Gathering records is the first step of the writ process. The process can sometimes be tedious and frustrating.
Thankfully, there is a method to the madness. In this blog post, we will provide details on how to navigate those waters.
The records that you want to obtain are:
- The record on appeal.
- The defense file.
- The state’s file.
Let’s discuss each of those in turn.
1. Record on Appeal
This consists of two pieces, the clerk’s record, and the reporter’s record. Your first place to go to obtain these is the appellate attorney. Additionally, the best way to request this is your loved one requesting via a letter saying “I would like to request my file,” or, “I would like to request the appellate record in my case.”
What if the appellate attorney doesn’t have it?
However, there are instances when the appellate attorney does not have it. An example of this could be if it’s an older case and it has since been destroyed.
If this is the case, then you can ask the district clerk for the clerk’s record. Keep in mind, however, that there will likely be costs associated with getting the records that way. Whereas if you get it from the appellate attorney, it’s free.
Requesting via the Court of Appeals
If, for some reason, the district clerk or the reporter is too expensive, you can also request the record directly from the Court of Appeals. In Texas, there are 14 Courts of Appeals Texas.
Whichever one your loved one’s case was appealed to, go to that court, request the record in the same way, and you’ll speak to the clerk or someone who deals with records in that court.
2. Defense File
Again, you’ll want a letter from your loved one because they are the client, or they were the client, so they’re requesting their own file from the defense attorney. The letter must be provided to the defense attorney.
Also, the attorney may request a flash drive or a blank CD where they can place the files, especially if they are large and cannot be sent via email.
3. State File
The state’s file is where the open records requests come in. In here you can request dashcam footage or bodycam footage, search warrants, police reports — pretty much anything related to the case that way.
So while the police department might have some of those things, the District Attorney’s Office is going to have other things that the police department doesn’t have.
In this case, you will need to send a letter to the DA’s office of the county of conviction and request through an open records request, which is Texas Government Code Chapter 552. You can also submit the open records request through an online form in that county if available. Additionally, the Attorney General’s website has an entire handbook on open records requests.
Moreover, after submitting the open records request, be prepared to wait for just a little bit because while there are time limits that are associated with open records requests during this time of COVID, they’re a little more lenient.
Technically, they have 10 business days to either provide you with the records or seek an Attorney General’s opinion. That has been increased to basically as long as they need if they’re running on a skeleton crew or there are certain caveats that the Attorney General has put in place since COVID.
Attorney General’s Opinion
If the state does seek an Attorney General’s opinion, that will prolong the gathering records process.
This is because they may ask the Attorney General, “Must I provide these records to this requester? Or is there a statute that precludes me from doing so?” You as the requester will also be provided with a letter from the Attorney General that explains his position on the matter.
Likely, you will get some records but they might be redacted in some form or fashion. There are certain types of cases, such as those that involve children, where the records won’t be divulged, but it’s worth taking a shot anyway.
About The Attorney
Sarah Durham focuses on and can often be found working on post conviction writs of habeas corpus, including 11.07; new evidence; and other extraordinary writs for post conviction relief. Sarah’s practice focuses on appellate advocacy.
On a given week, she may write a brief to one of the fourteen intermediate courts of appeals throughout Texas or submit a petition for discretionary review to the Texas Court of Criminal Appeals. Sarah also focuses on and can often be found working on post-conviction writs of habeas corpus, including 11.07; new evidence; and other extraordinary writs for post-conviction relief.