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

• Court: Texas Supreme Court
• Decided: July 16, 2015
• Docket: WR-83,585-01
• Status: Published

Opinion

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

1 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

2 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.

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.

3 /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

4 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