in Re State of Texas Ex Rel Michael Munk, District Attorney, 106th Judical District

• Court: Court of Appeals of Texas
• Decided: January 26, 2015
• Docket: WR-81,953-06
• Status: Published

Opinion

WR-81,953-06 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/23/2015 4:52:16 PM Accepted 1/26/2015 8:14:35 AM ABEL ACOSTA No.______________ CLERK

In the RECEIVED COURT OF CRIMINAL APPEALS Court of Criminal Appeals of Texas 1/26/2015 At Austin ABEL ACOSTA, CLERK

⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

IN RE THE STATE OF TEXAS EX REL. MICHAEL MUNK Relator V. HON. CARTER SCHILDKNECHT, PRESIDING JUDGE, 106TH DISTRICT COURT OF TEXAS Respondent

STATE’S MOTION FOR LEAVE TO FILE APPLICATION FOR WRIT OF PROHIBITION

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

COMES NOW THE STATE OF TEXAS, in accordance with Rules 10.1(a)

and 72.1 of the Texas Rules of Appellate Procedure, and files this motion for leave

to file an application for a writ of prohibition, and, in support thereof, presents the

following:

1. On October 6, 2014, Relator petitioned the 11th Court of Appeals for writs

of mandamus and prohibition regarding an order by Respondent that would

require the State to generate and provide criminal histories for all of the State’s non-law-enforcement witnesses in the Gaines County case of State v.

Desirae Mata, cause 14-4487.

2. On November 10, 2014, the 11th Court of Appeals issued an opinion

conditionally granting Relator’s request for mandamus relief. Respondent

withdrew her earlier order and issued a new order complying with the

opinion.

3. Following the issuance of the 11th Court of Appeals’ opinion, defendants

have on numerous occasions presented Respondent with requests for

discovery similar to the request that resulted in the order at issue in Mata.

Respondent continues to order the State to provide discovery that

Respondent does not have the authority or discretion to order, in violation of

article 39.14 of the Texas Code of Criminal Procedure and the opinion of the

11th Court of Appeals.

4. The State has no adequate remedy at law, because the State has no privilege

to appeal a pretrial discovery order. The action the State seeks to prohibit is

a ministerial duty not subject to judicial discretion. The State has a clear

right to the relief requested.

5. Because Respondent continues to order that discovery be provided that

Respondent has neither the discretion nor the authority to order, the State

requests leave to file its Application for Writ of Prohibition with this honorable Court, and thereafter prays that this Court issue the Writ of

Prohibition ordering the trial court to refrain from ordering (1) that the State

generate criminal histories for its non-law-enforcement witnesses that it does

not already possess, and (2) that the State provide criminal histories of its

non-law-enforcement witnesses to defendants in the absence of a showing of

good cause, materiality, and possession by the State.

WHEREFORE, the State prays that this Court will grant the State’s motion

for leave to file its application for a writ of prohibition.

Respectfully submitted,

Michael Munk District Attorney 106th Judicial District P.O. Box 1124 Lamesa, Texas 79331 (806) 872-2259 (806) 872-3174 fax Bar No. 24052943 CERTIFICATE OF SERVICE

I, Michael Munk, District Attorney for the 106th Judicial District, hereby

certify that a true copy of the above and foregoing Motion for Leave to File

Application for Writ of Prohibition was transmitted by email to Judge Carter T.

Schildknecht, on this the 23rd day of January, 2015.

Michael Munk ATTORNEY FOR STATE