in Re Westwood Affiliates, L.L.C.

Opinion issued September 28, 2006. In The Court of Appeals For The First District of Texas NO. 01-06-00471-CV IN RE WESTWOOD AFFILIATES, L.L.C., Relator Original Proceeding on Petition for Writ of Mandamus O P I N I O N By petition for writ of mandamus, Relator, Westwood Affiliates, L.L.C., (“Westwood”), challenges the trial court’s May 3, 2006 order denying Westwood’s motion to compel production of records from the Houston Police Department (“HPD”). In its sole issue, Westwood contends that the trial court abused its discretion by denying Westwood’s motion to compel production and by issuing a protective order because HPD failed to demonstrate an applicable privilege. We conditionally grant this petition for writ of mandamus. Background Carolyn Colomb brought a premises liability action against Westwood. Colomb’s son, Lionel McCoy, was shot and killed outside a retail establishment owned by Westwood. HPD investigated the incident but was unable to identify the assailant. Westwood contends that HPD’s investigatory materials are critical to Westwood’s defense in this civil matter. Westwood served HPD with a subpoena duces tecum requesting “any and all records, reports, correspondence, witness statements, investigation notes, offense reports, and any and all photographs pertaining to [the incident].” HPD objected on the basis that the information is privileged, pursuant to Hobson v. Moore, 734 S.W.2d 340 (Tex. 1987), and the Texas Public Information Act (“TPIA”), as part of an ongoing murder investigation that would be compromised if the information is disseminated. On May 3, 2006, the court denied Westwood’s motion to compel production and issued a protective order, stating that “the records, documents and physical evidence related to the Houston Police Department’s investigation of the murder of Lionel Dwayne McCoy [shall] be protected from the disclosure, release and production requested pursuant to the subpoena issued by Defendant Westwood Affiliates, L.L.C.” Westwood seeks mandamus relief from this order. Standard of ReviewGenerally, the scope of discovery is within the trial court’s discretion. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). However, if the trial court issues a discovery order that constitutes a clear abuse of that discretion and there is no adequate remedy by appeal, mandamus may issue. Id. A trial court abuses its discretion if it acts without reference to guiding rules and principles. Id. Mandamus relief may be appropriate when, inter alia, a “party’s ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of the case,” or when a trial court’s order “disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error.” Id. Motion to Compel Production from HPD Westwood seeks to compel production from HPD, a non-party. A party may compel discovery from a non-party by serving a subpoena requesting production of documents and other tangible items. Tex. R. Civ. P. 205.1. A party is entitled to obtain discovery on any matter that is not privileged and is relevant to the subject matter of the pending action. Id. 192.3(a). A party from whom discovery is sought may resist discovery by asserting and proving an applicable privilege. Id. 193.3; In re E.I. DuPont de Nemours, 136 S.W.3d 218, 223 (Tex. 2004). Westwood served HPD with a “Notice of Intention to Take Deposition by Written Questions” and a subpoena duces tecum requesting “any and all records, reports, correspondence, witness statements, investigation notes, offense reports, and any and all photographs relating to the incident.” HPD objected on the basis that Westwood requested public information that was part of an ongoing investigation and that the information was privileged, pursuant to Hobson, and the law enforcement exception to the TPIA. In Hobson, the Texas Supreme Court concluded that a law-enforcement privilege is recognized in civil litigation. Hobson, 734 S.W.2d at 341 (information about ongoing criminal investigations is privileged from discovery in civil action against police officers). However, as Westwood contends, the Hobson court recognized a statutory law-enforcement privilege in civil litigation based solely upon the Texas Open Records Act (“TORA”). Id. at 340–41. After Hobson, the TORA was renamed the TPIA. See Act of May 22, 1993, 73rd Leg., C.S., ch. 268, §1, 1993 Tex. Gen. Laws 596, recodified by Act of June 17, 1995, 74th Leg., R.S., ch. 1035, §7, 1995 Tex. Gen. Laws 5131, amended by Act of June 20, 1997, 75th Leg., R.S., ch. 1231, §1, 1997 Tex. Gen. Laws 4697, amended by Act of June 11, 2001, 77th Leg., R.S., ch. 474, §6, 2001 Tex. Gen. Laws 920 (current version at Tex. Gov’t Code Ann. §§ 552.001–.353 (Vernon 2004) (amending the chapter heading)). We find no language in Hobson to support HPD’s contention that a law-enforcement privilege was created independently from the existing statutory privilege. In addition, the TPIA was later amended to provide that “a subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil procedure is not considered a request for information under the TPIA.” Tex. Gov’t Code Ann. § 552.0055 (Vernon 2004). Further, the TPIA was amended to provide that it “does not affect the scope of civil discovery under the Texas Rules of Civil Procedure” and “[e]xceptions from disclosure under this chapter do not create new privileges.” Id. § 552.005. Hence, Westwood’s notice of deposition by written questions and subpoena duces tecum did not trigger the TPIA. See Tex. R. Civ. P. 205.1. Moreover, Westwood did not formally request the information under the TPIA and did not move to compel production pursuant to the TPIA. In its response to Westwood’s petition for writ of mandamus, HPD concedes that “[t]he Texas Public Information Act is not applicable because the request for documents was issued pursuant to a subpoena duces tecum” and because the TPIA “does not affect the scope of civil discovery.” We conclude that Hobson did not create an independent law-enforcement privilege and, rather, applied the existing statutory privilege in the TORA. Subsequent to Hobson, the TORA was recodified as the TPIA. Because HPD now concedes that the TPIA is inapplicable in the instant case, we conclude that HPD failed to meet its burden to prove an applicable privilege. See E.I. DuPont de Nemours, 136 S.W.3d at 223. ConclusionWe hold that the trial court abused its discretion in concluding that HPD’s documentary evidence and photographs are privileged and protected from discovery. We conditionally grant Westwood’s petition for writ of mandamus, and we direct the trial court to vacate its May 3, 2006 order. We are confident that the trial court will promptly comply, and our writ will issue only if it does not. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Keyes, and Hanks.