Does a Texas DA's office have to turn over information from its civil cases to a criminal defendant?

Plain-English summary

Some Texas prosecutor offices handle both civil and criminal work. Tarrant County has a criminal district attorney who, in place of a separate county attorney, performs both civil and criminal duties. The Tarrant County Criminal District Attorney asked the AG how the criminal discovery statute, Code of Criminal Procedure article 39.14, applies when her office's civil attorneys obtain information that later becomes relevant to a criminal prosecution by the same office. She raised three scenarios: representing individuals seeking protective orders, representing the state child-welfare agency in parental-termination suits, and defending a county official sued by a former employee. In each, the same facts could later support a criminal charge, and the civil work might involve attorney-client privileged or statutorily confidential information.

The AG first addressed whether the civil attorneys count as "the State" whose knowledge is charged to the prosecutor. Article 39.14's disclosure duty grows out of the constitutional rule of Brady v. Maryland, which the U.S. Supreme Court decided in 1963 and which Texas courts say article 39.14 codifies. Under Brady, a prosecutor's office is treated as a single entity, the prosecutor has a duty to learn of favorable evidence known to others acting on the government's behalf, and "the State" includes other lawyers in the office. A Texas appellate court has rejected the idea that attorneys in a different division of the same office fall outside the "prosecution team." Given that, the AG concluded a court would likely impute an assistant criminal district attorney's knowledge to the prosecutor as "the State" for article 39.14 purposes, no matter which internal division the assistant works in.

The AG then separated the two parts of the statute. Article 39.14(a) requires producing certain tangible items that are material and "not otherwise privileged," so an item covered by (a) that is protected by attorney-client privilege is exempt from disclosure. Article 39.14(h), by contrast, requires the state to disclose any exculpatory, impeachment, or mitigating document, item, or information, and it applies "notwithstanding any other provision" of article 39.14, with no privilege exception. Both before and after the Legislature added (h) in 2013, Texas courts have recognized that the Brady duty can override an evidentiary privilege. So the AG concluded a court would likely require disclosure of exculpatory information meeting (h)'s requirements even when it is attorney-client privileged.

Finally, the AG addressed Family Code confidentiality for child-abuse investigation records, which civil attorneys might obtain while representing the child-welfare agency. Section 261.201 makes that information confidential but lets a court order disclosure, after in camera inspection, when it is essential to the administration of justice. Because article 39.14(a) is expressly subject to those Family Code restrictions, the (a) duty is not triggered for such records except by court order under section 261.201(b) or (c). And although (h) has no similar qualifier, courts have held that submitting child-abuse records to in camera inspection protects the defendant's fair-trial interest, so the AG concluded that exculpatory information made confidential by section 261.201 must be disclosed only by court order under 261.201(b) or (c).

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The criminal district attorney who requested the opinion: The AG concluded that an assistant's civil-side knowledge is likely imputed to the prosecutor as "the State" under article 39.14 regardless of division; that 39.14(a)'s document duty does not reach attorney-client privileged items but 39.14(h)'s exculpatory-information duty does; and that child-abuse records confidential under Family Code section 261.201 are disclosed only by court order under 261.201(b) or (c).

Combined civil-criminal prosecutor offices (as the opinion described their position): The opinion treated the office as one entity for Brady purposes, so an internal civil-criminal division does not shield civil-side information from the article 39.14 disclosure analysis.

Criminal defendants and defense counsel: The opinion described article 39.14(h) as reaching exculpatory, impeachment, or mitigating information even when privileged, while explaining that confidential child-abuse records reach the defense through the section 261.201 court-order and in camera process rather than automatically.

Common questions

If the DA's civil division has helpful evidence, can the criminal division ignore it?
No, the AG concluded. A court would likely treat the whole office as "the State," so an assistant's knowledge is imputed to the prosecutor regardless of which division holds the information.

Does attorney-client privilege keep exculpatory information from the defendant?
Not under article 39.14(h), the AG concluded. That subsection requires disclosure of exculpatory, impeachment, or mitigating information notwithstanding any other provision and contains no privilege exception, even though 39.14(a)'s document duty does exempt privileged items.

What about confidential child-abuse investigation records?
Those are confidential under Family Code section 261.201, the AG explained, and are disclosed only by court order after in camera inspection under subsection 261.201(b) or (c), for both the 39.14(a) and 39.14(h) duties.

Why does article 39.14(h) reach more than 39.14(a)?
The AG noted that 39.14(a) applies only on a defendant's request and only to tangible items not otherwise privileged, while 39.14(h) applies whether or not the defendant asks and reaches "information" broadly, with no privilege carve-out.

Background and statutory framework

Tarrant County elects a criminal district attorney who acts in place of a county attorney and performs the duties of both county and district attorneys in civil and criminal matters (Tex. Const. art. V, § 21; Tex. Gov't Code § 44.320(b); Neal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App.-Texarkana 1948, writ ref'd)). The civil scenarios involved protective orders, parental-termination suits, and defense of a county official (Tex. Fam. Code §§ 81.007, 161.001). Article 39.14 governs criminal discovery: subsection (a) requires producing specified material items "not otherwise privileged" on a timely request, subject to Family Code section 264.408 and article 39.15; subsection (h) requires disclosure of any exculpatory, impeachment, or mitigating document, item, or information, notwithstanding any other provision (Tex. Code Crim. Proc. art. 39.14(a), (h); art. 39.15). The Legislature added subsection (h) in 2013 (Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106).

Article 39.14's duty grows out of Brady v. Maryland, 373 U.S. 83, 87 (1963), which Texas courts say the statute codifies (Ex parte Vasquez, 499 S.W.3d 602, 626 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd)). Under Brady and its progeny, a prosecutor's office is one entity, information held by one attorney is attributed to the office, and the prosecutor must learn of favorable evidence known to others acting for the government (Giglio v. United States, 405 U.S. 150, 154 (1972); Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. Bagley, 473 U.S. 667, 676 (1985); United States v. Agurs, 427 U.S. 97, 110-11 (1976)). "The State" includes other lawyers in the office, and the prosecution-team analysis is case by case (Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012); United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979); State v. Moore, 240 S.W.3d 324, 328 (Tex. App.-Austin 2007, pet. ref'd)). A Texas court rejected the view that a separate division within an office is outside the prosecution team (Hall v. State, 283 S.W.3d 137, 170-71 (Tex. App.-Austin 2009, pet. ref'd)). The attorney-client privilege protects confidential communications made to facilitate legal services (Tex. R. Evid. 503(a)(5), 503(b)(1); Tex. Dep't of Mental Health & Mental Retardation v. Davis, 775 S.W.2d 467, 472 (Tex. App.-Austin 1989, orig. proceeding)), but the Brady duty can override an evidentiary privilege (Ex parte Miles, 359 S.W.3d at 670).

On child-abuse records, section 261.201 makes investigation information confidential while allowing court-ordered disclosure after in camera review when essential to the administration of justice, and article 39.14(a) is expressly subject to Family Code section 264.408, which incorporates 261.201 (Tex. Fam. Code §§ 261.201(a)-(c), 264.408(b)). The U.S. Supreme Court and the Texas Court of Criminal Appeals have held Brady does not give unlimited access and that in camera inspection protects the defendant's fair-trial interest (Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987); Thomas v. State, 837 S.W.2d 106, 113-14 (Tex. Crim. App. 1992); Fears v. State, 479 S.W.3d 315, 329 (Tex. App.-Corpus Christi 2015, pet. ref'd)).

Citations

Statutory and rule provisions:

• Tex. Const. art. V, § 21
• Tex. Code Crim. Proc. art. 39.14(a), (h); art. 39.15
• Tex. Gov't Code § 44.320(b)
• Tex. Fam. Code §§ 81.007, 161.001, 261.201(a)-(c), 264.408(b)
• Tex. R. Evid. 503(a)(5), 503(b)(1)
• Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106

Cases:

• Brady v. Maryland, 373 U.S. 83, 87 (1963)
• United States v. Bagley, 473 U.S. 667, 676 (1985)
• United States v. Agurs, 427 U.S. 97, 110-11 (1976)
• Giglio v. United States, 405 U.S. 150, 154 (1972)
• Kyles v. Whitley, 514 U.S. 419, 437 (1995)
• Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987)
• Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012)
• Thomas v. State, 837 S.W.2d 106, 113-14 (Tex. Crim. App. 1992)
• United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979)
• Ex parte Vasquez, 499 S.W.3d 602, 626 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd)
• Hall v. State, 283 S.W.3d 137, 170-71 (Tex. App.-Austin 2009, pet. ref'd)
• State v. Moore, 240 S.W.3d 324, 328 (Tex. App.-Austin 2007, pet. ref'd)
• Neal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App.-Texarkana 1948, writ ref'd)
• Tex. Dep't of Mental Health & Mental Retardation v. Davis, 775 S.W.2d 467, 472 (Tex. App.-Austin 1989, orig. proceeding)
• Fears v. State, 479 S.W.3d 315, 329 (Tex. App.-Corpus Christi 2015, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0213
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0213.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 24, 2018

The Honorable Sharen Wilson Opinion No. KP-0213
Tarrant County Criminal District Attorney
401 West Belknap Re: Obligations of a criminal district attorney
Fort Worth, Texas 76196 under Code of Criminal Procedure article 39.14
to disclose to a defendant information obtained
by the criminal district attorney during the
performance of certain civil duties
(RQ-0215-KP)

Dear Ms. Wilson:

     You ask several questions regarding the disclosure obligations of your office under article

39.14 of the Code of Criminal Procedure, which governs discovery in a criminal proceeding. [1] See
TEX. CODE CRIM. PROC. art. 39.14. As background, you tell us that your office handles both civil
and criminal matters. [2] See Request Letter at 1-2. You set forth three specific scenarios involving
your office's civil representation of (1) individuals seeking protective orders under section 81.007
of the Family Code; (2) the Department of Family and Protective Services (the "Department") in
parental termination proceedings brought under section 161.001 of the Family Code; and (3) a
county official in a civil lawsuit brought by a former employee. See id. at 1-3. You explain that
in all three scenarios, the same set of facts underlying the civil representation can later form the
basis for a criminal complaint and prosecution by your office. Id. At the same time, you note that
the civil representation may involve information protected by the attorney-client privilege or made
confidential under statute, and you question whether such information would be subject to
disclosure under article 39.14. Id. at 2-3. Your scenarios focus on subsections (a) and (h) of
article 39.14, which provide in relevant part:

             (a) Subject to the restrictions provided by Section 264.408, Family
             Code, and Article 39.15 of this code, as soon as practicable after
             receiving a timely request from the defendant the state shall produce
             ... any offense reports, any designated documents, papers, written
             or recorded statements of the defendant or a witness, including
             witness statements of law enforcement officers but not including the
             work product of counsel for the state in the case and their
             investigators and their notes or report, or any designated books,
             accounts, letters, photographs, or objects or other tangible things not
             otherwise privileged that constitute or contain evidence material to
             any matter involved in the action and that are in the possession,
             custody, or control of the state or any person under contract with the
             state . ... The rights granted to the defendant under this article do
             not extend to written communications between the state and an
             agent, representative, or employee of the state . ...

             (h) Notwithstanding any other provision of this article, the state
             shall disclose to the defendant any exculpatory, impeachment, or
             mitigating document, item, or information in the possession,
             custody, or control of the state that tends to negate the guilt of the
             defendant or would tend to reduce the punishment for the offense
             charged.

TEX. CODE CRIM. PROC. art. 39.14(a), (h) (emphasis added). The duty of disclosure in article
39.14, by its terms, devolves upon "the State." Id. In connection with your second and third
scenarios, you question the extent to which the civil attorneys in your office qualify as "the State,"
such that their knowledge of information may be imputed to the prosecutor for purposes of article
39.14. Request Letter at 1-3. Because this threshold question underlies all three scenarios, we
address it first.

    The duty of disclosure created under article 39.14 stems from the independent

constitutional right of access to exculpatory evidence provided under the 1963 U.S. Supreme Court
decision Brady v. Maryland and its progeny. [3] Texas courts generally recognize that article 39.14
"codif[ies] [the] State's affirmative duty under Brady." Ex parte Vasquez, 499 S.W.3d 602, 626
(Tex. App.-Houston [1st Dist.] 2016, pet. ref'd). Accordingly, we consider Brady's analysis
instructive. In the context of the State's duty to disclose exculpatory material under Brady, a
"prosecutor's office is an entity," and information in possession of one attorney "must be
attributed" to the office as a whole. Giglio v. United States, 405 U.S. 150, 154 (1972). Prosecutors
must not only disclose information personally known to them but also have "a duty to learn of any
favorable evidence known to the others acting on the government's behalf in the case, including
the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). For purposes of Brady, "'the State'
includes, in addition to the prosecutor, other lawyers and employees in his office and members of
law enforcement connected to the investigation and prosecution of the case." Ex parte Miles, 359
S.W.3d 647, 665 (Tex. Crim. App. 2012); see also United States v. Antone, 603 F.2d 566, 570 (5th
Cir. 1979) (finding that the knowledge of state agents cooperating with federal agents on a case
"must be imputed to the federal team"). [4] Thus, the judicial concept of a "prosecution team" under
Brady generally provides that "the State" extends beyond the individual prosecutor to other
members of his or her office and can include outside entities depending on the context and
circumstances. See Antone, 603 F.2d at 570 (adopting a case-by-case analysis of the extent of
interaction and cooperation between various entities working together on a case to determine due
process requirements).

     In the present context we are faced not with separate entities but, rather, a single

prosecutor's office housing civil and criminal attorneys, each pursuing individual duties. At least
one Texas appellate court rejected outright the notion that attorneys in separate divisions within a
prosecutor's office could constitute nonmembers of the prosecution team, despite pursuing
unrelated actions not known to the other divisions. See Hall v. State, 283 S.W.3d 137, 170-71
(Tex. App.-Austin 2009, pet. ref'd) (finding "no support" for the State's position that only the
Brady materials known to employees in the division prosecuting the defendant must be disclosed).
In the present scenario, an attorney's association with civil duties rather than criminal ones does
not change the fact that he or she is a member of the prosecutor's office. And it remains the case
that courts hold prosecutors to a high standard in their accountability for the due process
obligations of their offices. See Giglio, 405 U.S. at 154 (stating that nondisclosure of Brady
material, "whether [by] negligence or design ... is the responsibility of the prosecutor"); Ex parte
Miles, 359 S.W.3d at 665 (stating that the duty to disclose Brady material exists "[e]ven if the
prosecutor was not personally aware of the evidence"). Given the lack of authority otherwise
considering the "prosecution team" analysis within a single agency and the broad responsibility
placed on prosecutors in a Brady due process context, a court would likely conclude that the
knowledge of an assistant criminal district attorney is imputed to the prosecutor as "the State" for
purposes of article 39.14 of the Code of Criminal Procedure regardless of internal division
affiliation.

   Next, we consider the effect of the attorney-client privilege [5] and statutory confidentiality

provisions you identify on the disclosure obligations of subarticles (a) and (h) of article 39.14.
Subarticle 39.14(a) requires the production of specified tangible items "that constitute or contain
evidence material to any matter involved in the action and that are in the possession, custody, or
control of the state" that are "not otherwise privileged." [6] TEX. CODE CRIM. PROC. art. 39.14(a).
Thus, to the extent information obtained by the assistant criminal district attorney constitutes an
item described by subarticle 39.14(a) but is protected by attorney-client privilege, the plain
language of subarticle 39.14(a) would exempt its disclosure to the defendant.

    Subarticle 39.14(h), however, contains no exception for privileged items. Instead, it

applies to "any exculpatory, impeachment, or mitigating document, item, or information in the
possession, custody, or control of the state that tends to negate the guilt of the defendant or would
tend to reduce the punishment for the offense charged," and it applies "[n]otwithstanding any other
provision" of article 39.14. [7] Id. art. 39.14(h). Prior to the Legislature's adoption [8] of subarticle (h)
in 2013, the Texas Court of Criminal Appeals concluded that "the duty to reveal material
exculpatory evidence as dictated by Brady overrides" an evidentiary privilege that would
otherwise have protected documents from discovery under subarticle 39.14(a). Ex parte Miles,
359 S.W.3d at 670. Since subarticle 39.14(h)'s enactment, one court has twice acknowledged that
the presence of exculpatory information in an otherwise privileged context triggers the obligations
of subarticle 39.14(h). See Bass v. State, Nos. 09-16-00144-CR, 09-16-00145-CR, 2017 WL
3081099, at 2 (Tex. App.-Beaumont July 19, 2017, pet. ref'd) (mem. op., not designated for
publication) (stating that "exculpatory information ... would trigger the exception contained in
subsection (h) of article 39.14"); In re State, Nos. 09-15-00192-CR, 09-15-00193-CR, 2015 WL
7566519, at 2 (Tex. App.-Beaumont Nov. 25, 2015, orig. proceeding) (mem. op., not designated
for publication) (citing to 39.14(h) for the proposition that "[i]f a privilege applies, article 39.14(a)
does not apply and discovery will only be required if the recording is exculpatory"). Given the
plain language of the statute and the judicial recognition that evidentiary privileges can fall in the
face of Brady material, a court would likely conclude that any exculpatory information obtained
by an assistant criminal district attorney acting in a civil capacity that meets the requirements of
subarticle 39.14(h) must be disclosed to the defendant, notwithstanding an attorney-client or other
evidentiary privilege.

    With respect to statutory confidentiality, you identify section 261.201 of the Family Code,

which pertains to certain information relating to the investigation of suspected child abuse or
neglect, information you tell us that civil attorneys in your office may obtain while representing
the Department in parental termination proceedings. Request Letter at 3. Section 261.201
provides that certain information "is confidential . . . and may be disclosed only for purposes
consistent with [the Family Code] and applicable federal or state law or under rules adopted by an
investigating agency." TEX. FAM. CODE § 261.201(a). Nonetheless, subsections 261.201(b) and
(c) permit a court to disclose information made confidential under section 261.201 if it determines
that the information is "essential to the administration of justice" and if certain other requirements,
including in camera inspection, are met. [9] Id. § 261.201(b), (c). The duty of disclosure in subarticle
39.14(a) of the Code of Criminal Procedure, by its own terms, is "[s]ubject to the restrictions
provided by Section 264.408 [of the] Family Code." TEX. CODE CRIM. PROC. art. 39.14(a). Section
264.408 of the Family Code provides that "[i]nformation related to the investigation of a report of
abuse or neglect . . . is confidential as provided by Section 261.201." TEX. FAM. CODE
§ 264.408(b). Thus, to the extent that information obtained by a civil attorney in your office is
confidential under section 261.201 of the Family Code, the duty of disclosure in subarticle 39.14(a)
would not be triggered except pursuant to court order obtained under subsection 261.201(b) or (c).

     Subarticle 39.14(h) contains no similar qualifying language. Yet, courts recognize "[t]he

conflict that can arise between the State's need to keep information related to child abuse
investigations confidential [and] a defendant's need for a fair trial" under Brady. Fears v. State,
479 S.W.3d 315, 329 (Tex. App.-Corpus Christi 2015, pet. ref'd). Both the United States
Supreme Court and the Texas Court of Criminal Appeals have rejected the notion that Brady
entitles a defendant to unlimited access to information from the State. See Pennsylvania v. Ritchie,
480 U.S. 39, 59 (1987); Thomas v. State, 837 S.W.2d 106, 113-14 (Tex. Crim. App. 1992).
Instead, those courts have held that submission to an in camera inspection by a trial court protects
a defendant's interest in a fair trial. Ritchie, 480 U.S. at 60; Thomas, 837 S.W.2d at 114. At least
one Texas court noted that "section 261.201 provides for exactly the type of procedure approved
in Ritchie and Thomas: an in camera inspection of the material by the trial judge, and an ongoing
duty to disclose any confidential material that is relevant or becomes relevant during the course of
the trial." Fears, 479 S.W.3d at 330. Thus, a court would likely conclude that any exculpatory
information obtained by an assistant criminal district attorney that meets the requirements of
subarticle 39.14(h) but that is made confidential by section 261.201 shall be disclosed only
pursuant to court order obtained under subsection 261.201(b) or (c).

                                  SUMMARY

                   A court would likely conclude, as one appellate court already
          has, that the knowledge of an assistant criminal district attorney is
          imputed to the prosecutor as "the State" for purposes of article 39.14
          of the Code of Criminal Procedure regardless of internal division
          affiliation.

                  To the extent information provided to an assistant criminal
          district attorney acting in a civil capacity constitutes an item
          described by subarticle 39.14(a) but is protected by the attorney-
          client privilege, the plain language of subarticle (a) would exempt
          its disclosure to the defendant. However, a court would likely
          conclude that any exculpatory information meeting the requirements
          of subarticle 39.14(h) obtained by such an attorney must be
          disclosed to the defendant, notwithstanding any attorney-client or
          other evidentiary privilege.

                  To the extent that information obtained by an assistant
          criminal district attorney acting in a civil capacity is confidential
          under section 261.201 of the Family Code, any duty of disclosure in
          subarticle 39.14(a) of the Code of Criminal Procedure would not be
          triggered except pursuant to court order obtained under subsection
          261.201(b) or (c). A court would likely conclude that any
          exculpatory information obtained by an assistant criminal district
          attorney that meets the requirements of subarticle 39.14(h) but that
          is made confidential by section 261.201 shall be disclosed only
          pursuant to court order obtained under subsection 261.201(b) or (c).

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Sharen Wilson, Tarrant Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-4 (Mar. 14, 2018), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Tarrant County has a criminal district attorney rather than a county attorney and a district attorney. TEX. CONST. art. V, § 21 (providing for the election of a county attorney only "for counties in which there is not a resident Criminal District Attorney"). In such instances, "[a] resident criminal district attorney acts in lieu of the county attorney and necessarily would perform the duties of the county attorney in both civil and criminal matters." Neal v. Sheppard, 209 S.W.2d 388, 390 (Tex. Civ. App.-Texarkana 1948, writ ref'd); see also TEX. GOV'T CODE § 44.320(b) (providing generally that the "criminal district attorney has all the powers, duties, and privileges in Tarrant County that are conferred by law on county and district attorneys").

[3] Brady held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963); see also United States v. Bagley, 473 U.S. 667, 676 (1985) (determining that Brady includes exculpatory and impeachment evidence), United States v. Agurs, 427 U.S. 97, 110-11 (1976) (holding that the duty to disclose exculpatory evidence is not limited to cases in which the defense makes a request for the evidence).

[4] See also State v. Moore, 240 S.W.3d 324, 328 (Tex. App.-Austin 2007, pet. ref'd) (finding no basis to impute to the prosecutors any knowledge of an uninvolved and unrelated outside investigation of a witness by the Texas Attorney General's office).

[5] The attorney-client privilege generally protects only "confidential communications made to facilitate the rendition of professional legal services to the client." TEX. R. EVID. 503(b)(1). "A communication is 'confidential' if not intended to be disclosed to third persons other than those: (A) to whom the disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication." Id. 503(a)(5). But "[n]ot all statements made by a client to an attorney are privileged." Tex. Dep't of Mental Health & Mental Retardation v. Davis, 775 S.W.2d 467, 472 (Tex. App.-Austin 1989, orig. proceeding). "Before a communication to an attorney will be protected, it must appear that the communication was made by a client seeking legal advice from a lawyer in his capacity as such," and "the communication must relate to the purpose for which the advice is sought, and the proof, express or by circumstances, must indicate a desire in the client for confidence and secrecy." Id. at 472-73.

[6] The tangible items include "offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness" (but not the work product, notes or report of the State's counsel or their investigators), "designated books, accounts, letters, photographs, or objects." TEX. CODE CRIM. PROC. art. 39.14(a). The duty to produce the items covered by subarticle 39.14(a) is triggered by "a timely request from the defendant." Id. The duty under subarticle (a) is also "[s]ubject to the restrictions provided by" section 264.408 of the Family Code and article 39.15 of the Code of Criminal Procedure, which concern the confidentiality of documents associated with child welfare services and the discovery of certain evidence that constitutes child pornography, respectively. Id. Thus, the actual scope of what must be produced will depend upon the specific request made by the defendant.

[7] Unlike the duty under subarticle 39.14(a), which applies only after receiving a request from a defendant and extends only to tangible items, the duty under subarticle 39.14(h) applies whether or not the defendant makes a request and extends broadly to "information" not necessarily contained in a document or other tangible item. See id. art. 39.14(h).

[8] See Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws, 106, 107 (codified at TEX. CODE CRIM. PROC. art. 39.14(h)).

[9] A court may order disclosure under subsection 261.201(b) upon a motion and notice of hearing served on the investigating agency and interested parties if, after the hearing and an in camera review, "the court determines that the disclosure of the requested information is: (A) essential to the administration of justice; and (B) not likely to endanger the life or safety of" a child who is the subject of the report, the person who makes the report, or any other person participating in the investigation or providing care for the child. TEX. FAM. CODE § 261.201(b)(3). Likewise, a court may order disclosure under subsection 261.201(c) on its own motion at a properly noticed hearing, in writing or on the record in open court, if the court makes the same determination about the information as in subsection 261.201(b).