In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00337-CR
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IN RE BRETT W. LIGON, MONTGOMERY COUNTY DISTRICT
ATTORNEY, AND BARBARA ADAMICK, MONTGOMERY COUNTY
DISTRICT CLERK
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Original Proceeding
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MEMORANDUM OPINION
In a petition for writ of mandamus, Brett W. Ligon, the Montgomery County
District Attorney, and Barbara Adamick, the Montgomery County District Clerk,
ask this Court to order the judge of the 9th District Court of Montgomery County,
Texas, to vacate his order requiring them to disclose to the defense in a criminal
case the address of every person who has been summoned for jury service in
Montgomery County during calendar year 2013. We requested a response from the
real party in interest, Leon Davis. Upon review of the mandamus petition, the
mandamus record, and Davis’s response, we conclude the trial court abused its
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discretion by ordering production of the information at issue. We conditionally
grant relators’ request for relief.
The indictments filed in case numbers 13-01-00685-CR and 13-05-05517-
CR accuse Davis of evading arrest or detention with a motor vehicle and retail
theft, and allege that Davis is a habitual criminal. Davis filed a motion challenging
the juror summoning process based on racial bias. No hearing has been scheduled
for that motion. Davis also filed a motion to produce juror address data. That
motion stated that a motion for deposition of witnesses was scheduled for March
27, 2014, but Davis subsequently withdrew the motion and at the beginning of the
hearing on the motion to produce juror address data, Davis’s counsel stated, “I’m
formally withdrawing and abandoning my request to take anyone’s deposition.”
Davis also abandoned his motion to change venue.
At the hearing on Davis’s motion to produce juror address data, Davis’s
counsel stated that the defense believes that a disproportionate number of citizens
of African-American descent serve on jury panels for an unknown reason. Davis
hypothesizes that the reason is because there is an unidentified defect in the way
jurors are summoned. Davis seeks data on the jurors’ addresses so that he can
compare them with census population data which, he argues, will enable his
experts to discern whether the jury summoning process is racially neutral. He is not
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challenging the array. On August 4, 2014, the trial court ordered Adamick to
produce “the address data of all jurors summoned for jury duty during the calendar
year 2013 in electronic form[,]” to two experts retained by the defendant.
This is the second time relators have sought similar mandamus relief in the
same criminal case. See In re Ligon, No. 09-13-00389-CR, 2013 WL 5658610, at
*1 (Tex. App.—Beaumont Oct. 16, 2013, orig. proceeding) (not designated for
publication). In the previous proceeding, we held the trial court abused its
discretion by ordering relators to disclose information from questionnaires filled
out by prospective jurors in cases other than Davis’s. Id. at *4. We held the
questionnaires were confidential. Id. at *2; see also Tex. Code Crim. Proc. Ann.
art. 35.29 (West Supp. 2014); Tex. Gov’t Code Ann. § 62.0132 (West 2013). In his
response to relators’ petition in this new proceeding, Davis argues that the trial
court’s new order is distinguishable from the order that was at issue in the first
mandamus proceeding because this order requires limited disclosure and
production of the electronic data from which the juror questionnaires are
generated, not the completed questionnaires themselves. See Tex. Gov’t Code Ann.
§ 62.0132(g) (describing persons to whom “[t]he information contained in a
completed questionnaire may be disclosed[.]”). Davis argues the summoned jurors’
addresses are not information collected in the jury selection process. See Tex. Code
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Crim. Proc. Ann. art. 35.29. Davis argues that Montgomery County’s electronic
jury selection plan authorizes the trial judge to view the address list that the judge
ordered Adamick to produce in electronic form and allows the judge to order that
the address list be turned over to the defense’s experts. Also, Davis argues that
section 62.011(b)(4) of the Texas Government Code and Montgomery County’s
jury selection plan empower the trial judge to exercise supervisory authority over
the District Clerk by ordering her to provide the electronic information to Davis.
See Tex. Gov’t Code Ann. § 62.011(b)(4) (West 2013).
None of these reasons provides a reasonable basis for distinguishing the first
mandamus proceeding that arose during the State’s prosecution of Davis from the
current mandamus proceeding. See Ligon, 2013 WL 5658610, at **1-4. This time
the trial court ordered Adamick to produce and disclose to Davis the address of
every person summoned to jury service for the Montgomery County district courts
and county courts at law in 2013. Summoning jurors is part of the jury selection
process. See Tex. Gov’t Code Ann. § 62.001 (West 2013); Tex. Code Crim. Proc.
Ann. arts. 33.09 (West 2006), 35.01 (West Supp. 2014). The summoned person’s
address is required information for the confidential questionnaire. See Tex. Gov’t
Code Ann. § 62.0132(c)(2).
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Davis argues that each summoned juror’s address is not confidential in this
context, because the questionnaire itself is not being disclosed. Montgomery
County’s jury selection plan states that the information retained by the District
Clerk’s Jury Coordinator is a computer printout of “the specified number of
prospective jurors with their name, address, juror number and TDL or voter
registration number on front of the summons.” This is the confidential information
mentioned in section 62.0132 of the Texas Government Code and article 35.29 of
the Texas Code of Criminal Procedure. See Tex. Gov’t Code Ann. § 62.0132; Tex.
Code Crim. Proc. Ann. art. 35.29. 1 The jurors’ personal information is not
transformed from confidential to public information even though under
Montgomery County’s jury selection plan the District Clerk prints a “summarized
jury list containing the names and addresses of all prospective jurors summoned
for each date of appearance” and a judge who requested a jury is allowed to see the
printout.
Davis argues that the trial judge’s order to disclose electronic information
about the summoned jurors is within the court’s discretion because Montgomery
County’s jury selection plan requires that the jury coordinator retain a list of the
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Davis did not argue, in this Court or in the trial court, that he presented
good cause for the trial court to order disclosure of personal information about
jurors. See Tex. Code Crim. Proc. Ann. art. 35.29(b) (West Supp. 2014).
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names and addresses of the prospective jurors “to be viewed at the Judge’s
discretion[,]” but the trial judge has not asked for access to the summarized jury
list. Rather, the judge ordered Adamick to produce to the defendant in a criminal
case the address data of all persons who were summoned for jury service in
Montgomery County in 2013. By requiring Adamick to make a disclosure that is
neither required nor provided for by Montgomery County’s jury selection plan, the
trial judge is not enforcing a non-discretionary duty owed by Adamick in the
performance of her official functions under the plan.
Davis argues the trial court has the authority to issue an order to secure petit
juror information under the compulsory process clause of the Sixth Amendment.
See U.S. Const. Amend. VI. The jurors whose information is to be disclosed to
Davis have no connection to his case whatsoever. They are people who were
summoned to appear for jury service in other cases unrelated to the State’s
prosecution of Davis.
Without citing any precedent and relying solely on the Sixth Amendment,
Davis argues that the trial court has the power to order Adamick to produce juror
address data because at the hearing Davis presented evidence “questioning the
inclusion of African-Americans in the jury selection process.” Several defense
attorneys testified that in their experience few African-Americans appear on
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venires in Montgomery County. The jury system supervisor for the District Clerk’s
office testified that jury summonses are generated from an electronic file of names
and addresses. He could not isolate and produce an electronic data file of the jurors
who were summoned in 2013, although it is possible that the county IT department
could.
Karl Eschbach, a demographer who has been retained by Davis, testified that
having the juror’s addresses would enable him to geo-code the data with
geographic counts of racial populations and perform a statistical analysis of
whether the jury summonses were consistent with the representation of African-
Americans in the county. Dr. Eschbach had no information regarding driver’s
licenses or voter registrations, and would simply determine whether there was a
statistically equivalent representation or gross under-representation of “African-
American residential areas” in the areas where summonses were sent. The work he
would perform with the data would help identify “whether there was an issue that
needed to be addressed.”
A defendant has a right to compulsory process only for obtaining evidence
that is both material and favorable to the defense. Coleman v. State, 966 S.W.2d
525, 527-28 (Tex. Crim. App. 1998) The requested data would make it possible to
discover if areas that have high concentrations of African-Americans are
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statistically underrepresented in jury summonses, but Davis presented no evidence
that jury summonses are produced in any manner other than by randomized
selection from driver’s licenses and voter registrations obtained from the Secretary
of State, and in his response to the mandamus petition, Davis concedes the
selection results from a computer program approved under the statute that allows
an electronic method of jury selection. See Tex. Gov’t Code Ann. § 62.011. The
evidentiary value of the information that the trial court ordered Adamick to
produce and disclose to the defense is entirely speculative. Absent a showing that
the jurors’ personal information would be both material and favorable to him, the
compulsory process clause does not require that the information be produced. See
Coleman, 966 S.W.2d at 528.
In a criminal case, a relator may establish an entitlement to mandamus relief
by showing a clear right to relief and the lack of an adequate remedy at law. See In
re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007). “A clear right to relief is shown when
the facts and circumstances dictate but one rational decision ‘under unequivocal,
well-settled (i.e., from extant statutory, constitutional, or case law sources) and
clearly controlling legal principles.’” In re State ex rel. Weeks, 391 S.W.3d 117,
122 (Tex. Crim. App. 2013) (quoting Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex.
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Crim. App. 2011)). A trial court has a “ministerial duty” to vacate an order which
it lacked the authority to issue. See State ex rel. Thomas v. Banner, 724 S.W.2d 81,
83 (Tex. Crim. App. 1987). Mandamus relief is appropriate when the trial court
issues a discovery order that is beyond the scope of its authority. See In re State ex.
rel. Robinson, 116 S.W.3d 115, 117-18 (Tex. App.—Houston [14th Dist.] 2002,
orig. proceeding); In re State ex. rel. Wade v. Stephens, 724 S.W.2d 141, 143-44
(Tex. App.—Dallas 1987, orig. proceeding).
The State cannot pursue a pre-trial appeal of the trial court’s order. See Tex.
Code Crim. Proc. Ann. art. 44.01 (West Supp. 2014). Davis argues that Adamick
may present a complaint regarding the trial judge’s order with the county’s Board
of District Judges and the Commissioner’s Court, and contends that a complaint to
those bodies provides an adequate remedy at law. The trial court signed an order in
a criminal case, and by virtue of that command, Adamick must obey or face
possible contempt proceedings. See Ex parte Hughes, 759 S.W.2d 118, 120 (Tex.
1988). If the trial judge exceeded his authority in making that order in a criminal
case, it is this Court, not the Board of Judges or the Commissioner’s Court, with
the jurisdiction to order the judge to vacate that order. See Tex. Gov’t Code Ann. §
22.221(b) (West 2004). Relators have established that they lack an adequate
remedy at law.
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The trial court abused its discretion when it required the Montgomery
County District Clerk to produce and disclose confidential personal information
without an adequate showing that the information is material and favorable to the
defense. We conditionally grant relators’ petition for writ of mandamus and direct
the trial court to vacate its order requiring disclosure of the address of every person
who has been summoned for jury service in Montgomery County during calendar
year 2013. Because we are confident the trial court will vacate its order, the writ
shall issue only if the trial court fails to act within a reasonable time.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on September 4, 2014
Opinion Delivered October 8, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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