Robinson v. State
851 S.W.2d 216
Tex. Crim. App.
1993
Check Treatment

R.V. INDUSTRIES, a Texas General Partnership, Jose Manuel Ruiz and Miguel Villarreal, Petitioners, v. COUNTY OF WEBB, Respondent.

No. D-2320.

Supreme Court of Texas.

April 7, 1993.

jective prong of the test is met. Endless arguments about what is a “chance” and what is a “substantial chance” should not substitute for careful analysis of the controlling principles.

Second, I would point out that there is an exception to the investigation privilege in TEX.R.CIV.P. 166b(3)(c) that is largely ignored in the wrangling over what constitutes “in anticipation of litigation.” That exception allows discovery of materials covered by the investigative privilege “[u]pon a showing that the party seeking discovery has substantial need of the materials and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means“. This language taken from FED.R.CIV.P. 26(b)(3) has been the subject of considerable attention in the federal courts and in other jurisdictions, but has not been much applied in Texas since our adoption of it in 1988. Because the exception focuses more directly on the limits of the investigative privilege, it should prove more useful in resolving discovery disputes than arguments about whether litigation was anticipated. And the decisions of federal courts and the courts of other states should be helpful in applying the exception.

CORNYN, J., joins in this dissenting opinion.

Francisco J. Saldana, A. Cronfel Meurer, Laredo, for petitioners.

Michael Bukiewicz, Anna Laura Cavazo Ramirez, Laredo, for respondent.

PER CURIAM

The opinion issued by the court of appeals in this cause reverses the trial court‘s judgment against Webb County and others.

. The court of appeals’ judgment, however, orders that the County take nothing. Pursuant to Rule 170, Tex. R. App. P., without hearing oral argument, a majority of this court grants the applications for writ of error, reverses the judgment of the court of appeals, and renders judgment that R.V. Industries and others take nothing. By our disposition of this cause, however, we should not be construed as either approving or disapproving the language of the court of appeals’ opinion.