                                             KEN PAXTON
                                        ATTORNEY GENERAL OF TEXAS



                                             October 19, 2015



The Honorable Sharen Wilson                                Opinion No. KP-0041
Tarrant County Criminal District Attorney
401 West Belknap                                           Re: Discoverability under Brady v. Maryland
Fort Worth, Texas 76196                                    and the Michael Morton Act of recordings of
                                                           inmate telephone calls to which the criminal
                                                           district attorney's office has access without a
                                                           warrant (RQ-0025-KP)

Dear Ms. Wilson:

           You ask about the discoverability of recordings of inmate telephone calls under federal and
  state law. 1 You tell us that Tarrant County (the "County") has a contract with Securus
  Technologies, Inc. ("Securus") under which Securus provides telecommunication services to
 inmates in the county jail facilities. Request Letter at 1. Yoll; inform us that the criminal district
  attorney's office requested the contract require Securus to record telephone calls (except to legal
  counsel) made by inmates from the county jail. Id. The inmates are notified by signs in the jail
· facilities and by a recording when a call is made that their conversations are recorded. See id.

        You tell us that Securus stores these recordings and is the custodian of all call records and
recordings but that the criminal district attorney's investigators can access the recorded calls
without a warrant through an application of Securus. See id. You tell us further that the
investigators provide the recordings to law enforcement agencies upon request without a warrant.'
See id. The contract provides that the County "retain[ s] custody and ownership of all recordings"
and grants to Securus "a perpetual limited license to compile, store, and access recordings of
inmate calls for enumerated purposes." Id. at 2. To comply with state and federal law you ask:

                 (1) Does Brady require the Criminal District Attorney's Office to
                     review recordings of jail-inmate telephone calls that are created
                     and stored on servers owned by a private company as part of its
                     contract with the county to provide telecommunication services
                     and maintenance in order to determine whether such recordings
                     contain exculpatory or impeachment evidence if the Criminal
                     District Attorney's Office has not otherwise exercised its ability
                     to access the recordings without a warrant?




        1
         See Letter and Brief from Honorable Sharen Wilson, Tarrant Cnty. Crim. Dist. Att'y, to Honorable Ken
Paxton, Tex. Att'y Gen. at 1 (May 29, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
The Honorable Sharen Wilson - Page 2        (KP-0041)



               (2) Under the Michael Morton Act, are recordings of jail-inmate
                   telephone calls that are created by and stored on servers owned
                   by a private company as part of its contract with the county to
                   provide telecommunication services and maintenance
                   considered to be in the possession, custody, or control of the
                   State or a person under contract with the State if the Criminal
                   District Attorney's Office does not exercise its ability to access
                   the recordings?

               (3) For purposes of the Michael Morton Act, does the ability of the
                   Criminal District Attorney's Office to access without a warrant
                   recordings· of jail-inmate telephone calls, which are created and
                   stored by a private company under a contract with the county,
                   equate to possession, custody, or control of the recordings by the
                   State or a person under contract with the State?

Id. at 3.

        In 1963, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963),
that "the suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." Id. at 87; 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). A Brady
violation occurs where (1) the prosecution suppressed or withheld evidence, regardless of the
prosecutor's good or bad faith; (2) the evidence would have been favorable to the accused; and
(3) the evidence would have been material to the accused's defense or punishment, in that there is
a "reasonable probability that the suppressed evidence would have produced a different verdict."
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

         Your first question involves the issue of a prosecutor's knowledge of evidence under Brady
and thus implicates the first element. Brady imposes a duty to disclose evidence favorable to the
defendant, but it does not create a "general constitutional right to discovery in a criminal case."
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Nor does Brady require a prosecutor to
independently search for exculpatory evidence. Bagley, 473 U.S. at 675 & n.7. There is no
constitutional requirement that a prosecutor must "make a complete and detailed accounting to the
defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795 (1972).
'_'Brady and its progeny do not require prosecuting authorities to disclose exculpatory information
to defendants that the State does not have in its possession and that is not known to exist." Harm
v. State,.183 S.W.3d403, 407 (Tex. Crim. App. 2006); see also Calleyv. Callaway, 519F.2d184,
223 (5th Cir. 1975) (concluding, in part, that no due process violation occurred where evidence in
dispute was both unavailable to the prosecution and beyond the power of the prosecution to obtain).
And at least one Texas court of appeals has determined that requiring prosecutors to conduct
searches on criminal history databases "exceeds the requirement of Brady because the State would
The Honorable Sharen Wilson - Page 3              (KP-0041)



be required to independently seek out exculpatory evidence on behalf of the defendant." In re
State, 448 S.W.3d 687, 692 (Tex. App.-Eastland 2014, orig. proceeding).

        Yet, Brady does require prosecutors "to learn of Brady evidence known to others acting on
the state's behalf in a particular case." Harm, 183 S.W.3d at 406; see Kyles v. Whitley, 514 U.S.
419, 437-38 (1995) (determining that the duty to disclose encompasses evidence unknown to the
prosecution but known to law-enforcement officials and others acting on the government's behalf).
"Even if the prosecutor [is] not personally aware of the evidence, the State is not relieved of its
duty to disclose because '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."2 Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). "A
prosecutor may not create a wall of ignorance in order to protect himself from the obligations of
Brady." Johnston v. State, 917 S.W.2d 135, 138 (Tex. App.-Fort Worth 1996, writ ref d).

        Under these principles, Brady and its progeny likely do not impose a general duty upon a
prosecutor to listen to all recordings of inmate telephone calls to search for exculpatory evidence
for a defendant if the prosecutor's office would not do so otherwise. See In re State, 448 S.W.3d
at 693 (stating that "access to information does not equate to knowledge that the information
exists"). But to the extent the investigators and other employees of a prosecutor's office listen to
any recorded inmate telephone call, Brady does impose a duty upon the prosecutor to discover
whether investigators and employees found evidence favorable to a defendant in the recordings
and, if so, to disclose that evidence to the defendant. The fact that the recordings are held by a
third party vendor pursuant to a contract with the County does not absolve a prosecutor of the duty
to make him or herself aware of what investigators and law enforcement officials discover.

        Unlike your first question, which asked about a duty under article 39.14, your second and
third questions both ask about access: whether the ability of a criminal district attorney's office,
even if unexercised, to access recordings of inmate calls without a warrant results in the recordings
being subject to article 39.14 of the Code of Criminal Procedure. 3 See Request Letter at 3.
Significantly amended in 2013 by the Michael Morton Act, article 39.14 governs the state's duties
of disclosure of evidence in a criminal case. See SENATE COMM. ON CRIM. JUSTICE, BILL
ANALYSIS, Tex. S.B. 1611, 83rd Leg., R.S. (2013). Subarticle 39.14(a) provides that

                 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


         2
           Courts have found a "prosecution team" consisted of cooperating state and federal agencies such that
 evidence known by the state team was "imputed to the federal team." United States v. Antone, 603 F.2d 566, 569-
 70 (5th Cir. 1979). Similarly, a prosecutor was imputed with the knowledge of witness statements in the custody of
 the county sheriffs office. See Ex parte Mitchell, 853 S.W.2d 1, 3--4 (Tex. Crim. App. 1993).

         3Because   under subarticle 39.14(a)'s plain language a duty is triggered by "a timely request from the
 defendant," the question whether a duty, if any, arises to disclose evidence will depend upon the specific request
 received from the defendant. TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West Supp. 2014).
The Honorable Sharen Wilson - Page 4                 (KP-0041)



                  enforcement officers ... 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.

TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West Supp. 2014). Key to addressing your questions
is the scope of the phrase "possession, custody, or control of the state."

         Subarticle 39.14(a) requires a criminal district attorney's office, as a representative of the
state, to produce the material, disclosable evidence that is in the criminal district attorney's
"possession, custody, or control." Id; see also id. art. 2.01 (West 2005) (providing that district
attorneys represent the state in criminal matters); TEX. Gov'TCODEANN. § 44.320(a) (West 2004)
(providing the criminal district attorney in Tarrant County with all of the powers of district
attorneys). Article 39.14 itself does not define "possession, custody, or control." See generally
TEX. CODE CRIM. PROC. ANN. art. 39.14(a)-(n) (West Supp. 2014). Yet, in the analogous context
of civil discovery, the Texas Supreme Court has said that the phrase "[p]ossession, custody or
control of an item means that the person either has physical possession of the item or has a right
to possession of the item that is equal or superior to the person who has physical possession of the
item." In re Kuntz, 124 S.W.3d 179, 181(Tex.2003) (quoting Rule 192.7(b), Texas Rules of Civil
Procedure). "The right to obtain possession is a legal right based upon the relationship between
the party from whom a document is sought and the person who has actual possession of it." GTE
v. Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (construing predecessor to
Rule 192.7, Texas Rules of Civil Procedure).

        You do not tell us that your office has a legal right to access these recordings, only that you
may· do so without a warrant. See Request Letter at 1-2. Whether any given criminal district
attorney's office has possession, custody, or control of the recordings of inmate telephone calls
will depend on the relationship between the criminal district attorney's office and the entity making
the recordings. Such a determination would likely require the construction of the contract that
governs the recordings, and construction of a contract is beyond the scope of an attorney general
opinion. See Tex. Att'y Gen. Op. No. GA-0725 (2009) at 1 ("This office does not construe
particular contracts or contract provisions."). But a contract that provides unfettered access to
inmate recordings could be considered by a court as evidence in support of the criminal district
attorney's office having possession, custody, or control of inmate telephone call recordings. 4 As
you ask only about access and not about your duty under article 39.14, we do not address whether
it imposes any duty on your office under the circumstances you describe.




          4
           The parties to such a contract could revise the contract to alter the procedure by which a prosecutor's office
 accesses the recordings and the corresponding amount of control given to a prosecutor's office.
The Honorable Sharen Wilson - Page 5        (KP-0041)



                                         SUMMARY

                      Brady v. Maryland and its progeny do not impose a general
              duty upon a prosecutor to listen to all recordings of inmate telephone
              calls held by the county telecommunications provider to search for
              exculpatory evidence for a defendant ifthe prosecutor would not do
              so otherwise. To the extent the investigators and other employees
              of the prosecutor listen to any recorded inmate telephone call, Brady
              does impose upon the prosecutor a duty to discover whether the
              investigators and employees find evidence favorable to a defendant
              in the recordings and, if so, to disclose that evidence to the
              defendant.

                     Considering the Texas Supreme Court's definition of
              "possession, custody, or control" in an analogous context, a court
              construing the phrase in article 39.14 of the Code of Criminal
              Procedure would have a basis on which to determine that a contract
              providing a criminal district attorney's office with unfettered access
              to recordings of inmate telephone calls gives the criminal district
              attorney's office possession, custody, or control of the recordings.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
