WR-83,585-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/15/2015 4:20:00 PM
Accepted 7/16/2015 8:26:19 AM
ABEL ACOSTA
No. - -___ CLERK
IN THE RECEIVED
COURT OF CRIMINAL APPEALS
COURT OF CRIMINAL APPEALS OF TEXAS 7/16/2015
ABEL ACOSTA, CLERK
IN RE JANA DUTY,
RELATOR
IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY
FOR THE STATE OF TEXAS, WILLIAMSON COUNTY
RELATOR’S MOTION FOR LEAVE TO FILE
PETITION FOR WRIT OF MANDAMUS
TRIAL COURT CAUSE NUMBER 13-0826-K277
IN THE 368TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
HON. RICK J. KENNON
J. Woodfin Jones Brent Webster
State Bar No. 10911700 State Bar No. 24053545
ALEXANDER DUBOSE Assistant District Attorney
JEFFERSON & TOWNSEND LLP 405 MLK Street, #1
515 Congress Avenue, Suite 2350 Georgetown, Texas 78626
Austin, Texas 78701 Telephone: (512) 943-1234
Telephone: (512) 482-9300 Facsimile: (512) 943-1255
Facsimile: (512) 482-9303 bwebster@wilco.org
wjones@adjtlaw.com
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
On behalf of the State of Texas, and based upon the arguments contained in
the attached petition, Relator Jana Duty, District Attorney for Williamson County,
Texas, requests permission to file the attached Petition for Writ of Mandamus. The
allegations in the petition complain of action taken by the 368th Judicial District
Court of Williamson County, Texas, hereinafter “Respondent Court.” In support
of this motion, Relator would show the Court the following:
I.
Jana Duty, hereinafter “Relator,” is a Texas citizen and elected official
whose rights and interests will be directly affected by the issuance of the writ.
II.
Presently in this matter, the Respondent Court has denied the State’s request
to rescind an unconstitutional and void gag order signed on April 9, 2015.
Respondent Court signed and entered a gag order, which consisted solely of a one-
sentence blanket prohibition that constitutes a broad prior restraint on the speech of
the Relator and multiple others: “The parties, attorneys, and employees of the
attorneys in this case are prohibited from communicating with the press/media
regarding this case or publicly commenting on this case during the pendency of the
proceedings.” Respondent Court is without discretion to violate Relator’s free
speech rights and enter a gag order without first hearing evidence and making
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specific findings based on that evidence, pursuant to the Texas Supreme Court
holding in Davenport and this Court’s holdings in Ex parte Foster and Ex parte
McCormick. This gag order, drafted by Defense Counsel, lacks any of the specific
findings required by law, is not narrowly tailored, and does not use the least
restrictive means to achieve the goals of the order; nor was evidence heard before
the gag order was entered. These errors render the gag order unconstitutional and
void. This Court should allow the accompanying Petition for Writ of Mandamus
to be filed and grant the requested relief because the Respondent Court lacks
authority and/or is without discretion to bypass the process of hearing evidence and
making specific findings supported by that evidence, consistent with Davenport,
before entering a gag order.
III.
The Court should hear this case, because it involves an attempt by
Respondent Court to unconstitutionally silence another elected official, the elected
District Attorney of Williamson County. The obvious harm is exacerbated by the
fact that the Respondent Court’s actions are now within nine months of the primary
election for Relator’s re-election. This is a major case personally involving the
elected District Attorney and the administration of justice in Williamson County; it
is not a low-level dispute between an assistant district attorney and an associate
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judge. This dispute is at the intersection of the first amendment, the sixth
amendment, and democratic elections.
Moreover, this case deserves this Court’s attention because the Respondent
Court is exercising unconstitutional prior restraint over the parties, attorneys, and
attorney’s staff in the underlying case and, indirectly, over the press itself. Not
only does the gag order hamper the press’s ability to get accurate coverage of the
case, but the Respondent Court recently attempted to silence the press in this same
case by instructing a reporter to remove an article relating to this case that the
Respondent Court thought to be incorrect. As the accompanying mandamus
petition demonstrates in the section titled, “The Court Should Grant Relief
Through a Writ of Mandamus,” the Public and the democratic process are harmed
by the gag order and the actions of the Respondent Court.
III.
Since the Respondent Court is refusing to set aside the order signed on April
9, 2015, after being notified that courts are without discretion to enter a gag order
without first hearing evidence and making findings based on that evidence,
pursuant to the ruling in Davenport, Relator requests this Honorable Court to grant
Relator leave to file this Petition for Writ of Mandamus.
WHEREFORE, PREMISES CONSIDERED, the State prays the Court grant
the Relator leave to file its Petition for Writ of Mandamus.
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/s/ J. Woodfin Jones_______________
J. Woodfin Jones
State Bar No. 10911700
ALEXANDER DUBOSE
JEFFERSON & TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
wjones@adjtlaw.com
/s/ Brent Webster_________________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
/s/ Eric Gutierrez_________________
Eric Gutierrez
State Bar No. 24089267
Special Prosecutor
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
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CERTIFICATE OF SERVICE
A true copy of the above Motion for Leave to File Petition for Writ of
Mandamus has been served on the Respondent, Hon. Rick J. Kennon, 368th
District Court, 405 M.L.K. Street, Georgetown, Texas 78626 at
rkennon@wilco.org, and the Real Party in Interest’s attorneys of record, Kristen
Jernigan, 207 S. Austin Ave., Georgetown, Texas 78626 at
kristen@txcrimapp.com, Ryan Deck, 107 N. Lampasas, Round Rock, Texas
78664 at ryandecklaw@gmail.com, and R. Scott Magee, 107 N. Lampasas, Round
Rock, Texas 78664 at scott@mageefirm.net on this the 15th of July, 2015.
/s/ Brent Webster_________________
Brent Webster
State Bar No. 24053545
Assistant District Attorney
Williamson County, Texas
405 MLK Street, #1
Georgetown, Texas 78626
Telephone: (512) 943-1234
Facsimile: (512) 943-1255
bwebster@wilco.org
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in Re the State of Texas Ex Rel Jana Duty, District Attorney, Williamson County v. Honorable Rick J. Kennon, Judge 368th District Court, Real Party in Interest Crispin James Harmel
Combined Opinion