in Re: Pauline Chesses and Sun Chesses-Szabos , 388 S.W.3d 330 ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
'
' No. 08-11-00285-CV
IN RE: PAULINE CHESSES and
SUN CHESSES-SZABOS, ' AN ORIGINAL PROCEEDING
Relators. ' IN MANDAMUS
'
'
OPINION
This is a discovery dispute amidst a will contest. Relators Pauline Chesses and Sun
Chesses-Szabos filed a petition for writ of mandamus, arguing that Respondent, the Honorable
Judge Eduardo Gamboa of Probate Court Number Two, clearly abused his discretion by: (1)
refusing to order the disclosure of the Adult Protective Services (APS) file regarding Larry
Chesses; and (2) refusing to allow the deposition of the APS case worker. Specifically, Relators
contend that the trial court erred in finding that the disclosure of the APS records is not essential
to the administration of justice. We conditionally grant the writ.
FACTUAL SUMMARY
The Early Years
In 1988, Larry Chesses executed a will which appointed Pauline Chesses, his daughter, as
the executor of his estate. He left $30,000 to Sun Chesses-Szabos, his ex-wife, and the
remainder of his estate to Pauline. Chesses had specifically told Pauline that if something
happened to him, she should call an attorney by the name of William Collins. Over the years,
Chesses and his daughter became estranged. At some point between 2004 and 2006, Pauline cut
off all communication with her father at the recommendation of a therapist.
The New Will
Chesses was admitted to Providence Memorial Hospital on July 9, 2010, for acute renal
failure, altered mental state, and dehydration. The hospital forms inquired of religious
affiliation. Chesses indicated both “Catholic” and “Jewish.” On July 23, while hospitalized,
Chesses executed a Last Will and Testament which left $10,000 to Pauline and nothing to Sun.
The remainder of the estate was divided between the Chabad Lubavitch and B’Nai Zion
congregations, the El Paso Jewish Community Foundation, and the El Paso Community
Foundation. The will appointed Herbert Ehrlich as executor of the estate and his son, William
Ehrlich, as the alternate executor. The estate was valued between $600,000 and $800,000.
Hospital records of July 24 reveal that Chesses was depressed. On the 26th, one of his doctors
noted:
Fairly groomed in a hospital gown in a bed with decreased level of consciousness,
. . . remains with avoidance of the eye contact. Thought process very slow. His
speech is very slow as well, very concrete, somewhat disjointed, remains fairly
confused and disoriented . . . Attention span and concentration fairly limited.
Reality contact seems to be fairly fragile. Cognitive functions are overly
disrupted. Insight and judgment is overly limited.
Pauline’s Story
A nurse named Maria called to tell Pauline of her father’s hospitalization and on July 22,
Pauline, her husband, and Sun arrived in El Paso from Virginia. The trio went straight to the
hospital and learned that Chesses refused to eat and wanted to die. Dr. George Walker-Jackson
advised Pauline that Chesses was not eating, was depressed, and had a growth on his liver.
Pauline visited her father twice each day over the course of four days and returned to Virginia on
July 25. Pauline began trying to reach her father by telephone approximately two weeks later
and spoke with several nurses at different medical facilities, as her father had been moved from
ICU to a private room, from there to a specialty hospital, then back to Providence and another
2
specialty hospital, and finally to hospice. One person, referred to in the record as Mary Ann, told
Pauline that there were “suspicious people” around her father named Herbert Ehrlich and Brian
Lee. Chesses passed away on September 4, although Pauline did not learn of his death until
September 20.
Pauline received a telephone call on November 1 from America Devora, an Adult
Protective Services Specialist. APS had been notified that Chesses was a “hoarder” and Devora
was assigned to investigate. During this conversation, Devora asked Pauline whether she had
been contacted by anyone.
And I said, ‘Well, I visited my dad in the hospital, and someone named Herbert
Ehrlich called me and said that he was the executor.’
And she said, ‘Well, did he tell you that he left you anything?’
And I said, ‘No, he didn’t tell me anything, but he told me that my dad was mad
at me, and that he didn’t even want me to know that he died, but he was a family
man, and as a family man, I should know.’
And what else did she say? She said -- oh. Oh, I was -- something like, ‘I was
worried about that. I’m concerned about this. I was very suspicious around the
activities around your dad and about Herbert Ehrlich.’
And I said, ‘Herbert Ehrlich?’ And I said, ‘Well, that reminds me of a
conversation in the hospital, when I was trying to find my dad, someone else had
mentioned Herbert Ehrlich as being suspicious, and he was, I think, fighting with
someone else as being power of attorney.’
****
And she said my dad told her that Rabbi Greenberg pressured him to sign a will or
-- or, no, to hire Herbert Ehrlich, and that he -- he or both pressured him to sign a
will. He did not want to sign the will. . . . ‘And he wanted everything to go to
you. He said he loved you.’
And I -- and I -- I started crying and I said, ‘But Herbert Ehrlich told me he was
angry at me.’
And she said, ‘No, that’s not true. I cannot believe that. He said that he loved
3
you.’ And then she said, ‘And he -- he had regrets.’
And I said, ‘He was not a good father.’ And I go, ‘Is that what he meant?’
Okay. And then she said, ‘I don’t know. I don’t know.’ She said, ‘All he said
was he had regrets, and he didn’t want to sign this will and he -- he needed me to
find you.’
Devora also told Pauline that she had tried to meet with Ehrlich or talk to him because she was
just trying to do her job. According to Devora, Ehrlich refused to talk to her and would not
return her telephone calls until after Chesses died. After this conversation, Relators contested the
will, alleging Chesses lacked testamentary capacity and alleging Chesses was unduly influenced
by Ehrlich. Relators also sought a declaratory judgment that the purported July 23, 2010 will
was invalid. They claimed that Ehrlich intentionally interfered with their inheritance rights, and
that the Ehlrich Law Firm is vicariously liable for Ehrlich’s wrongful acts.
Brian Lee’s Story
Brian Lee met Chesses in 2001 and regularly played chess with him at the Westside
library. Lee described Chesses as a non-practicing Jew who did not attend temple. When Lee
learned Chesses was in the hospital, he began visiting him. Chesses told him that Rabbi
Greenberg was pressuring him to sign documents that he did not want to sign. Chesses described
himself as a “captive audience” because he could not get out of bed. During one of these visits,
Chesses mentioned giving Lee a power of attorney. Chesses did not discuss his former wife or
his daughter, other than to say they had come to visit and brought a plant for him.
Ehrlich’s Story
Rabbi Yisrael Greenberg of the Chabad Lubavitch congregation and Herbert Ehrlich are
friends who meet nearly every Friday afternoon for Bible studies of the Old Testament. Ehrlich
received a telephone call from the Rabbi on July 14. Rabbi Greenberg mentioned a person in
4
ICU who was asking to have a will written. One of Chesses’ friends had contacted the Rabbi,
albeit without a request from Chesses that he do so. Ehrlich felt some urgency that required him
to go to the hospital. He met with Chesses in ICU and believed the man was not in a condition to
discuss estate matters. He spoke with the Rabbi afterward and promised to go back. Rabbi
Greenberg called Ehrlich again on July 19 to tell him Chesses was doing better. Ehrlich went to
the ICU and asked to speak with the doctor. Dr. Erasto Cortes, an intensive care physician,
appeared and Ehrlich inquired “how [Chesses] was doing, mentally.” Dr. Cortes advised that
Chesses was not yet ready “to discuss things that you’re here for.” Ehrlich asked for the doctor’s
telephone number and called him the next day. Reading from his notes, Ehrlich testified:
Telephone conference with Dr. Cortes -- Erasto Cortes, intensive care doctor.
Stated that Mr. Chesses is not capable of doing a power of attorney, nor is he
capable of doing a will. . . . Mental capacity is improving, but as of this date he
cannot --.
Ehrlich waited a few days and called Dr. Cortes again on July 22.
And I said, I’m calling about Larry Chesses. How is his condition now? And he
said, He’s improved, and you can go down there and do what you have to do.
By mid-morning, Ehrlich was back at ICU. He began asking Chesses about his investments,
bank accounts, furniture, and vehicles. Ehrlich then explained the conversation.
So I said, Well, how do you want to leave your estate? He told me he had
$800,000. And I said, How do you want to leave your estate? And then I asked
him -- I said, Well, how much money -- how much do you want to leave to your
daughter? Because I figured he would say, All of it. But then he told me, I’m
estranged from my daughter. She doesn’t talk to me. And all she wants and my
ex-wife wants is my money. So I said, Well, you have to leave your daughter
something. . . . And he told me, Okay, leave her a dollar.
Ehrlich described how he tried to encourage Chesses to leave more to Pauline by incremental
increases, from $1, to $1,000, to $5,000, and finally to $10,000. As for the remainder of the
estate, Ehrlich said,
5
I’m telling him, if you don’t do anything else, your daughter is going to get all of
that money. . . . He said, No. He said, What can I do with the rest of my money?
And that’s when we started talking about charities.
When Chesses mentioned that he was Jewish, Ehrlich suggested Jewish institutions. The
conversation turned to executors and Chesses told Ehrlich he wanted Brian Lee. Ehrlich asked
about a successor executor and Chesses said there was no one he would trust with it. Then
Chesses asked if Ehrlich would serve if Lee declined. Ehrlich did not know of the prior will, nor
did he ask whether Chesses had one.
He said he didn’t remember. Well, if he didn’t remember then I would have to
send a letter or try to communicate with every lawyer in El Paso and anywhere
else to get it. I didn’t think that was what I was there for.
The meeting lasted about an hour, after which Ehrlich returned to his office and drafted the will.
Ehrlich spoke with Lee later that evening and explained the duties and responsibilities of an
executor.
His response to me was very short. He said, I don’t want to get mixed up with his
family in that regard. I thanked him very much and hung up the phone.
Ehrlich edited the will, naming himself as executor and his son as successor. Brian Lee testified
that he never spoke with Ehrlich. Ehrlich also drafted a medical power of attorney, a statutory
power of attorney, and a living will. The next day, July 23, Ehrlich called the hospital and they
gave him “the green light.” “I wanted to get it executed as soon as possible, because he was
improving and I thought it would be appropriate to do it.” So Ehrlich and his assistant, Ruby
Martinez, drove to the hospital around 2 p.m. He did not know the family was in town, and
Chesses never told him. When the pair arrived at the hospital, Ehrlich asked at the nurses’
station if health care providers on the floor could assist as witnesses. He was told that protocol
no longer permitted it, but they could get two other witnesses from other areas of the hospital.
The two witnesses eventually arrived and there is some indication that one of them did not speak
6
English. Ehrlich had brought his camera and set it up to videotape the execution of the will. He
had never videotaped a will execution before, nor had he used the video function on this
particular camera before. He admitted that he thought Chesses’ daughter might be “dissatisfied.”
Ehrlich asked Chesses three questions but the video feature inexplicably shut off. Ehrlich
described the sequence:
Q: So if I understood, you asked Mr. Chesses, What is your name and address?
And answered you, It’s --
A: Larry Chesses, and then he said something, El Paso, Texas.
Q: 2010?
A: Yeah.
Q: And then you asked him, What is your address?
A: Right.
Q: And on the tape, I don’t believe he answered. Would you agree with that?
A: He didn’t answer clearly, yes.
Q: Are you saying that there’s some answer?
A: Well, I thought there was some answer. But on that particular thing, there is
no answer.
Q: Okay. And so --
A: On your version. And it may be the version. I’m not going to argue with it.
Q: Okay. And that gets back to my question --
A: Right.
Q: -- did he ever answer that question, What is your address?
A: I didn’t ask it again.
Q: Okay. So whatever answer he did or didn’t give is on the tape?
7
A: That is correct.
Q: All right. And then you -- did you reask that question?
A: I did not.
Q: What is your -- okay. And then you asked another question --
A: Yes.
Q: -- to the effect of -- it was a complicated question, so I’m not even going to try
to --
A: You want to know the question I asked?
Q: Please.
A: Would you reconsider giving your daughter more than $10,000 at this time?
Because I can cross out the amount and we can execute the will. Before I was
able to finish that question, he reared up and said, No, as I previously stated. At
that point, I believe that he understood that he was writing his will. He
understood his natural heir. And he understood the assets that he was giving
away to her. And then -- and so I made my determination at that point, an also
when I started reading the will to him, that he had testimonial capacity.
Q: Did you -- after you asked that question --
A: Yes.
Q: -- the third question, did you testify that you then turned to Ruby and said, I’ve
got that on tape?
A: Yes. After I asked the question and he raised up, I said, I got it on tape. But
the tape -- I thought the tape was still going.
The tape was not still going. Ehrlich then asked whether Chesses was ready to go over the will
and began reading it to him, although he did not read it verbatim.
Ehrlich admitted having a telephone conversation with America Devora on September
14, ten days after Chesses’ death. He described her as aggressive and strenuously pursuing
information relating to conversations Ehrlich had with her client. He refused to discuss the
8
matter: “[S]he was prying, and she was accusing me of doing, an accusatory manner that I did
something wrong.” They also discussed testamentary capacity:
She told me that there’s no way that he could do a will. And then I said, Are you
a lawyer? And she said, No. I said -- I asked her then, Do you know what
testamentary capacity is? Well, why would I have to know that she replied, or
something to that effect. I said, Well, if you’re not a lawyer and you don’t
understand testamentary capacity, I don’t think this conversation’s going
anywhere. I didn’t want to waste my time with her. I figured, number one, I
didn’t know why she wanted the information. The man was now dead. The man
had been in the hospital. And she obviously didn’t think much of me because she
wouldn’t be demanding this information from somebody she respected. So I told
her. Let’s terminate this conversation because it’s not going anywhere. And I
normally do that when I get this type of phone call. If you’re not going to be
informative and we’re not going to be able to have a reasonable discussion -- and
then I couldn’t discuss anything with her because it was my client, and he had his
privilege, so I terminated the phone call.
He also described a telephone conversation with Pauline in which he told her Chesses was dead
and where he was buried. He denied telling her that Chesses was angry with her.
THE ISSUE
In its simplest form, the question before this court is whether the APS file and the
testimony of America Devora are essential to the administration of justice. We conclude that
they are.
Standard of Review
To be entitled to mandamus relief, Relators must meet two requirements. In re
Prudential Insurance Co. of America, L.L.C., 148 S.W.3d 124, 135 (Tex. 2004), citing Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992). First, they must show that the trial court clearly
abused its discretion. Prudential, 148 S.W.3d at 135. Second, they must demonstrate that there
is no adequate remedy by appeal. Id.; In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.
2008)(orig.proceeding).
Traditionally, a writ of mandamus was available only to compel the performance of a
9
ministerial act or duty. Walker, 827 S.W.2d at 839. However, mandamus also lies where the
trial court has clearly abused its discretion. Id. at 839-40. A trial court clearly abuses its
discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.
1985).
In addition to the clear abuse of discretion requirement, mandamus will not issue where
there is an adequate remedy at law, such as a normal appeal. State v. Walker, 679 S.W.2d 484,
485 (Tex. 1984). Mandamus is an extraordinary remedy, available only in limited
circumstances; thus, the writ will issue “only in situations involving manifest and urgent
necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth
Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). The requirement that persons seeking
mandamus relief establish the lack of an appellate remedy is a fundamental tenet of mandamus
practice. Id. Nevertheless, “[u]sed selectively, mandamus can ‘correct clear errors in
exceptional cases and afford appropriate guidance to the law without the disruption and burden
of interlocutory appeal.” In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290
S.W.3d 204, 207 (Tex. 2009)(orig.proceeding).
The adequacy of an appellate remedy must be determined by balancing the benefits of
mandamus review against its detriments. Prudential, 148 S.W.3d at 136. The reviewing court
must consider whether mandamus relief will safeguard important substantive and procedural
rights from impairment or loss. Id. We must consider whether mandamus will “allow the
appellate courts to give needed and helpful direction to the law that would otherwise prove
elusive in appeals from final judgments.” Id.; see In re GlobalSantaFe Corp., 275 S.W.3d 477,
483 (Tex. 2008)(orig.proceeding).
10
The Statutes
Chapter 48 of the Texas Human Resources Code relates to investigations and protective
services for elderly and disabled persons. “The purpose of this chapter is to provide for the
authority to investigate the abuse, neglect, or exploitation of an elderly or disabled person and to
provide protective services to that person.” TEX.HUM.RES.CODE ANN. § 48.001 (West
2001). Section 48.101 addresses confidentiality and disclosure of information.
(a) The following information is confidential and not subject to disclosure . . . :
(1) a report of abuse, neglect, or exploitation made under this chapter;
(2) the identity of the person making the report; and
(3) except as provided by this section, all files, reports, records,
communications, and working papers used or developed in an
investigation made under this chapter or in providing services as a result
of an investigation.
TEX.HUM.RES.CODE ANN. § 48.101(a)(West Pamph. 2011). There are, of course,
exceptions allowing for disclosure of the otherwise confidential information under certain
circumstances. See id at § 48.101(b)-(g-1). For example, Section 48.101(c) allows a trial court
to order the disclosure of otherwise confidential information if:
(1) a motion is filed with the court requesting release of the information and a
hearing on that request;
(2) notice of that hearing is served on the department or investigating state agency
and each interested party; and
(3) the court determines after the hearing and an in camera review of the
information that disclosure is essential to the administration of justice and will
not endanger the life or safety of any individual who:
(A) is the subject of a report of abuse, neglect, or exploitation;
(B) makes a report of abuse, neglect, or exploitation; or
(C) participates in an investigation of reported abuse, neglect, or
11
exploitation.
Id. at 48.101(c).1
Section 48.101(b) provides that:
(b) Confidential information may be disclosed only for a purpose consistent with
this chapter and as provided by department or investigating state agency rule and
applicable federal law.
1
The Code also provides that: (d) The executive commissioner shall adopt rules providing for the release, on
request, to a person who is the subject of a report of abuse, neglect, or exploitation or to that person’s legal
representative of otherwise confidential information relating to that report. The department or investigating state
agency shall edit the information before release to protect the confidentiality of information relating to the reporter’s
identity and to protect any other individual whose safety or welfare may be endangered by disclosure.
(d-1) Subject to Subsection (e-1), the executive commissioner shall adopt rules providing for the release, on request,
by the department or investigating state agency of otherwise confidential information relating to a person who is the
subject of a report or investigation of abuse, neglect, or exploitation or to whom the department has provided
protective services, to:
(1) a court that has a matter pending before it that involves the person;
(2) the attorney ad litem or any other legal representative, other than a guardian, appointed for the
person; and
(3) the person’s legal guardian.
(e) The executive commissioner may adopt rules relating to the release of information by the department or
investigating state agency that is contained in the record of a deceased individual who was the subject of an
investigation conducted by the department or investigating state agency or to whom the department has provided
protective services. The rules must be consistent with the purposes of this chapter and any applicable state or
federal law. The executive commissioner shall adopt rules, subject to Subsection (e-1), that provide for the release,
on request, of otherwise confidential information in the deceased person’s record to the personal representative
appointed for the person’s estate.
(e-1) Information released by the department or an investigating state agency under Subsection (d-1) or to a personal
representative under Subsection (e) may not include the identity of the person who made the report of abuse,
neglect, or exploitation.
(f) The department or investigating state agency may establish procedures to exchange with another state agency or
governmental entity information that is necessary for the department, state agency, or entity to properly execute its
respective duties and responsibilities to provide services to elderly or disabled persons under this chapter or other
law. An exchange of information under this subsection does not affect whether the information is subject to
disclosure under Chapter 552, Government Code.
(g) The department may establish procedures to exchange with a community service provider or local governmental
entity confidential information relating to a report made under Section 48.051(a) that is necessary for the
department, provider, or entity to provide protective services, health care services, housing services, or social
services to the person who is the subject of the report. An exchange of information under this subsection does not
affect whether the information is subject to disclosure under Chapter 552, Government Code.
(g-1) The executive commissioner by rule shall provide policies and procedures that are designed to guard against
the unauthorized release or dissemination of confidential information that is exchanged under Subsection (g).
12
Id. at § 48.101(b).
THE INVESTIGATION
We are presented with an initial report of self-neglect by hoarding and a later report of
exploitation. We must thus decide whether an APS specialist may be compelled to produce files
and offer testimony regarding the charges of exploitation. Subsection (e) requires the executive
commissioner to adopt rules that provide for the release, on request, of otherwise confidential
information in the deceased person’s record to the personal representative appointed for the
person’s estate. Here that would be Ehrlich, the individual Devora believed to be guilty of
exploitation. We also look to subsection (d-1), which allows the department to relinquish
confidential information to a court that has a matter pending before it that involves the person.
We then turn to subsection (c-3), which requires the trial court to determine after hearing and an
in camera review whether disclosure is essential to the administration of justice. Judge Gamboa
found it was not.
Although Judge Gamboa was bothered by the way Pauline received the information, we
emphasize at the outset that whether Devora breached confidentiality is not material to our
decision. Subchapter I of the Human Resources Code contains enforcement procedures
encompassing both administrative and judicial review of employee misconduct. We thus reject
Appellees’ argument that any information gleaned from Devora would be “fruit of the poisonous
tree.”
Moreover, as required by the Human Resources Code, the Department of Family
Protective Services has crafted rules related to the confidentiality and integrity of APS case
records. An APS investigator should investigate. Investigation often requires a discussion with
collateral witnesses, called “collaterals” in the APS handbook. Indeed section 5112.12 of the
13
handbook specifies that the APS specialist “may provide collaterals, including the reporter, with
pertinent case information as needed in order to: (1) obtain information necessary for the
investigation; or (2) arrange for services to address abuse, neglect, or exploitation.” Thus, the
sole question is whether disclosure of Devora’s file and her testimony is essential to the
administration of justice.
WHAT IS “ESSENTIAL TO THE ADMINISTRATION OF JUSTICE”?
During oral argument, the real parties in interest focused heavily on the definition of
“essential,” comparing the term to “relevant” and arguing that “essential” required the evidence
be more than merely relevant. We believe the focus should first be on the phrase “administration
of justice” and then what is “essential” to that process.
The Human Resources Code does not define the administration of justice. The phrase
has been bandied about frequently within our statutes, rules, and case law but it is ill-defined.
We have discovered the following analysis:
‘Administration of justice’ has been described thusly: ‘The administration of
justice consists in the trial of cases in the court, and their judicial determination
and disposition by orderly procedure, under rules of law, and putting of the
judgment into effect.’
Howell v. State, 559 S.W.2d 432, 436 (Tex.Civ.App.--Tyler 1977, writ ref’d n.r.e.), citing
Massey v. City of Macon, 97 Ga.App. 790, 794, 104 S.E.2d 518, 521-22 (1958). And the Texas
Court of Criminal Appeals has described the administration of justice as the “daily application of
the law to particular facts.” Matchett v. State, 941 S.W.2d 922, 932 (Tex.Crim.App. 1996). We
adopt these definitions.
“Essential” encompasses the concepts of necessity, importance, indispensable, crucial,
and substantive. Real parties in interest contend, and Judge Gamboa agreed, that the information
14
is available elsewhere and in some instances would be cumulative. These arguments require a
careful cross reference of the evidence which already appears in the record.
We know from Brian Lee that Chesses complained Rabbi Greenberg was pressuring him
to sign documents that he did not want to sign. Chesses described himself as a “captive
audience” because he could not get out of bed. Lee also described Chesses as a non-practicing
Jew who did not attend temple.
From Herbert Ehrlich we know that Rabbi Greenberg, who did not know Chesses until
contacted by a friend, had made his acquaintance at least by July 14, five days after he was
admitted to ICU. When the Rabbi called Ehrlich on July 14 to discuss a person in ICU wanting a
will, Ehrlich went immediately to the hospital and expressed he felt “some urgency” to go right
away. We know that Rabbi Greenberg called Ehrlich again on July 19 to tell him Chesses was
doing better and Ehrlich headed right back to ICU. He spoke with the intensive care physician
and learned that Chesses was still not yet “ready.” Ehrlich asked for the doctor’s telephone
number and called him the next day. The doctor told him Chesses’ mental capacity was
improving but he was still incapable.
Ehrlich waited two more days and when he heard Chesses had improved, he was back at
ICU by mid-morning and discussed with Chesses his estate. On July 23, he was given the “green
light” by the medical staff. He “wanted to get it executed as soon as possible, because he was
improving.” One might infer that Ehrlich wanted to get the will signed before the opportunity
was lost. Ehrlich testified that Chesses wanted Brian Lee to be named as executor of the estate
but that Lee declined. Lee said he never talked to Ehrlich. All of these discrepancies are
available for use at trial without reference to the APS specialist.
15
Ehrlich attempted to videotape the execution of the will, the first time he had ever done
so. The tape inexplicably shut off before Ehrlich asked the big question:
Would you reconsider giving your daughter more than $10,000 at this time?
Because I can cross out the amount and we can execute the will. Before I was
able to finish that question, he reared up and said, No, as I previously stated. At
that point, I believe that he understood that he was writing his will. He
understood his natural heir.
Ehrlich denied telling Pauline that her father was angry with her. America Devora told Pauline a
different story.
When Pauline described how Ehrlich told her Chesses was mad at her, Devora responded
that she had been suspicious of Ehrlich. We know that a nurse named Mary Ann had made a
similar statement. But Devora went a step further. Chesses told Devora that Rabbi Greenberg
pressured him to hire Herbert Ehrlich, and that both gentlemen pressured him to sign a will that
he did not want to sign. Chesses “wanted everything to go to you. He said he loved you.”
Devora also refuted Ehrlich’s statements to Pauline. She couldn’t believe that Ehrlich told
Pauline that Chesses was angry. “He said that he loved you . . . he didn’t want to sign this will
and he -- he needed me to find you.” This he-said/she-said scenario is a battle of words. There
is one person who can corroborate what really transpired. Ehrlich tried to prove that Chesses
was estranged from his daughter and wanted to leave her as little as possible. He videotaped the
execution, even told his assistant that “he had it on tape.” But of course, it is not on tape. As
executor, Ehrlich has the authority to review the APS files. Without court intervention, Pauline
does not.
We have reviewed the sealed files. Without detailing the specific contents, we know
Devora saw Chesses on the day he executed the will. Her observations are recorded. Devora,
suspicious of the swirling attention around Chesses, was concerned about the exploitation of her
16
client. Her attempts to investigate an ongoing APS case were complicated by Ehrlich’s failure to
cooperate. Her call to Pauline was part of that investigation. That this phone conversation
happened in the way that Pauline described it can only be corroborated through Devora’s
testimony and her investigative file. Pauline’s testimony is inadmissible unless her recitation of
Devora’s statements is corroborated. See TEX.R.EVID. 601(b).
AVAILABILITY OF MANDAMUS REVIEW
There are few cases addressing the issue before us, five to be exact. We will examine
each in turn in chronological order.
In Coachman v. State, 692 S.W.2d 940 (Tex.App.--Houston [1st Dist.] 1985, pet. ref’d),
the defendant was convicted of aggravated sexual assault of a child. On direct appeal, he
challenged the trial court’s refusal to permit his attorney to review the entire file from Children’s
Protective Services. Coachman contended that he was entitled to discover the name of the
person who filed the report and he was thus thwarted in his attempt to find potential witnesses.
The trial court required the prosecution to identify all of the State’s witnesses to be called at trial.
The defense was also able to elicit testimony revealing the name of the reporter. Because
Coachman made no showing of prejudice or necessity, the appellate court concluded that the
confidential nature of child abuse reports should be maintained.
In James v. State, 47 S.W.3d 710 (Tex.App.--Texarkana 2001, no pet.), the defendant
was charged with the aggravated sexual assault of his daughter. He complained on direct appeal
that the trial court erroneously excluded records of the Texas Department of Protective and
Regulatory Services which possibly contained evidence of prior false accusations made by the
victim. The trial court reviewed the documents in camera and denied James’ request for release
of the records. The court of appeals found no error because in reviewing the sealed file, it found
17
no record that would have been useful to the defense, nor did it show that any prior allegations
were determined to be false. Id. at 712.
In re Fulgium, 150 S.W.3d 252 (Tex.App.--Texarkana 2004, no pet.)(orig. proceeding)
addressed the discoverability of confidential records in a suit affecting the parent-child
relationship. The Fulgiums sought mandamus relief to compel discovery of CASA records and
the depositions of the CASA case manager and the custodian of records of the Texarkana
Children’s Advocacy Center. CASA and the Advocacy Center sought protective orders, alleging
that the records were privileged under the Texas Family Code. TEX.FAM.CODE ANN. §
261.201 (West 2008). The appellate court denied mandamus relief because the Fulgiums failed
to show that the information was essential to the administration of justice or that the disclosure
posed no danger to child or another person. Id. at 255. In short, the grandparents had not
demonstrated that the trial court clearly abused its discretion.
In S.C.S. and K.J.S. v. Texas Department of Family and Protective Services, 2010 WL
2889664 (Tex.App.--Fort Worth 2010, no pet.), the appellants appealed from the denial of their
motions for disclosure of CPS records pursuant to the Texas Public Information Act. CPS
objected to releasing the information. The trial court conducted an in camera review and found
that disclosure was not essential to the administration of justice. The appellants claimed that
disclosure was essential to determine if civil or criminal actions should be pursued against the
person who filed false reports. Reports of sexual abuse and negligent supervision were made in
both Texas and Oklahoma. Both investigations were “ruled out.” The appellate court, finding
no case law or statutory provision suggesting that dismissed or “ruled out” complaints of child
abuse are automatically deemed false and without merit, perceived no abuse of discretion. Id. at
*2-3.
18
Finally, in In re Agers, 2010 WL 1780133 (Tex.App.--Texarkana 2010, orig.
proceeding), a mother brought suit against a medical provider for negligence causing severe
brain injury to her son, Cole. The hospital sought the production of all records regarding the
child from the Department of Family and Protective Services. Agers opposed production of the
records because they were confidential and irrelevant. Following an in camera review, the trial
court ordered production and Agers sought mandamus review. The appellate court denied relief.
In light of the parties’ relative positions, Cole’s condition, its cause(s), and any
factors contributing thereto go to the very heart of this case. The Texas Supreme
Court noted in Walker that a denial of discovery going to the heart of a party’s
case may render an appellate remedy inadequate. 827 S.W.2d at 843. Having
reviewed the briefs, the record, and the DFPS records in dispute, we find that the
trial court could have reasonably determined that the disclosure of the DFPS
records is relevant to Cole’s condition, pre-natal and/or post-natal care, and that
their disclosure was essential to the administration of justice.
2010 WL 1780133 at *3.
We end with the story of Don Gray. See Gray v. State, 55 Tex. Crim. 90, 114 S.W. 635
(Tex.Crim.App. 1908). Gray shot and killed Will Phillips on January 12, 1907. The men were
close friends and Phillips had been staying at Gray’s home. When Gray’s wife told him that
Phillips had offered her a “gross and serious insult,” an indecent proposal as it were, Gray drove
into town and confronted Phillips. Several witnesses observed the two engaged in conversation
and Phillips had a knife in his hand because he was whittling. The men moved out of sight and
witnesses heard three shots fired in rapid succession. The prosecutor and the victim’s family,
who was pursuing civil litigation, took the position that Gray shot Phillips in the back. Gray
claimed that as the men argued, Phillips started toward him with a knife and he fired in self-
defense. The State claimed that the bullet entered the back and exited the breast. Gray claimed
the bullet entered the breast and exited the back. There was no autopsy performed and no
examination was conducted except as in the general course of preparing the body for burial.
19
Two trials in Llano County resulted in hung juries and venue was moved to Burnet
County. Gray filed a motion to exhume the body so that the precise nature of the wounds could
be carefully examined. The State objected that several witnesses had observed the wounds, but
admitted that there was no eyewitness to the firing of the first shot or to the positions in which
parties squared off. The court noted,
It may be conceded that there was a strong showing made by the state that all
three of the shots entered the body of the deceased from behind, and, yet, based
not only on the testimony of appellant but the testimony of other witnesses, this
fact is seriously disputed, and left, as we believe, in great doubt.
114 S.W. at 640. The primary issue before the court was its authority to order exhumation of
Phillips’ body. More than one hundred years have passed since the court wrote these words, but
they express better than any others the true meaning of the “administration of justice”:
There may be no authority directly supporting our conclusion, and indeed we
have found none, but the conclusion at which we have arrived seems to be within
itself so just, so necessary to the administration of justice, so valuable to society
and the state, and so in keeping with the principles of justice, that it must be
correct. Such an examination would have ascertained the truth, and this is the
supreme end for which rules of evidence were designed and towards which they
should ever tend, so that we may in all reverence say that we are ‘persuaded that
neither death nor life’ shall separate us from the ascertainment, when in the power
of the court to do so, of the very truth in every case. Magna est veritas et
prevalebit. (Truth is mighty and will prevail).
Id. at 643. [Emphasis and translation added.]
20
CONCLUSION
Because the sealed files contain information essential to the administration of justice, we
conclude that the trial court abused its discretion in refusing the discovery requests. This is
precisely the type of situation involving manifest and urgent necessity. Holloway v. Fifth Court
of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). It is also a situation that cannot be remedied by
direct appeal. Agers, 2010 WL 1780133 at *3. We conditionally grant the writ. Mandamus will
issue only if Judge Gamboa fails to enter orders permitting discovery related to Devora and the
APS files, excluding the name and identity of the reporter.
May 30, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Antcliff, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior), sitting by assignment
21