnot extend to information whichan attorney secures from a witnesswhile acting for his clientin anticipation of litigation. Nordocs the privilcgc conecni thememoranda, hlicfs, conin~unicationsand other writings preparedby counsel for his own usein prosecuting [defending] hisclient's case, md it is equally unrelatedto writin@ which reflectan attorney's mentalimpressions,conclusions, or opinions or legaltheories.31Of course, merely because Texas has notadopted the Koval principle and its extensionsdoes not mean that the courtswill not protect statements made by adefendant to a defensehired expert.Glven the complexities in the preparationof a criminal defense, the need for a clarifiedposition on this issue by the courtsof Texas is obvious. This is particularlyVDICE for the DefenselAprzl I978

PROSECUTORIAL COMPULSION from p. 8 the client. l3 cally included within the scope of the pri-Concealment of Writing], of the PenalIn Wrlliarns v. W1lhams,14 Article 713 vilege.(now Article 38.10) C.C.P.. was held to Two armments have been advancedbe a codification of the common law attorneyclientprivilege so well stated inUmted Shoe Co.lS The Wtlllarns courtstated thatThus, a defense attorney confrontedwith an attempted compulsion of the tes-&&nony or reports of his expert witnessescan probably only attempt to controvertthe legality of an order by thetrial judge directing their testimonyor authorizing prosecutorial discovery oftheir reports.10 It is now appropriate toexamine the legal theories upon whichdefense counsel can attempt to contestthe legality of prosecutorial attempts atcompulsory discovery of defense-hiredexpert's testimony and reports.111. COMI'ULSION OF DEFENSE-HIKEDEXPERT TESTIMONY AND PROSFCUTORIAL DISCOVERY OF THEIRREPORTSThere are four theories which can beadvanced by defense counsel to defeatprosecutorial attempts to compel defensehiredexpert testimony or the discoveryof their reports. Specifically, it can beargued that the compulsion of such testimonyand reports: I) invades the attorneyclientprivilege; 2) falls with the purviewof the "work product'' doctrine. 31 violatesa defend& right, under the FourteenthAmendment. to due process of lawhrcauw of a lack of ncipr;,cal discwcrybctwcen the prwccution and the defense,and 4) violat& a defendant's right to effectiveassistance of counsel under theSixth and Fourteenth Amendments.A. The Attomey-Client Pri~ilegeThe attomey-client privilege can berelied upon to protect ONLY the testimonyof defense-hired experts relating tofacts obtained fmm the attorney and thedefendant-client 11In united ~totgs Y. ~mted shoeCo., 12 a federal distriot court set out adefinition of the common law rule of theattorney-client privilege:The privilege applies only if 1)the asserted holder of the privilegeis or sought to become aclient, 2) the person to whom thecommunication was made a) isa member of the bar of a court,or his subordinate and b) in connectionwith this communicationis acting as a lawyer, 3) the communicationrelates to a fact ofwhich the attorney has beeninformed a) by his client b) withoutthe presence of strangers c)far the purpose of securing primarilyeither i) an opinion onlaw or ii) legal services or iii) assistance in some legal proceeding,and not d) for the purpose ofcommitting a mme or tort, and4) the privilege has been a)claimed and h) not waived by[tl he rule is absolute as to communicationsmade with an attorneyas to past transactions andoffenses. . . .The purpose of it isto secure to litigant's free Mmmunicationwith their attorneysupon all matters involved in litigationand any other legitimatematters concerning which legaladvice is desired.16 (emphasisadded)However, in BaNard v. Balldrd,l7 a TexasCourt of Civil Appeals stated that ". . .before a commu~cation to an attorney isprotected it must appear that the communicationwas made by a client. . ."18in prpfessional secrecy.Ballard appears to limit the privilegeto those matters which directly pass between an attorney apd his client. However,according to M)tltzarns, the rule is tosecure aN matters mvolved in litigationor upon whlch legal advice is requested.Thus, it cp~be argued that the rule doesnot cover all situations encompassed bythe policy since matters passing from aclient to an attorney through a third party intermediary have not been held privilegedby the Texas courts.In United States v Kovel, 19 theSecond Cncuit was confronted with asituation where the defendant Kovel wasadjudged in contempt of court forrefusingto answer a question asked by the grand-.iurv. Kovel was a full time. non-iawveremployee for a law fnm, specializing inaccounting. The court recognized twoconflicting forces; the need for truth inthe fact-findim process demanded therestriction of ;he privilege, and yet anattorney should be allowed to rely uponprofes~onal agents in the preparation ofhis cases with the assurance that all workprepared for him would not be disclosedto the opposing party.20 The court heldthat statements made in confidence bythe client to agents of the attorney werepr~vileged regardless of the presence orabsence of the attorney.21 The Kovelprinciple has been held not limited solely,to cases in &ages of litiiation.z2 It hasbeen extended to protect those persons inprlvity with the attorney or client.23 andsuch communications to non-lawyeragents will fall within the scope of thep&ilege if they form links in the chain ofcommunication between the attorney andthe client.24 Further, Kovel has been extendedto experts other m n accountants;25therefore, all experts are theoreti-to justify &e expansion of this privilegeto experts. One may argue either that theexpert is merely a conduit who relates theclient's communication to the attorney,or that the expert acts as an interpreter totranslate the significance of the client'sinformation to the attorney.26Texas, however, does not appear tohave adopted any of the foregoin& viewsof the attorneyclient privilege. III Minorv. Blshop,27 a Court of Civil Appeals heldthat where statements were made to anattorney who represented two distinctparties, and they were made m the preenceof a number of other interestedlitigants with the intent that all litigantshear the statements, such statements werenot privileged. Thus, Minor apparentlystands for the proposition that statements,made in the presence of parties not agentsof the attorney and not intended to beprivileged, will not be privileged. Moreimportantly, Johnson v. ~tate.28 heldthat where statements were made in ageneralconversation by the accused to hisattorney and another person, these statementswere not privileged. There, however,the relationship of the third party tothe accused or the attornev was not revealedby the Court's opiniok29Thus. although no authoritative casehas be& handed down by the Texascourts,30 an argument can be made thatthe attorney-client privilege in Texas doesextend to protect the testimony of defense-hiredexperts from discovery. If theprivilege does so extend, however, it willonly attach to the statements made bythe defendant to the expert, because. . .the protective cloak of tlus[attorney-client] privilege doesnot extend to information whichan attorney secures from a witnesswhile acting for his clientin anticipation of litigation. Nordoes the privilege concern thememoranda, briefs, communicationsand other writings prepared by counsel for his own usein prosecuting [defending] hisclient's case, and it is equally unrelatedto writings which reflectan attorney's mentalimpressions,conclusions, or opinions or legaltheories.31Of course, merely because Texas has notadopted the Koval principle and its extensionsdoes not mean that the courtswill not protect statements made by adefendant to a defcnse-hired expert.Given the complexities in the preparationof a criminal defense, the need for a clarifiedpostion on this issue by the courtsof Texas is obvious. This IS particularlyVOICE for the DefenselApril1978

true in light of a recent statement by theSupreme Court that.As a practical matter, if the clientknows that damaging informatloncould more readily be~kpbteed from,the attorney followmgdwclosure than from himselfin the absence of disclosure,the client would be reluctant toconfide in hislawyer and it wouldbe difficult to obtain fully informedlegal advice. However,since the privilege has the effectof withholding relevant informationfrom the fact-fmder, it appliesonly where necessary toachieve its purpose. Ac~ordinglyit protects only those disclosures-necessaryto obtain informedlegal advice-which mightnot have been made absent theprivilege.32In addition, a recent case has emphasizedthe necessity of allowing "interested"third parties to sit in on otherwise confidentialcommunicatmns in the context ofaloint defense33 (by two defendants withseparate attorneys). On a policy basis, theneed for confidentiality insnch asituation1s no greater than where outside expertassistance is necessary to the preparationof the defense. Even employmg a balancingtest, as one court has suggested,34 toascertain whether the Texas courts shouldextend the privilege to include communicationsto a non-lawyer expert, the obviousnecessity of non-lawyer expert adviceoutweighs any increased burden on'. the fact-finding process.Notwithstanding this conclusion, it isunclear whether reliance upon the attorney-clientpnvdege would be successful inTexas in protecting the communicationsof defense-hired experts from prosecutorialdiscovery. Nevertheless, it shouldhe vigorously asserted.B. The Work Product DoctrineIn H~ckman v. Taylor.35 the UnitedStates Supreme Court interpreted Rule 26of the Federal Rules of Civil Procedure,and stated that an attempt. . .to seenre written statements,pirvate memoranda and personalrecollections prepared or formedby an adverse party's cowel inthe csurse of his legal duties. . .falls outside the areaof discoveryand contravenes the public polioyunderlying the orderly pprsecutionand defense of legal clams.Not even the most liberal of discoverytheories can justify unwarmntedinquiries Into the filesandthe mental impressions of an attorney.* * * * * * This workisreflected, of course, in internews,statements, memoranda,correspondence. briefs, mentalimpressions, pasonal beliefs,and countless other tawble andintangible ways-aptly thoughroughly termed. . .as the "'workproduct of the lawyer."36The work product doctrine was thus created,although it was created solely in thecontext of a civil case and was limited tomaterials prepared by the attorney himself.At first glance, it appears pecuharthat the attorney-client privilege does notpFotect the materials enumerated in H6ckman.However, the "work product doctrineis distinct from and broader thanthe attorney-client prMege."37Then, in Un6red States Y Nobles, 38th-3 Supreme Court extended the "workproduct" doctrine to criminal cases andstated that the role of the work productdoctrine. . .in assuring the proper functioningof the criminal justicesystem is even more vital. Theinterests of society and the accusedin obtaining a fair and accurateresolution of the questionof guilt or innocence demandthat adequate safeguards assurethe thorough preparation andpresentation of each side of thecase.39 cThe Court noted that both state and federalcourts had recognized the "workproduct" doctrine in criminal proceedingsand that it protected both theprosecutionand the defense.40 Of particular significancewas the Court's assertion that[olne of those realities is thatattorneys often must rely on theassistance of investigators andother agents in the compilationof materials in preparationfor trial. It is therefore necessarvthat the doctrine protectmalcriul prepared by agents torthe sttorncy as well ns those pr+pared by thc attorncy himself.Morcovcr, the coaucrw reflectedin the work pru~lu~t dwlrinc donot disappear once trial has be-Run. Disclosure of an attorney'sefforts at trial, as surely as &Fclosure during pretrial discovery,could disrupt the orderly developmentand presentation of hiscase.41Nevertheless, the Court went on tohgld that the prosecutron had a right tosee written statements made by defensewitnesses after they testify in court becausetheir testimony and reliance uponsuch statements at trial constituted awaiver of the work product priviiege.The Nobles decmion did not indicatewhether the opinion was based upon theConstitution or the Court's mherent su-pervisory power over the federal courts,It is clear that the Court's holding-thatthe lower court could properly order thedefense to disclose written statementsmade by defense witnesses after they hadtestified-was premismi on a waiver of thework product doctrine. Still, a proper inquiryis whether the Court's decision thatthe role of the work product doctrine". . in assuring the proper functioning ofthe criminal justice system is even more~ital"4~ was based on constitutionalgrounds.In an analysis of the basis for thedecision in Nobles, it may be helpful toconsider the history of the work.productdoctrine. One commentator has statedthat[tl he natural jealousy of the Iawyerfor the privacy of his file,and the court's desire to protectthe effectiveness of the lawyer'swork as the manages of litiiahon,have found expression, notonly as we have seen in the evidentialprivilege for confidentiallawyer-client communications,but in rules and practices aboutthe various forms of metrial discovery.Thus, under the chancerypractice of discovery. ..the adversarywa.; not rcquired rodisclose,apart from his own testimony,thc cv~dcncc wh~hc would use.or the names of the witnesses hewould call in support of his owncase. The same resttichon hasoften been embodied in, or readinto, the statutory discoverysystems.*3(Footnotes omitted)Also, as Wigmore has noted, the workproduct doctrine and the attorney-clientprivilege spring from the same commonlaw orim." In the United States, unlikeEneland. these conceots have been treateds&rateiy,45 although the courts havesometimes intertwined the two.46 Therefore,it would appear that the doctrine is"firmly established as a common law privilege."47Further, none of the cases to whichthe Court inNo bles referred as recognizingthe work product doctrine in criminallaw have treated the work product doctrinein constltut~onal terms. No actualauthority, therefore, exists to sustain theproposhon that the work product doctrine,as discussed in Nobles, is premisedon constrtutional grounds. Still, the NoblesCourt stated that "[tlhe interests ofsoc~ety and the accused in obtaining a fairand accurate resolution of the question ofguilt or innocence demand that adequatesafeguards assure the thorough preparationand presentation of each side of thecase."@ It may, therefore, be argued thatthis is an indication that the Court viewsAprd 1978/VOICE for the Defense

the work product doctrine as "unplicit inthe concept of ordered hberty,"49 or"fundamental to the American scheme ofjnstice,"so and hence within the purviewof the due process clause of the FourteenthAmendment.*- Whether in' fact the work productdoctrine is a constitutional principle applicableto the states remains to be seen.In the event that it is, then any testimonyand reports of defense-hired experts withinthe general area of work product, willbe protected by the privilege, unless it isotherwise wamed. If the work productdoctrine, however, is not based upon constitutionalpfinciple~~ then the questionbecomes whether the Texas courts willfollow the common law and recognize thedoctrine as it relates to defense counsel.But what of the work product doctrinein Texas? Article 39.14, C.C P., specificallyexempts from discovery to thedefendant "the work product of counselin the case and their investigators and theirnotes or reports." This statutory workproduct rule operates to the benefit ofthe State; there is no statutory connterpartthat operates to the benefit of thedefendant. Moreover, although the caselaw is replete with examples of the denialof discove+y motions under Article 39.14C.C.P. when the motions reauested thework product of the prosecutor, there areno authoritative cases &.cusdn~ the workproduct doctrine as it applies to defensecounsel.If theh'obles decisionis,mdeed, basedupon constitutional grounds, then thework product doctrine as applied thereinwill be applicable to the states. If it isnot, then the question arises asto whetherTexas will by statute or judicial interpretationof state law afford the work productof defense attorneys the same protectionafforded that of the prosecution.Given the arguments advanced belowin sections 111 LC & DJ, it is unlikely thatthe Texas courts could deny the protectionof the work product doctrine to thetestimony and reports of defense-hiredexperts. It would appear, therefore, thatdefense attorneys could successfully relyupon the work product doctnue to blockprosecutorial attempts to compel expattestimony and discovery of reports preparedby defense-hired expert witnesses.JI'll be with you as soon as I finish the good partabout "exculpatory statements" and "res gestae:'Now who is he kidding? He knows and she certainly knows thatTEXAS ANNOTATED PENAL STATUTES isnV going - - to cause any spontaneousutterance among Texas attorneys.Is it?Of course not. We wouldn't try to convince you it could even come close.But then, you didn't get into this profession for the purpose of preoccupyingyourself with searing novels. The material you need breaks down into factsfactsthat make you the best seller. Sometimes, those facts get complicatedand without a clear understanding of them, vou won't aet off the shelfBRANCH'S THIRD EDITION OF TEXAS ANNOTATED PENAL STATUTESunderscores the facts of Texas law skilfully and logically. It's a practical setthat smooths out the rough spots with research guides, checklists, andessential forms.C. Due ProcessBut, yes, it does make for rather dry reading, so don't try to fool an oneAs stated above in section 111 (B), ~ r - into thinking res gestae is one of the "good parts." TEXAS ANNOTA&Dtitle 39.14, c.c.P., exempts ' PENAL STATUTES may not be the kind of book you love, but it is the kind offrom discovery the 'cwntten statements book you need. It's a respected item. It's concise. It's dependable. It'sof witnesses and. . .the work product ofBranch's Third.counsel in the case and thex mvestigators Call or write your Bancroft-Whitney representative for more information.and their notes or report," and ". . .writtencommunications between the State orany of its agents or representatives or employees."This statutory work productrule operates only to the benefit of the1111BAIICROFT-'NHITNEYGO.301 Brannan StreetSan Franc~sco. Cal~farnm 94101VOICE for the DefenselApril1978

prosecutor; there is no sdar statutoryequivalent protecting the defense counsel'swork product. Thus, the key question iswhether a court order compelling the testimonyand disclosure of defense-bired"g.erts'.who will not testify for the defse, wfil violate dbe process standards.The focus of inquity begins withW~lf~urns v. Ir2ondii.51 There, the SupremeCourt upheld the constitutionality ofFlorida's notice-of-alibi rule. That rule requiredpretrial notification to the vrosecutionby the defendant of the anticipateddefense of alibi. The defendant was requiredto notify the prosecuti~n of theplace at which a defendant claimed to beat the time in question and the names andaddresses of the witnesses to be called insupport of the alibi. The Court emphasizedthat due process was not violatedwhen "the defendant eniovs reciorooalAdiscovery against the state:";^In Wurdzus v. Oregori,53 the SupremeCourt was confronted with an issue un-parently grounded on the same theorythat led to the Supreme Court's holdingin United States u. Nobles, which is thatthe use of the document or the testimonyof the witness involves a waiver of thework product doctrine.Reliance for this due process argumentcan also be had upon Unrted Statesv. Wright39 There, the defense retainedan investigator to intetv'iew potentialwitnesses and he subsequently submitteda report to the defense attorney. At trial,the investigator testified for the defenseand the trial court ordered the defense toturn over a copy of his entire report tothe government. Upon review, the courtof appeals held that[tl he defendant has a right underthe Fifth Amendment tocompel the state to investigateits own case, find its own evi-FOOTNOTESl~hls arttcle does not rnclude a discussmn ofVernon% Ann. CiV. St., Article 4413 (29bb),Section 28 (a), which states.Any ltceasee or off~cer, director, part-fatiYe, any information he may acquireas to any criminal offense, buthe shall not drvulge to any other pmsonexcept as he may be required bylawm to do. any informatron acuuiredby him exc&at the direction of theemployer or client for whom the informationwas obtained.Howevw, the four constitutional arguments ad-~anced in this article an fully applicable to thestatute. Moreover, there are additional constitutionalproblems with the statute that meritSeparate attention.2This article will not attempt to include a discussionof potential violations of the FifthAmendment's prohibition against self-insrimination.3Artlcle 38.06, C.C.P., states that all personsere competent to testify except1 Insane persons who ar* tn an indence, and prove its own facts.The defense has no duty tothe prosecution convict the deresolvedin Wrlllums which was whether fendant. We therefore reject any sane conditron of mmd at the timethe due process clause of the Fourteenth rule which would require the de- when they are offered as a witness,Amendment forbids the enforcement of fense to turn over to the prosecu- or who were in that condit~on whenthe events happened of whtch theynotice-of-alibi rules in the absence of re- tiou prior statements of defenseare called to testify; andciprocal discovery rights for the defend- witnesses which could be used 2. Chtidren or other persons who,ant. The Supreme Court, in holding that by the prosecution as evidence after being enammed by the court,due process is violated in the absence of against the accused.60 appear not to possess suffiolent m-tellnet to relate transaetmnb withreciprocal discovery rights, stated that Wright, howe~er, may have been implicit- respect to which they are interroga-[tlhe State may not insist that ly overruled by Un~tedStutes v Nobles a ted, or who do not understand thetrials be run as a "search for The Nobles Court did not expressly over- obllgatmn of nn oath.truth" so far as defense witnesses rule wrwht, but did &tinwish it on the Them are furlher exceptions to the general rulewhich are not relevant to the purposes of thisare concerned, while maintaining ground that no general xfwhi ng expedi- article. See Artides 38.101 & 38.11,C.C.P."poker game" secrecy for its tion" into defense files or into the de- 4, DR (B), T,tle 14 Art. 12,own witnesses. It is fnndamen- fense iniWtigat0r'~ report was involved Section 8, Vernon's Ann. clv st. [hereinaftertallv ~ ~ unfair . ~ to ~. , -~~ reouire n defend- in Nobles 62 Thus. it is unclear if Wri~ht noted simply by D R I .A~.-- - -------ant to divulge the details of his is still good law.6350, 4.101 (C).own oase while at the same time Prosecutorial compulsion of defense- 60K 4 101 (0).subjecting him to the hazard of7DR 7-109 (A).surprise concerning refutation of8Tha court order, it should be noted, could beenteredthe very pieces of evidence whichon the bas= of competency or on Arfade 4413 (29bb). Sectron 28 (a), tf a defensehehas disclosed to the State.54hrred private investigator was mvolvrd.(Footnotes omitted)9~~ 7-106 (A).According to the Court, the lack of sig-lOlt can also be argued that prosceutor~al disnificantgovemmental mterests in not af-covory of reports nf defense hmd experts, asfording reciprocity clearly justified itswell as the compulsion of then testimony forthe State, vtolates Sectmnholding that an absence of reciprocity in31.44, Penal Code[Theft of SrmcesI, whlch states m part thstsuch a situation resulted in a deprivationa) A pemon commtts theft of semcesof due process to the defendant.if, w~th lntent to avoid payment farThe principle of Wurdius is analogoussenrlces that he knows is provldedonly for compensatton.to the instant analysis. It is easy to con-I.***+ceptualize the deprivation of due process2. havmg control over the dlspowttonoccasioned by the compelled discovery ofof services of another to which he istestimony and reports falling within thenot entitled, he mtcntianally ordefense attornev's work nroduct whenknowindv diverts the other's servicesthe prosecutor's work product is speclfi-to hi &n bcncfit or to the benefttcally exempted from disoovery.55Moreover, neither the %se beforethe jury" rule56 nor the Gaskin rule57obviate the analogy, even though theserules control over the work product exceptionof Article 39.14, C.C.P.58 Thatthe "use before the jury" and Gaskin rulescontrol over Article 39.14, C.C.P., is ap-hired exoert testimonv and reoorts. there- - ,fore, may be violative of due process. Ifthis is true. then the result will be to eitherforbid prosecutorial attempts to obtainthe testimony of or reports by defensehiredexperts who will not testify for thedefense, or to permit the compulsory discoveryand compelled testimony of expertsby both the prosecution and defense.Since Article 39.14, C.C.P., forbids thecompelled disclosure by prosecution expertsof their reports, the formet practicewould be the better. Another considerationin support of the former practice isthat the sanctity of the work product ofan attorney may be more important thanmutual discovery by the parties. Whilethere does not appear to be any reasonwhy the prosecutor could not waive theprotection of Article 39.14, C.C.P. andrequest reciprocal discovery, a reasondoes exist, as will be discussed beIow insection 111 (Dl.The conclusion of Mr. Botsford's articlewill appear in the May issue of theVOICE.of another not entitled to themThe theory wxth regard to Sectmn 31 04 is thatthe defendant owl for the services of ha experts, yet the &ate is recemng the use and henefittheroof As s practical matter, the onlypossible benefit such a theory could have wouldhe in canvlnnng the tnaland/or appellate courtsthat the compulsion of tcstmony or reports is~ilegdl.Aho, it could beafgurd that the State wasdrpnvmg the defendant nf ha property withoutApril 1978/VOICE for the Defense

ATTORNEY GENERAL'SOPINIONSNOTE. Copes of the full opinmns maybe obtained from the Assocint~on office..With the cooperation of the sheriff orcfiminal district attorney, the DallasCounty Commissioners Court may providefunds for a contract with a rape crisis centerfor the performance of services whichthe county itself might have performedand which are designed to encourage enforcementof criminal laws involvin~! -sexual assault.2/2/78H-1124RQ-1720Section 12.106 of the Parks and WildlifeCode which authorizes the impositionof a fine on alleged violators of fish, game,and park laws who fail to appear in court,is not a "law relating to the protectionand conservation of. . .wildlife." Hence,fines collected under it are not subjectto section 12.107, providing for remissionof a percentage of certain fines to theParks and Wildhfe Department2/6/78-A member of the StateBoard of Healthis authorized to make inspections and investigatiomof nursing and convalescenthomes uursuant to article 4420. V.T.C.S.(May ~hter and Inspect).2/23/78H-1127R0-1723Article 332b-1, V.T.C.S., as amendedin 1977, does not authorrze the CountyAttorney of Terry County to representthe state in criminal matters before the121st Judicial District Court.71?A/7R I, . I ,..IH-1128RQ-1766Misdemeanor plobation under article42.13 of the Code of Criminal Procedureis not avaiIable to defendants convictedof an offense with a maximum punishmentof a fine not to exceed two hundreddollars. When a defendant receives probationunder article 42.13. his convictionis not final.2/27/78-A tml de novo in county court followingconviction in municipal or justicecourt is subject to article 32A 02 whenthe defendant files a valid appeal bond.The defendant's detention, for purposesof arhcle 17.151 of the Code of CriminalPro~edure begins when he is actuallytaken into custody following convictionin the municipal or justice court. The article17.151 requirement that defendant"he released. . .by reducing the amountof bail" means that bail must be reducedto an amount he can afford to pay.3/1/78H-1132RQ-1787A special county judge appointed pur-suant to article 30.03, sec~on 2 of theCode of Criminal Procedure need not hereappointed for each case. The specialcounty judge does not serve on or presideover the commsioners court. Article1933a, V.T.C.S.,authorizes the countyjudge in certain counties to appolnta special judge to handle a single pendingcase. The judge appointed pursuant toarticle 30.03, section 2 of the Code ofCriminal Procedure may handle probatematters. A county judge who is unwillingto act in a probate matter may appointa special judge pursuant to article 19339V.T.C.S., or transfer it to the districtcourt pursuant to section 5 of theprobateCode, provided the requirements of therelevant statute are satisfied. Article 1934,V.T.C.S., and artde 30.03, section 2 ofthe Code of Criminal Procedure are notin conflict. Each provides a permissibleprocedure for temporarily replacing anabsent or dibabled county judge.3/9/78-A defendant placed on probation afterthe deferral pf proceed~ngs pursuant tosection 4.12 of article 4476-15, V.T.C.S.,the Controlled Substances Act, is not"convicted" for purposes of the fee statutes,and is not hahle for the fees assessedby articles 53.01, 53.06, 1061, and 1064,Code of Criminal Procedure.3/14/78OPEN RECORDS DECISIONS-ATTORNEY GENERALORD-185RQ-1765An mmate's correspondence list is ex-cepted from required public disclosureunder the Open ~ewrds Act,2/21/78I* * *NOTICE * * *ANNOUNCEMENT OFANNUAL MEETINGTCDLA's annual meeting will beheld at the Ft. Worth ConventionCenter on Thursday, June 29th,at 10:OO a.m.MINUTES from page 7Such Directors would also be removedfrom the Board. Additionally the letterwill include a section stating thatBoard members absent from a meetingwould have 10 days to respond to thehome office stating the reason fortheir absence. Further discussion. Itwas suggested that a new item beplaced on the agenda calling for a motionto excuse members from themeeting.President Colvin instructed thehome office staff to do so. The motionwas made by Vmce Pemi that theminutes of the Board Meetings be publishedin the Voice for the Defense.Seconded by Clif Holmes. The motioncarried. Further discussion. It was alsosuggested that an ennual calendar ofBoard meetings be drawn up anddistributed to the Board members.The home office staff was instructedto do so.ADJOURNThere being no further businessPresident Colvin adjourned the meeting.Respectfully submittedCmdy WaltersAdministrative AssistantSCHEDULE IV CHANGEDOn the 24th of February, 1978, pursuantto Section 209(e) of Subchapter 2,Article 4476.15 V.C.S., Fratis L. Duff,Texas Commissioner of Health, orderedSchedule IV, Section 2.06 amended byadding a new substance, Lorazepam. Section2.06, subsection (b) now reads asfollows.(b) Any material, compound, mixture,or preparation which containsany quantity of the following substanceshaving a potential for abuseasso+Sed with a depressant effecton the central nerveas system:(1) Barbital;(2) Chloral betaine;(3) Chloral hydrate;(4) Chlor&azepoxide;(5) Clonazepam;(6) Clorazepate;(7) Diazepam;(8) Ethchlorvynol;(9) Ethinamate;(1 0) Flurazepam;(1 1) Lorazepam,(12) Mebntamate;(13) Meprobamate;(14) Methohexital;(1 5) Methylphenobarbital,(16) Oxazepam;(17) Paraldehyde,(1 8) Petrichloral,(19) Phenobarbital;(20) Prazepam.Apnl1978/VOICE for the Defense

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