Family Code 264.408(d-1) Bars CAC Video Transcripts | In re Garza (2026)

In re José Garza, 03-26-00379-CV, June 30, 2026.

On appeal from Travis County District Court

Synopsis

Texas Family Code section 264.408(d-1) requires a trial court to deny a defendant’s request to transcribe CAC forensic interview videos once the State has made those recordings reasonably available under Code of Criminal Procedure article 39.15(d). The Austin Court of Appeals held that a verbatim transcript is itself a prohibited copy or reproduction of the recording, so an order allowing transcription exceeds the trial court’s statutory authority and is correctable by mandamus.

Relevance to Family Law

Although In re José Garza arises from a criminal prosecution, family-law litigators should pay close attention because CAC recordings often sit at the center of parallel SAPCR, conservatorship-modification, termination, and protective-order litigation involving abuse allegations. The opinion reinforces a strict anti-reproduction rule around CAC forensic interviews and underscores that, where the Legislature has tightly controlled access to child-interview media, lawyers cannot circumvent those limits through “workaround” requests for transcripts, duplicates, or derivative reproductions. In practice, that affects how family lawyers coordinate with criminal counsel, prepare experts, draft protective orders, seek in camera review, and frame requests for access to child forensic evidence without inviting a statutory objection or mandamus exposure.

Case Summary

Fact Summary

The underlying criminal case involved multiple indictments alleging sexual abuse of two children. During the investigation, the child complainants participated in five video-recorded forensic interviews at child advocacy centers. Defense counsel sought an order permitting a court reporter to prepare protected verbatim transcripts of those CAC recordings, with access limited by protective order to the defense team and the State, and with the transcripts to be returned to the court after trial.

The trial court granted that request. Its order required the parties to agree on a court reporter who would be allowed to make a verbatim transcription of the five CAC videos, contemplated a protective order restricting access to the transcripts, and required the transcripts’ return after trial. The Travis County District Attorney moved to reconsider, lost, and then sought mandamus relief in the Third Court of Appeals.

The central factual point for the appellate court was not who selected the reporter or how tightly the transcription would be controlled. It was that the State had already made the CAC recordings reasonably available for defense review, and defense counsel did not dispute that access had been provided. That concession made the statutory question dispositive: whether a transcript is a forbidden copy or reproduction under Family Code section 264.408(d-1).

Issues Decided

• Whether Texas Family Code section 264.408(d-1) requires a trial court to deny a request to transcribe CAC forensic interview recordings when the State has made the recordings reasonably available under Code of Criminal Procedure article 39.15(d).
• Whether a verbatim transcript of a CAC forensic interview recording constitutes a prohibited “copy, photograph, duplicate, or otherwise reproduce[d]” version of the recording under section 264.408(d-1).
• Whether mandamus is available to correct a trial court order authorizing transcription of CAC recordings in violation of the statute.

Rules Applied

The court’s analysis turned primarily on Texas Family Code section 264.408(d-1), which provides that CAC interview recordings are subject to production under Article 39.14 and Rule 615, but that a court “shall deny” a defendant’s request to “copy, photograph, duplicate, or otherwise reproduce” the recording if the prosecutor has made it reasonably available in the same manner contemplated by Article 39.15(d).

The court also relied on Code of Criminal Procedure article 39.15(d), which defines when material is “reasonably available.” Under that provision, material is reasonably available if, at a facility under the State’s control, the State provides ample opportunity for inspection, viewing, and examination by the defendant, counsel, and prospective defense experts.

On mandamus standards, the court cited In re State ex rel. Wice, 668 S.W.3d 662, 671 (Tex. Crim. App. 2023), for the rule that mandamus requires no adequate remedy at law and a ministerial duty, and In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013), for the proposition that a clear right to relief exists when controlling law dictates but one rational result.

Most importantly, the court treated In re State ex rel. Tharp, 722 S.W.3d 268 (Tex. App.—Austin 2025, orig. proceeding), as controlling precedent. In Tharp, the same court had already held that a transcript of a CAC interview video is a prohibited copy or reproduction under section 264.408(d-1), and that a trial court order authorizing such transcription exceeds statutory authority.

Application

The court’s application was straightforward because the factual predicate for the statute was undisputed. The State had made the CAC videos reasonably available for defense inspection, viewing, and examination, and there was no record evidence that access had been denied. Once that point was established, section 264.408(d-1) became mandatory: the trial court “shall deny” any request to copy, duplicate, or otherwise reproduce the recordings.

From there, the appellate court framed the case as controlled by Tharp. The defense tried to distinguish Tharp by pointing out that, in this case, the trial court required the parties to agree on the court reporter, rather than letting defense counsel alone retain one. The court rejected that distinction as immaterial. The statutory problem was not the identity of the transcriber. The problem was that the end product—a verbatim transcript—was a reproduction of the protected recording.

The court also rejected the invitation to revisit Tharp. Invoking horizontal stare decisis, it emphasized that an intermediate appellate court is bound by its own precedent unless overruled en banc or by a higher court. Because Tharp squarely answered the statutory question, the panel treated the issue as settled and held that the trial court had no discretion to authorize transcription. That made the act ministerial and the error mandamus-worthy.

Holding

The court held that when the State has made CAC forensic interview recordings reasonably available under Code of Criminal Procedure article 39.15(d), Texas Family Code section 264.408(d-1) requires the trial court to deny a request to transcribe those recordings. In the court’s view, the statute’s command is mandatory, not discretionary.

The court further held that a verbatim transcript of a CAC forensic interview recording constitutes a prohibited copy or reproduction under the plain language of section 264.408(d-1). A protective order, limits on circulation, return-to-court provisions, or joint selection of the court reporter do not change the character of the transcript as a reproduction.

Finally, the court held that the trial court’s order exceeded its statutory authority and involved a ministerial act subject to mandamus relief. Because the State had no adequate appellate remedy from the interlocutory discovery order, conditional mandamus was appropriate, and the trial court was directed to vacate the transcription order.

Practical Application

For family-law litigators, the strategic takeaway is broader than the criminal-discovery setting. In abuse-driven custody disputes, modification proceedings, terminations, and related protective-order matters, CAC materials often influence expert opinions, child-hearsay strategy, temporary-orders advocacy, and settlement posture. Garza confirms that if a statute restricts reproduction of child forensic media, courts may not authorize a workaround simply because the proposed derivative form seems narrower, safer, or more administratively convenient.

That matters in at least three recurring family-law scenarios. First, where there is a parallel criminal case, family counsel should assume that access to CAC recordings may be limited to inspection and viewing rather than possession or transcription. Case strategy should therefore be built around structured review sessions, detailed attorney notes, and carefully prepared expert access protocols rather than expecting a printable transcript. Second, in SAPCR or modification litigation involving abuse allegations, practitioners should think carefully before asking a court to order production of derivative materials that effectively recreate protected child-interview content. A request framed as a neutral litigation aid may still be characterized as an impermissible reproduction. Third, in coordination with amicus counsel, child’s counsel, or retained experts, lawyers should distinguish between permitted review and prohibited duplication, because that line now carries real mandamus risk.

Practitioners should also revisit how they preserve the record. If access is genuinely inadequate, the dispositive fight may not be over whether a transcript would be useful, but whether the material was ever made “reasonably available” in the first place. That means developing a concrete record on denied access, inadequate viewing conditions, insufficient time for expert examination, scheduling obstacles, or technological limitations. Without that record, Garza and Tharp make it difficult to justify any order that results in a transcript or other derivative reproduction.

Checklists

Assess Whether the Material Has Been “Reasonably Available”

• Confirm whether the recording was made available at a facility under governmental control.
• Document each date, duration, and condition of access offered for inspection or viewing.
• Identify whether counsel, the client, and proposed experts were each given ample opportunity to review the material.
• Preserve written requests for additional access, replay capability, equipment needs, interpreter needs, or expert scheduling accommodations.
• If access was inadequate, make a clear evidentiary record before seeking any extraordinary relief.

Avoid Statutory Overreach in Drafting Requests

• Do not request a transcript, duplicate, digital copy, screenshot set, summary exhibit, or other derivative product without first analyzing whether it could be treated as a prohibited reproduction.
• Do not assume a protective order cures a statutory prohibition.
• Do not assume that using a neutral court reporter, special master, or agreed vendor changes the statutory analysis.
• Frame relief requests around additional viewing, inspection logistics, expert review opportunities, or in camera procedures instead of reproduction.
• Tie every requested procedure to the statutory language governing access.

Build a Review Protocol for Parallel Family and Criminal Matters

• Coordinate early with criminal counsel regarding what CAC materials exist and what access has actually been provided.
• Prepare a disciplined note-taking process for review sessions, including time stamps, speaker identifications, and demeanor observations where permitted.
• Retain experts early enough to use available viewing windows efficiently.
• Clarify whether expert review must occur on-site and what devices, if any, may be used during inspection.
• Avoid incorporating protected CAC content into family-court filings more expansively than necessary.

Preserve Error if Access Is Realistically Insufficient

• Make a record of every denied request for supplemental viewing or expert examination.
• Offer specific reasons why existing access prevents meaningful evaluation, impeachment preparation, or expert analysis.
• Present evidence, not just argument, regarding logistical barriers.
• Request narrower alternative relief before seeking anything that resembles reproduction.
• Obtain a ruling on the adequacy of access itself, not merely on the request for a transcript.

Use the Case Offensively When Opposing Reproduction Requests

• Cite Garza and Tharp together for the proposition that a transcript is a prohibited copy or reproduction.
• Emphasize the mandatory “shall deny” language of Family Code section 264.408(d-1).
• Argue that the identity of the transcriber is immaterial under the Austin court’s reasoning.
• Point out that protective-order limitations do not create authority the statute withholds.
• If the trial court grants reproduction anyway, evaluate mandamus immediately.

Citation

In re José Garza, No. 03-26-00379-CV, 2026 WL ___ (Tex. App.—Austin June 30, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion here

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