                                                                           WR-83,783-01,02
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 8/25/2015 5:14:13 PM
                                                                 Accepted 8/26/2015 8:19:13 AM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                        DOCKET NO.
                                                               RECEIVED
                                                        COURT OF CRIMINAL APPEALS
                                 IN THE                        8/26/2015
                                                          ABEL ACOSTA, CLERK
                       COURT OF CRIMINAL APPEALS
                           AT AUSTIN, TEXAS


                              IN RE:
                        THOMAS ALLEN SIMON,
                              Relator



        PETITION FOR WRIT OF MANDAMUS AND
              FOR WRIT OF PROHIBITION


                         Trial Cause No. 42908
                  th
        In the 424 Judicial District Court of Burnet County, Texas
                  Honorable Evan C. Stubbs, Presiding



Tracy D. Cluck                         L. T. "Butch" Bradt
Texas Bar No. 00787254                 Texas Bar No. 02841600
12600 Hill Country Blvd., Ste. R-275   14015 Southwest Frwy., Suite 4
Austin, Texas 78738                    Sugar Land, Texas 77478
Tel: (512)329-2615                     Tel: (281)201-0700
Fax: (512) 329-2604                    Fax: (281) 201-1202
tracy(S)tracyclucklawyer.com           ltbradt@flash.net
Attorney for Relator,                  Attorney for Relator,
Thomas Allen Simon                     Thomas Allen Simon
              IDENTITIES OF PARTIES AND COUNSEL

Relator: Thomas Allen Simon

Counsel for Relator:

Tracy D. Cluck #00787254
12600 Hill Country Blvd., Suite R-275
Austin, Texas 78738
Tel: (512)329-2615
Fax: (512) 329-2604
tracy (Stracyclucklawyer.com
L.T. "Butch" Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
Tel: (281) 201-0700
Fax: (281) 201-1202
ltoadt@flash.net

Respondent:

Honorable Evan C. Stubbs
424th Judicial District Court
Burnet County Annex North
1701E. Polk Street, Ste. 74
Burnet, Texas 78611
Tel: (512)756-5438
Fax: (512) 756-8478
424distjudge@gmail.com

Real Parties In Interest:

State of Texas
Counsel for the State of Texas:

Honorable Wiley B. "Sonny" McAfee, District Attorney
Gary Bunyard, Ass't District Attorney
Burnet County Annex North
1701E. Polk Street, Ste. 24
Burnet, Texas 78611
Tel: (512)756-7609
Fax: (512) 756 8572
Wiley 1450 (Syahoo.com
g.bunyard(5>co.llano.tx.us




Gary Prust
1607 Nueces Street
Austin, Texas 78701
Tel: (512)469-0092
Fax: (512) 469-9102
gary(5)prustlaw.com
                           TABLE OF CONTENTS
                                                                             Page

IDENTITIES OF PARTIES AND COUNSEL                                              2

TABLE OF CONTENTS                                                              4

TABLE OF AUTHORITIES                                                           6

STATEMENT OF THE CASE                                                          8

STATEMENT OF JURISDICTION                                                      9

ISSUES PRESENTED                                                               9

ISSUE NO. ONE: Does the power of the trial court to appoint counsel to represent
indigent defendants carry with it the concomitant power to remove counsel at the
judge's discretionary whim, especially when that removal is accomplished without
notice that comports with Due Process? If not, will mandamus issue to cause
Respondent to set aside his order substituting Gary Prust as appointed counsel to
represent
Relator?                                                                    9

ISSUE NO. TWO: When a defendant is seeking mandamus relief to set aside an
order appointing new counsel, will a writ of prohibition issue to stay the
proceedings in the trial court to thereby prevent interference with the jurisdiction
of the Court of Appeals?                                                       10


STATEMENT OF FACTS                                                            10

SUMMARY OF THE ARGUMENT                                                       13

ARGUMENT AND AUTHORITY                                                         13

ISSUE NO. ONE RESTATED: The power of the trial court to appoint counsel to
represent indigent defendants does not carry with it the concomitant power to

                                         4
remove counsel at the judge's discretionary whim, especially without proper
notice. Mandamus should issue to cause the order removing counsel to be
vacated                                                               13

Entitlement to Writ of Mandamus                                            15

ISSUE NO. TWO RESTATED:             A Writ of Prohibition should issue to
prohibit Respondent from holding any hearings on the case until such time as the
application    for     writ     of     mandamus        shall      have     been
determined                                                                18

Entitlement to Writ of Prohibition                                        18

CONCLUSION & PRAYER                                                       20

CERTIFICATE OF SERVICE                                                    21

CERTIFICATE OF WORD COUNT                                                 22

TRAP RULE 52.7(a)(2) STATEMENT                                            22

APPENDIX                                                                  24
                         TABLE OF AUTHORITIES

State Cases                                                   Page

Ayers v. Canales, 790 S.W.2d 554 (Tex. 1990)                 16,17

Bowenv. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011)             17

Buntion v. Harmon, 827 S.W.3d 945 (Tex.Crim.App. 1992)           17

DeLeon v. Aguilar, 111 S.W.3d 1 (Tex.Crim.App. 2004)
     (orig. proceeding)                                         19

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238

      (Tex. 1985)                                               16

Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987)                16, 17

Huie v. DeSahzo, 922 S.W.2d 920 (Tex. 1996)                   16,16

Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941

      (Tex.App.—Dallas 1982, orig. proceeding)                  19

InreKuntz, 124 S.W.3d 179 (Tex. 2003)                          16

In re State ex rel. Weeks, 391 S.W.3d 117

      (Tex.Crim.App. 2013) (orig. proceeding)                   19

Jampolev. Touchy, 673 S.W.2d 569 (Tex. 1984)                    16

Mathews v. Eldridge, 424 U.S. 319(1976)                      14, 15

Padilla v. McDaniel, 122 S.W.3d 805
      (Tex.Crim.App. 2003) (orig. proceeding) (per curiam)     15
Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009)
      (orig. proceeding)                                        19
                                       6
Stearns v. Clinton, 780 S.W.2d 216 (Tex.Crim.App. 1989)           15, 17

Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995)               17

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)                         16

West v. Solito, 563 S.W.2d 240 (Tex. 1978)                           17


State Statutes

Art. V, § 1, Texas Constitution                                      9

Art. 1, §10, Texas Constitution                                  9, 15


U. S. Constitution

Amend. V, U.S. Constitution                                      9, 15

Amend. VI, U.S. Constitution                                     9, 15

Amend. XIV, U.S. Constitution                             9, 14, 15,20
TO THE HONORABLE COURT OF CRIMNAL APPEALS:



Relator, Thomas Allen Simon, shows:



                        STATEMENT OF THE CASE



      The underlying suit (Cause No. 42908 in the 424th Judicial District Court of

Burnet County, Texas) is an indictment alleging two counts of aggravated sexual

assault and one count of aggravated assault. On April 8, 2014, Tracy D. Cluck was

appointed to represent Relator in his then un-indicted felony cases in Burnet

County. Relator is incarcerated in the Burnet County Jail pending trial. This case

is set for hearing on pre-trial motions on August 27, 2015 and for jury trial on

September 14, 2015. Relator, by and through his attorney, Tracy D. Cluck, filed ex

parte motions on July 31, 2015 seeking funds for a medical expert and additional

funds for investigation services. Respondent set these matters for hearing on

August 7, 2015 and sent notice to Tracy D. Cluck to appear. The hearing was held

ex parte in a closed courtroom, with Relator present, and a record was made.

Although Relator had not expressed any dissatisfaction with Cluck or even any

desire to have Cluck removed from his case, Respondent sua sponte ordered that

                                        8
Cluck be immediately removed as attorney for Relator. Later that day, Respondent

signed an order substituting Gary Prust as attorney for Relator. The case is now set

on the trial court's docket for pre-trial hearing and jury trial as set out above.



                       STATEMENT OF JURISDICTION



      This Petition is brought pursuant to, and this Court has jurisdiction of this

Petition, pursuant to Article V, §1 of the Texas Constitution.



      This Petition is also brought under the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution and under Art. 1, § 10 of the Texas

Constitution.



                               ISSUES PRESENTED



      ISSUE NO. ONE: Does the power of the trial court to appoint counsel to

represent indigent defendants carry with it the concomitant power to remove

counsel at the judge's discretionary whim, especially when that removal is

accomplished without notice that comports with Due Process?                 If not, will

                                           9
mandamus issue to cause Respondent to set aside his order substituting Gary Prust

as appointed counsel to represent Relator?



      ISSUE NO. TWO: When a defendant is seeking mandamus relief to set

aside an order appointing new counsel, will a writ or prohibition issue to stay

proceedings in the trial court to thereby prevent interference with the jurisdiction

of the Court of Appeals?



                            STATEMENT OF FACTS



      Relator was indicted June 3, 2014 for two counts of aggravated sexual

assault and one count of aggravated assault. A true copy of that indictment is

attached in the Appendix hereto, marked as Exhibit 1, and incorporated by

reference for all purposes. Relator denies the allegations of that indictment.



      On April 8, 2014 Tracy D. Cluck was appointed to represent Relator with

respect to his then un-indicted felony cases in Burnet County (subsequently

indicted as Cause No. 42908 in the 424th District Court of Burnet County, Texas).

A true and correct copy of the e-mail notice of appointment to counsel is attached

                                         10
in the Appendix hereto, marked as Exhibit 2, and incorporated by reference for all

purposes.



      On July 31, 2015 Relator, by and through his attorney Tracy D. Cluck, filed

ex parte motions seeking funds for a medical expert and additional funds for

investigative services. On August 3, 2015 counsel received an email notice from

the court notifying him that Respondent had set the motions for hearing on August

7, 2015. A true and correct copy of the e-mail notice of this hearing and the docket

sheet is attached in the Appendix hereto, marked as Exhibit 3, and incorporated by

reference for all purposes. There was no notice that the Respondent was even

going to consider removing counsel from the case. Id.



      On August 7, 2015 the court held an ex parte hearing in a closed courtroom

with Relator present. A record of that hearing was made by the official court

reporter for the 424th District Court, Jennifer M. Fest.



      On August 7, 2015, at the ex parte hearing on Relator's ex parte motion,

Respondent sua sponte removed Tracy D. Cluck as Relator's attorney. Later that

day Respondent appointed Gary Prust to represent Relator. A true and correct

                                          11
copy of that order is attached in the Appendix hereto, marked as Exhibit 4, and

incorporated by reference for all purposes. Relator's case is set for hearing on pre-

trial motions on August 27, 2015 at 9:00 a.m. and for jury trial on September 2015

at 8:30 a.m. A true and correct copy of the order setting these matters on the

court's docket is attached in the Appendix hereto, marked as Exhibit 5, and

incorporated by reference for all purposes.



      Relator has not requested new counsel and, indeed, wishes for Tracy D.

Cluck to continue to represent him.            See Relator's Affidavit     (Unsworn

Declaration), which is attached in the Appendix hereto, marked as Exhibit 6, and

incorporated by reference for all purposes.



      Tracy D. Cluck did not request to be removed as attorney for Relator nor did

he receive notice that the trial court would hear the issue of substitution of counsel

at the hearing on Relator's ex parte motions held on August 7, 2015.              See

Declaration of Tracy D. Cluck, attached in the Appendix hereto, marked as Exhibit

7, and incorporated by reference for all purposes.




                                         12
      Relator sought mandamus relief from the Third Court of Appeals, which

denied relief.   See Appendix 9 and 10, attached hereto and incorporated by

reference for all purposes. The instant application results.



                       SUMMARY OF THE ARGUMENT



      A trial judge acts without reference to guiding authority when he removes

appointed counsel from representing an indigent defendant and appoints new

counsel. Mandamus will issue to require the trial judge to set aside that order.

Mandamus relief is available to address this abuse of discretion as Relator has no

adequate remedy by appeal and is entitled to mandamus relief.



      A writ of prohibition should issue to prohibit Respondent from taking any

further action on the underlying case until this appellate proceeding is concluded.



                       ARGUMENT AND AUTHORITY



      ISSUE NO. ONE RESTATED: The power of the trial court to appoint

      counsel to represent indigent defendants does not carry with it the

                                          13
      concomitant power to remove counsel at the judge's discretionary whim,

      especially without proper notice. Mandamus should issue to cause the order

      removing counsel to be vacated.



      Relator and his counsel received no notice that Respondent was going to

consider removing counsel from the case. This violated Relator's Due Process

rights because "The fundamental requirement of due process is the opportunity to

be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge,

424 U.S. 319, 333 (1976). Having no notice of Respondent's intention to remove

counsel and forcing counsel to "shoot from the hip" does not comport with the

requirements of Due Process.



      As shown by his Declaration, Relator is not dissatisfied with his attorney and

has not requested new counsel to be appointed. The notice that counsel received

from the court does not indicate, in any fashion, that Respondent was going to

consider, much less act on, removing Relator's counsel.



      As no request for new counsel was made and since the notice of the hearing

on Relator's ex parte motions does not indicate that Respondent would consider

                                        14
removing counsel, it is clear that Respondent issued the order complained of sua

sponte and in violation of Relator's Due Process rights. Id.



      Relator's right to counsel implicates his rights under the Fifth, Sixth and

Fourteenth Amendments of the United States Constitution. It also implicates his

rights under Art. 1, §10 of the Texas Constitution.



      This Honorable Court has held "[T]hat the power of the trial court to appoint

counsel to represent indigent defendants does not carry with it the concomitant

power to remove counsel at his discretionary whim." Stearns v. Clinton, 780

S.W.2d 216, 223 (Tex.Crim.App. 1989). But that is what Respondent did.




Entitlement to Writ of Mandamus

      This Court has mandamus jurisdiction in criminal-law matters. Padilla v.

McDaniel, 122 S.W.3d 805, 807 (Tex.Crim.App. 2003)(orig. proceeding)(/?er

curiam).




                                         15
      Mandamus is an extraordinary remedy. Mandamus will issue only to correct

a clear abuse of discretion or the violation of a duty imposed by law. Mandamus

relief is available if the trial court violates a duty imposed by law. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992). A writ of mandamus will issue to

correct trial court actions when there has been a clear abuse of discretion,

particularly where the remedy by appeal is inadequate. In re Kuntz, 124 S.W.3d

179, 180 (Tex. 2003); Ayers v. Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia

v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244

(Tex. 1978); Walker, 827 S.W.2d at 843; Jampole v. Touchy, 613 S.W.2d 569, 572

(Tex. 1984). A trial court abuses its discretion if it acts without reference to any

guiding rules and principles or if the trial court's act is arbitrary or unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "A

trial court has no discretion in determining what the law is or applying the law to

the facts." Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996)(citing Walker, 827

S.W.2d at 840). The "trial court's erroneous legal conclusion, even in an unsettled

area of law, is an abuse of discretion." Id.



      A writ of mandamus will issue to correct trial court actions when there has

been a clear abuse of discretion, particularly where the remedy by appeal is

                                           16
inadequate. Ayers v. Canales, 790 S.W.2d at 556; Garcia v. Peeples, 734 S.W.2d

at 345; West v. Solito, 563 S.W.2d at 244.



      The Court of Criminal Appeals has held "[t]hat the power of the trial court

to appoint counsel to represent indigent defendants does not carry with it the

concomitant power to remove counsel at his discretionary whim." Stearns v.

Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App. 1989). A trial court cannot remove

appointed counsel merely because he wants a different attorney to handle the case

based on his personal feelings and preferences and mandamus is the appropriate

remedy. Id; Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App. 1992); Stotts v.

Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995); see Bowen v. Carnes, 843 S.W.3d

805 (Tex.Crim.App. 2011). But that is exactly what the Respondent has done in

the case at bar. He has violated the law as laid down by this Court in Stearns v.

Clinton. 780 S.W.2d 216. And in so doing, he has acted directly in contravention

of controlling precedent to interfere with the attorney-client relationship between

Relator and Tracy D. Cluck. Mandamus should issue to set aside Respondent's

order substituting Gary Prust for Tracy D. Cluck as Relator's attorney.




                                         17
       ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue to

       prohibit Respondent from holding any hearings on the case until such time

       as the application for writ of mandamus shall have been determined.



       Respondent has set the case on the trial court's docket on August 27, 2015

for hearing on Relator's pre-trial motions and on September 14, 2015 for jury trial.

As it stands, Tracy D. Cluck has been removed as Relator's attorney and has no

right to represent Relator at the pre-trial hearing or jury trial. Relator does not

know whether this Court can rule on this application before this hearing and/or the

jury trial occur.



Entitlement to Writ of Prohibition



       The writ of prohibition is an extraordinary judicial writ that may be issued

by a Court of Appeals, as a court of superior jurisdiction, directed to a court of

inferior jurisdiction.   Its purpose may be to prevent an inferior tribunal from

exercising a jurisdiction that it has no lawful right to exercise.     The writ of

prohibition as used in Texas has three principal functions:         (1) preventing

interference with the higher courts in deciding a pending appeal; (2) preventing an

                                        18
inferior court from entertaining suits which will re-litigate controversies which

have already been settled by the issuing court; and (3) prohibiting a trial court's

action when it affirmatively appears that the court lacks jurisdiction. Humble Oil

Co. Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App.—Dallas 1982, orig.

proceeding).



      Mandamus and prohibition are available in a criminal proceeding if the

relator shows that: (1) the act he seeks to compel or prohibit does not involve a

discretionary or judicial decision; and (2) he has no adequate remedy at law to

redress the harm that he alleges will ensue. Simon v. Levario, 306 S.W.3d 318

(Tex.Crim.App. 2009)(orig. proceeding); see also In re State ex rel. Weeks, 391

S.W.3d 117, 122-23 (Tex.Crim.App. 2013)(orig. proceeding); Deleon v. Aguilar,

127 S.W.3d 1, 5 (Tex.Crim.App. 2004)(orig. procededing).           The first prong

requires the relator to show that he has a clear right to the relief sought, meaning

that the facts and circumstances dictate only one rational decision under

unequivocal, well-settled, and clearly controlling legal principles. Simon, 306

S.W.3d at 320. When a relator seeks extraordinary relief that amounts to the

undoing of an accomplished judicial act, that relief is more in the nature of

mandamus than prohibition. Id. at 320, n. 2.

                                        19
      Any attempt by Respondent to force the underlying case to hearings or to

trial will interfere with this Court's jurisdiction and will deprive Relator of the

right to have the impropriety of the challenged order removing Tracy D. Cluck as

his attorney determined before he is subjected to hearings or trial hereunder.



      A writ of prohibition should issue to prevent the Respondent from taking

any action to proceed to hold hearings or to proceed to trial on the indictment

against respondent.



                          CONCLUSION & PRAYER



      This Court should hold that Respondent abused his discretion when he

removed Tracy D. Cluck as Relator's attorney, sua sponte and without notice that

comported with the requirements of Due Process. This Court should further hold

that a writ of prohibition is necessary to prevent the Respondent from holding

hearings or from proceeding to trial on the indictment against Relator. This Court

should thereafter issue its writs of mandamus and prohibition in conformity with



                                         20
the allegations of this Petition and the Court's findings. This Court should grant

Relator general relief.



                                     Respectfully submitted,




                                     TRACY D. CLUCK
                                     Tex. Bar No. 00787254
                                     12600 Hill Country Blvd., Ste. R-275
                                     Austin, Texas 78738
                                     Tel: (512)329-2615
                                     Fax: (512)329-2604
                                     tracy@tracyclucklawyer.com

                                     L. T. "Butch" Bradt
                                     14015 Southwest Freeway, Suite 4
                                     Sugar Land, Texas 77478
                                     Tel: (281)201-0700
                                     Fax: (281)201-1202
                                     ltbradt@flash.net

                                     ATTORNEYS FOR RELATOR
                                     THOMAS ALLEN SIMON

                          CERTIFICATE OF SERVICE

       I, the undersigned attorney, in accordance with Rule 9.5, Tex.R.App.P.,
certify that a true and correct copy of the foregoing Petition was delivered on
August 25, 2015, by e-mail, to:

Honorable Evan Stubbs
424th Judicial District Court

                                       21
1701 E.Polk St., Ste. 74
Burnet, Texas 78611
424distjudge@gmail.com

Hon. Wiley B. "Sonny" McAfee
33rd & 424th Judicial District Attorney
Gary Bunyard, Asst. Dist. Arty.
1701 E.Polk St., Ste. 24
Burnet, Texas 78611
Wiley 145 0@yahoo.com
g.bunyard@co.llano.tx.us

Gary Prust
1607 Nueces St.
Austin, Texas 78701
gary@prustlaw.com
                                          TRACY D. CLUCK


                      CERTIFICATE OF WORD COUNT

      I certify that the pertinent portion of this Petition for Writ of Mandamus and
Writ of Prohibition is comprised of approximately 3481 words.


                                          TRACY D. CLUCK


                     TRAP RULE 52.7(a)(2) STATEMENT

      A record of testimony was made of the ex parte hearing on Relator's ex
parte motions by the official court reporter for the 424* District Court of Burnet
County, Texas, Jennifer M. Fest, 208 Elm Lodge Dr., Kingsland, TX 78639, (512)
715-4238, 424reporter@dcourttexas.org. No exhibits were field at this hearing.
However, this hearing contains testimony and discussion relevant to this original
proceeding. Relator, by and through his attorney, Tracy D. Cluck, has requested
the record of this hearing. A true and correct copy of the e-mail requesting the

                                           22
record is attached in the Appendix hereto, marked as exhibit 8, and incorporated by
reference for all purposes. This was a closed, ex parte hearing where confidential
matters regarding Relators case were discussed with the court. No members of the
general public or representative of the State were present or allowed to be present
during this confidential hearing. This petition, once filed, is a public record, which
must be served on the prosecuting attorney in Relator's criminal case. As such
counsel is not able to attach the record from the hearing as required by Texas Rules
of Appellate Procedure 52.7(a)(2) without breaching his ethical duty of
confidentiality to Relator. Relator requests that the Court of Criminal Appeals
order the court reporter to forthwith file a sealed record of the hearing held on
August 7, 2015 with Court of Criminal Appeals in order to preserve lawyer/client
privilege and the constitutional rights of Relator to due process.



                                       TRACY D. CLUCK




                                         23
APPENDIX




   24
f

    NO: ^fffiOft      THE STATE OF TEXAS            VS.      THOMAS ALLEN SIMON

    COUNTI
    INDICTMENT:                    SEXUAL ASSAULT
    PENAL CODE:                    22.0Il(aXl)
    DEGREE OF FELONY:              SECOND DEGREE FELONY
    OFFENSE CODE:                  11990001
    BOND:

    COUNTn
    INDICTMENT:                     SEXUAL ASSAULT
    PENAL CODE:                     22.01 l(aXl)
    DEGREE OF FELONY:               SECOND DEGREE FELONY
    OFFENSE CODE:                   11990001
    BOND:                           /OO, ana, eo      jQ

    COUNT i n
    INDICTMENT:                     AGG ASSAULT W/DEADLY WEAPON
    PENAL CODE:                     22.02(a)(2)
    DEGREE OF FELONY:               SECOND DEGREE FELONY
    OFFENSE CODE:                   13150005     _
    BOND:

    CONTROL #DA-14-00599            TRN#9192634370 D001;D002; A001

    IN THE 424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS


    IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:


           THE GRAND JURY, for the County of Burnet, State of Texas, duly organized,

    impaneled and sworn as such at the January term, A.D. 2014, of the 424th Judicial District

    Court for said County, upon their oaths present in and to said court at said term that,

    THOMAS ALLEN SIMON, hereinafterreferredto as Defendant, on or about the 1* day

    of September, 2012 and before the presentment of this indictment, in the County of

    Burnet, and the State of Texas, did then and there intentionally or knowingly cause the



                                                                                    Page 1 of 2




                                                                        Exhibit
penetration of the sexual organ of Rebecca Schailer by the Defendant's sexual organ,

without the consent of Rebecca Schailer.

                                      COUNT II                                               I

       AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or

about the I s day of September, 2012, and before the presentment of this indictment, in

the County of Burnet, and the State of Texas, the Defendant did then and there

intentionally or knowingly cause the penetration of the anus of Rebecca Schailer by the

Defendant's sexual organ, without the consent of Rebecca Schailer.

                                      COUNT in

       AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or

about the 25th day of January, 2014, and before the presentment of this indictment, in the

County of Burnet, and the State of Texas, the Defendant did then and there intentionally,

knowingly, and recklessly cause bodily injury to Rebecca Schailer by striking her with

his hand, and the Defendant did then and there use a deadly weapon, to-wit: the

Defendant's hand, during the commission of said assault.



AGAINST THE PEACE AND DIGNITY OF THE STATE




                                            FOREPERSON OF THE GRAND JURY




                                                                                 toptofz
Roxanne Nelson <magistrate@burnetcountytexas.org>                                           April 8, 2014 8:56 AM
To: "Tim Cowart'" <jtcowart@timcowartlawoffice.com>, "Tracy Cluck'"
<tracy @tracyclucklawyer. com>
RE: Thomas Simon



Mr. Cluck:

Consider this notice that you have been substituted on Mr. Simon's felony case(s).



From: Tim Cowart [mailto:jtcowart@timcowartlawofflce.com]
Sent: Monday, April 07, 2014 10:40 PM
To: Tracy Cluck
Cc: Roxanne Nelson
Subject: Re: Thomas Simon

Judge Nelson,

Please consider this as a request to substitute Tracy Cluck as appointed counsel for Mr. Simon's felony case(s).

As you may see from the quoted email correspondence, Mr. Cluck is familiar with Mr. Simon's situation, having been
his lawyer on misdemeanor charges since last year.

Thank you for your courtesies and attention.

Sincerely,

Tim Cowart
Attorney at Law

Reply Email:
itcowartfg)timcowartlawoffice.com

Llano:
(325)247-5486
Marble Falls:
(830)798-1063
Facsimile: (866)418-4160

URL:
http://www.timcowartlawoffice.com

CONFIDENTIALITY NOTICE:


The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only
the individual or organization named above. If you are not the intended recipient or an authorized representative of
the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its
attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please


                                                                                      Exhibit
Jennifer Bunting <424coordinator@dcourttexas.org>    Augusts, 2015 223 PM
To: Tracy Ciuck
42908; Thomas Simon




Dear Mr. Cluck:

Judge Stubbs wants a hearing on your motion for
additional funds. I will not put on the docket what the
hearing \s for since it \s ex-parte but the hearing will
be set for August 7 at 9:00 a.m.



Best Regards,

Jennifer Bunting
424th Judicial District Court Coordinator
1701 E. Polk
Burnet, TX 78611
512-756-5438 telephone
512-756-8478 facsimile

Honorable Judge Evan Stubbs Presiding




                                                    Exhibit
                                 In The 33ra/424(n Judicial District Court of Burnet County                                8/4/2015 10:46 AM

                                                      State of Texas
                                                 Honorable Evan Stubbs
                                                     Criminal Docket
                                           Friday, August 07, 2015 at 9:00 AM


12) 43758 - Status.H?arinfl.at..?;00 AM.
SANDERS, TIMOTHY LARS                                                                                                            Davis, Richard
                                                                                                                                 512-756-5117
 Warrant Status: Served
                      Degree: Offense:                                                                                         Court Appointed
                       (F2)MAN DEL CS PG 1A >=20<80AU                                                                              03/26/2015
 I H J A I L 70

                               Bond Information:
                                     $35,000.00 2015-001 PATS BAIL BONDS
Continuances: 0            30 Days 01/20/2015 - 02/18/2015
Last Court Date: 07/28/2015
Related Cases:
Memo:                                                                                     Assessed Fees:             Projected Crt Costs:
Future Hearing Date: 08/27/2015; 09/14/2015
Age of Case: 182                                                                                    $0.00                             $284.00
Indictment Date: 02/03/2015
                                                                                                            TOTAL:                    $284.00
13) 42908 - Status Hearing.at..9:00 AM
SIMON, THOMAS ALLEN                                                                                                             Cluck, Tracy D.
                                                                                                                                 512-329-2615
 Warrant Status: Served
                      Degree: Offense:                                                                                         Court Appointed
                       (F2)SEXUAL ASSAULT                                                                                          06/06/2014
I N JAIL 511           (F2)SEXUAL ASSAULT
                       (F2)AGG ASSAULT W/DEADLY WEAPON


                            421 Days as of 08-04-2015 06/10/2014-; 421 Days as of 08-04-2015 06/10/2014-; 511 Days as of 08-04-2015
Continuances: 0         03/12/2014 -
Last Court Date: 06/10/2015
Related Cases:
Memo:                                                                                       Assessed Fees:          Projected Crt Costs:
Future Hearing Date: 08/27/2015; 09/14/2015
Age of Case: 427                                                                                     $50.00                          $474.00
Indictment Date: 06/03/2014
                                                                                                            TOTAL:                   $524.00
14) 44179 • Status .Hearing.at. .9:00 AM
TAYLOR, CALVIN ERNEST JR.                                                                                                              Def, Pub
                                                                                                                                  512-234-3061
 Warrant Status:
                     Degree: Offense:                                                                                          Court Appointed
                       (F1)MAN DEL CS PG 1 >=4G<200G                                                                               02/13/2015
IN JAIL 174



Continuances: 3            174 Days as of 08-04-2015 02/12/2015 •
Last Court Date: 07/20/2015
Related Cases:
Memo:                                                                                     Assessed Fees:             Projected Crt Costs:
Future Hearing Date:
Age of Case: 63                                                                                     $0.00                             $284.00
Indictment Date: 06/02/2015
                                                                                                            TOTAL:                    $284.00
(Rev. 12/01)                                     CAUSE NO. 42908

THE STATE OF TEXAS                                         §                            IN THE DISTRICT COURT OF
v.                                                         §
                                                           §                                BURNET COUNTY, TEXAS
THOMAS ALLEN SIMON                                         §

                   ORDER ON DEFENDANT'S APPLICATION FOR APPOINTMENT OF ATTORNEY

          After considering the application for appointment of attorney fifed by the Defendant in the above entitled and
numbered cause, and the evidence in support thereof and in opposition thereto, the Court finds that:
D Defendant D is X is not D is not fully financially able to employ an attorney and that Defendant's
application for appointment should be X GRANTED            D DENIED.
D Defendant has not properly completed the Application and the same is hereby DENIED based on:
          D Inadequate attempts to hire attorney when apparently able.
          • Inadequate attempts to borrow money. D See highlighted areas.
          • Has assets capable of obtaining loan - must submit at least two loan rejections.
          D Financial information is not credible - hearing is required before the judge.
          D Other .                                               _ _ _ _ _ _ _ _ _ _ ___

It is accordingly ORDERED that:
X         • Public Defender's Office OR X GARY PRUST. Substituting for Tracv Cluck be and is hereby appointed
          to represent said Defendant.
          • The Court finds that Defendant is able to pay $     toward attorney fees and is hereby ORDERED
         to deposit such sum in the Attorney's Trust Account on or before D                      days from this date,
         or
                D at the rate of $            per (wk)(mo)(ea. Paycheck) until such sum is accumulated. Attorney
                shall immediately inform the Court if any payment is missed. If presently in jail, defendant is
                ORDERED to begin such payments beginning one week after release on bond.
D        Defendant employ an attorney for this proceeding and appear, with counsel, before this Court in
                                      County, Texas, on                                 , 19       , at
         o'clock       ,m. for the purpose of
         D Review of Application for Ct. appt'd Attorney D Arraignment, O Appearance of counsel,
         D Status Hearing D Other


and, if failing to hire counsel, Defendant shall show cause for the failure to do so and may be held in contempt.

         Signed on August 7,2015.




                                                                Judge Presiding
l-fjifct
   (if checked) Following receipt is required,
         I hereby acknowledge receipt ol a copy of this ORDER, on k V C ^ X - L .      *f                   20      \7.

                                                       JjA&»*J?h,£'7ll.                     -f ?\~
                                                       Defendant
CC District Attorney
   Tracy Cluck
   Gary Prust (Prior Attorney-Client Relationship)
   Thomas Allen Simon



                                                                                            Exhibit
                            Cause No. 42908
    SEXUAL ASSAULT; SEXUAL ASSAULT; AGG ASSAULT W/DEADLY WEAPON

      THE STATE OF TEXAS                       §                       IN THE 424TH DISTRICT COURT

       v.                                      §                                 OF

      THOMAS ALLEN SIMON                       §                           BURNET COUNTY, TEXAS


                            NOTICE OF SETTING OR RESETTING

The above entitled and numbered cause is hereby set/reset for the following date (s) and purpose
(s). All times are 9:00 a.m. unless noted to the contrary.

28.01 Hearing        August 27,2015                   9:00 AM
Plea Deadline Docket August 27, 2015                  9:00 AM
Jury Trial           September 14,2015                8:30 AM


GENERATED this 10th day of June, 2015


IN CRIMINAL CASES, FAILURE OF A DEFENDANT TO APPEAR FOR ANY SETTING
ABOVE MAY RESULT IN FORFEITURE OF BOND AND ISSUANCE OF CAPIAS FOR
ARREST. IN ALL CASES, FAILURE OF AN ATTORNEY TO APPEAR MAY RESULT IN
APPROPRIATE SANCTIONS BEING IMPOSED UPON THE ATTORNEY.

Original to the Court File. Copies of this notice have been sent to:

District Attorney
P.O. Box 725
Llano, TX 78643

TRACY D. CLUCK




                                                                         Exhibit
                                  Affidavit of Thomas Simon

        1.      My name is Thomas Simon. I am the Defendant in Cause No. 42908 in the 4241
Judicial District of Burnet County, Texas.

       2.      It is my desire that Tracy D. Cluck remain as my court appointed attorney in my
criminal case.

Affiant further sayeth not.




                                               lomas Simon


                                                                  -^-4.^
         My name is Thomas Simon. My date of birth is j ? " " " ^ ^ ~£ 7 - ? , and my inmate
identification number is 26546. I am presently incarcerated in the Burnet County Jail in Burnet,
Burnet County, Texas 78611. I declare under penalty of perjury that the foregoing is true and
correct.

Executed on the /      day of August, 2015.



                                              ftiomas Simon




                                                                       Exhibit 10
         UNSWORN DECLARATION OF TRACY D. CLUCK
       Under 28 U.S.C. §1746 and Texas Civil Practices & Remedies Code
§132.001 et seq., I declare under penalties of perjury that my name is Tracy
D. Cluck. I am over the age of 18 years and competent to make this
declaration. My date of birth is October 4, 1961. My address is 12600 Hill
Country Blvd., Ste. R-275, Austin, Texas 78738. This document is not a
lien required to be filed with a county clerk, an instrument concerning real or
personal property required to be filed with a county clerk, or an oath of
office or an oath required to be taken before a specified official other than a
notary public. I have not been forced to sign this declaration. I declare
under penalties of perjury that all assertions provided in this document are
correct and true.

       The documents attached to the Petition for Writ of Mandamus and
Writ of Prohibition are true and correct copies of the original documents,
which are found among the papers of Cause No. 42908 in the Office of the
District Clerk of Burnet County, Texas or from my files. I did not request to
be removed as attorney for Thomas Allen Simon. I did not receive notice
that the trial court would hear the issue of substitution of counsel at the
hearing on Relator's ex parte motions held on August 7, 2015. Thomas
Allen Simon did not ask that I be removed as his attorney prior to, during or
after that hearing. The hearing was ex parte, in a closed courtroom, with
only me, Relator (who was and is in the custody of the Burnet County
Sheriff), Respondent, a Deputy Sheriff, a representative of the District
Clerk's Office, and the official court reporter for the 424th Judicial District
Court of Burnet County, Jennifer M. Fest (who made a record of the
hearing). At that hearing the trial court sua sponte removed me immediately
as Relator's attorney over my objection and did not rule on Relator's ex
parte motions.

      Signed on August 9, 2015.




                                       TRACY D.




                                                        Exhibit       a
Tracy Cluck <tracy@tracyclucklawyer.com>                                                                  August?. 2015 4:20 PF
Try . I p n n i f p r M n f f m s n « < d ? d r p n o r t p r ( q ) r l r n i j r t t p y a c ; o r n >

Simon Ex Parte Hearing 8/7/15, No. 42908, Burnet



Hi Ms. Hoffman,

I would like to obtain a transcript of the ex part hearing in State of
Texas v. Thomas Simon, Cause No. 42908, In The 424th District Court
of Burnet County, held this morning, 8/7/2015, in Burnet County,
Texas.

Please let me know the cost for this and I will pay you for the record of
this hearing. You can provide this to me in electronic form.

Also, please preserve all of your records of this hearing, including but
not limited to, tape recordings, electronic files, and stenograph tapes.

Thank you for your prompt attention to this matter.

With kindest regards,

Tracy D. Cluck

(512) 329-2615 Austin/Bee Cave
(512) 264-9997 San Antonio/Hill Country
www.tracyclucklawyer.com




                                                                                                            Exhibit
                                                                                  03-15-00500-
                                                                                      64194
                                                                      THIRD COURT OF APPEA
                                                                                AUSTIN. TEX
                                                                            8/10/2015 10:31:31/
                                                                               JEFFREY D. KY
                                 03-15-00500-CV                                         CLE
                  DOCKET NO.

                               IN THE
                         COURT OF APPEALS
                       FOR THE THIRD DISTRICT
                           AUSTIN, TEXAS


                                 IN RE:
                           THOMAS ALLEN SIMON
                                 Relator


            PETITION FOR WRIT OF MANDAMUS AND
                  FOR WRIT OF PROHIBITION


                      Trial Court Cause No. 42908
                      th
           In The 424 Judicial District of Burnet County, Texas
                    Honorable Evan Stubbs, Presiding


Tracy D. Cluck                            L. T. "Butch" Bradt
Texas Bar No. 00787254                    Texas Bar No. 02841600
 12600 Hill Country Blvd., Ste. R-275      14015 Southwest Frwy., Suite 4
Austin, Texas 78738                       Sugar Land, Texas 77478
Tel: (512)329-2615                        Tel: (281)201-0700
Fax: (512)329-2604                        Fax: (281)201-1202
tracy@tracyclucklawver.com                ltbradt@flash.net
Attorney for Relator                      Of Counsel to Relator
Thomas Allen Simon




                                                     Exhibit      °i
              IDENTITIES OF PARTIES AND COUNSEL


Relator:    Thomas Allen Simon


Counsel for Relator:

Tracy D. Cluck
Tex. Bar No. 00787254
12600 Hill Country Blvd., Ste. R-275
Austin, Texas 78738
Tel: (512)329-2615
Fax: (512)329-2604
tracy@tracyclucklawyer.com

L. T. "Butch" Bradt
Tex. Bar No. 02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478-3500
Tel: (281)201-0700
Fax: (281)201-1202
ltbradt@flash.net



Respondent:

Honorable Evan Stubbs
424th Judicial District Court
Burnet County Courthouse Annex North
1701 E.Polk Street, Ste. 74
Burnet, Texas 78611
Tel: (512)756-5438
Fax:(512)756-8478
424distj udge@gmail.com
Real Parties In Interest

State of Texas

Counsel for the State of Texas:

Hon. Wiley B. "Sonny" McAfee
33rd & 424th Judicial District Attorney
Burnet County Courthouse Annex North
1701 E.Polk Street, Ste. 24
Tel: (512)756-7609
Fax: (512)756-8572
wi 1 ey 14 5 0 @yahoo.com



Gary Prust
1607 Nueces St
Austin, Texas 78701
Tel: (512)469-0092
Fax: (512)469-9102
gary@prustlaw.com
                      TABLE OF CONTENTS

                                                                     Page

IDENTITIES OF PARTIES AND COUNSEL                                      2

TABLE OF CONTENTS                                                      4

TABLE OF AUTHORITIES                                                   6

STATEMENT OF THE CASE                                                  8

STATEMENT OF JURISDICTION                                              9

ISSUES PRESENTED                                                       9

    ISSUE NO. ONE: Does the power of the trial court to appoint
    counsel to represent indigent defendants carry with it the concomitant
    power to remove counsel at the judge's discretionary whim? If not,
    will mandamus issue to cause Respondent to set aside his order
    substituting Gary Prust as appointed counsel to represent Relator?...9

    ISSUE NO. TWO: When a defendant is seeking mandamus relief to
    set aside an order appointing new counsel, will a writ of prohibition
    issue to stay the proceedings in the trial court to thereby prevent
    interference with the jurisdiction of the Court of Appeals?       10

STATEMENT OF FACTS                                                     10

SUMMARY OF THE ARGUMENT                                                 12

ARGUMENT AND AUTHORITY                                                  13

    ISSUE NO. ONE RESTATED: The power of the trial court to
    appoint counsel to represent indigent defendants does not carry with it
    the concomitant power to remove counsel at the judge's discretionary
    whim and mandamus should issue to cause the order removing
    counsel to be vacated                                              13

    Entitlement to Writ of Mandamus                                     14
    ISSUE NO. TWO RESTATED:               A Writ of Prohibition should
    issue to prohibit Respondent from holding any hearings on the case
    until such time as the application for writ of mandamus shall have
    been determined                                               16

    Entitlement to Writ of Prohibition                           17

CONCLUSION & PRAYER                                              19

CERTIFICATE OF SERVICE                                           20

CERTIFICATE OF WORD COUNT                                        21

TRAP RULE 52.7(a)(2) STATEMENT                                   21

APPENDIX                                                         22
                       TABLE OF AUTHORITIES

State Cases                                                   Page

Ayersv. Candles, 790 S.W.2d 554 (Tex. 1990)                   14, 15

Bowen v. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011)             16

Buntion v. Harmon, 827 S.W.3d 945 (Tex.Crim.App. 1992)           16

DeLeon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App. 2004)
     (orig. proceeding)                                          18

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238

      (Tex. 1985)                                                15

Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987)                    15

Huie v. DeSahzo, 922 S.W.2d 920 (Tex. 1996)                      15

Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941

      (Tex.App.—Dallas 1982, orig. proceeding)                   17

InreKuntz, 124 S.W.3d 179 (Tex. 2003)                           14

In re State ex rel. Weeks, 391 S.W.3d 117

      (Tex.Crim.App. 2013) (orig. proceeding)                   18

Jampolev. Touchy, 673 S.W.2d 569 (Tex. 1984)                    15

Padilla v. McDaniel, 122 S.W.3d 805
      (Tex.Crim.App. 2003) (orig. proceeding) (per curiam)      14
Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009)

      (orig. proceeding)                                        18

Stearns v. Clinton, 780 S.W.2d 216 (Tex.Crim.App. 1989)      15, 16

Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995)          16
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)   14,15

West v. Solito, 563 S.W.2d 240 (Tex. 1978)         15


State Statutes

Art. 1, §10, Texas Constitution                9, 14

§22.221(a) and(b), Texas Government Code       9, 14


U. S. Constitution

Amend. V, U.S. Constitution                    9, 14

Amend. VI, U.S. Constitution                   9, 14

Amend. XIV, U.S. Constitution                  9, 14
TO THE HONORABLE COURT OF APPEALS:



Relator, Thomas Allen Simon, shows:



                      STATEMENT OF THE CASE



      The underlying suit (Cause No. 42908 in the 424th Judicial District

Court of Burnet County, Texas) is an indictment alleging two counts of

aggravated sexual assault and one count of aggravated assault. On April 8,

2014, Tracy D. Cluck was appointed to represent Relator in his then un-

indicted felony cases in Burnet County. Relator is incarcerated in the Burnet

County Jail pending trial. This case is set for hearing on pre-trial motions on

August 27, 2015 and for jury trial on September 14, 2015. Relator, by and

through his attorney, Tracy D. Cluck, filed ex parte motions on July 31,

2015 seeking funds for a medical expert and additional funds for

investigation services.   The trial court set these matters for hearing on

August 7, 2015 and sent notice to Tracy D. Cluck to appear. The hearing

was held ex parte in a closed courtroom, with Relator present, and a record

was made. Although Relator had not expressed any dissatisfaction with

Cluck or even any desire to have Cluck removed from his case, Respondent
sua sponte ordered that Cluck be immediately removed as attorney for

Relator. Later that day, Respondent signed an order substituting Gary Prust

as attorney for Relator. The case is now set on the trial court's docket for

pre-trial hearing and jury trial as set out above.



                    STATEMENT OF JURISDICTION



      This Court has jurisdiction of this Petition under §22.221(a) and (b) of

the Texas Government Code. This Petition is also brought under the Fifth,

Sixth and Fourteenth Amendments of the United States Constitution and

under Art. 1, §10 of the Texas Constitution.



                            ISSUES PRESETNED



      ISSUE NO. ONE: Does the power of the trial court to appoint

counsel to represent indigent defendants carry with it the concomitant power

to remove counsel at the judge's discretionary whim? If not, will mandamus

issue to cause Respondent to set aside his order substituting Gary Prust as

appointed counsel to represent Relator?
      ISSUE NO. TWO: When a defendant is seeking mandamus relief to

set aside an order appointing new counsel, will a writ or prohibition issue to

stay proceedings in the trial court to thereby prevent interference with the

jurisdiction of the Court of Appeals?



                        STATEMENT OF FACTS



      Relator was indicted June 3, 2014 for two counts of aggravated sexual

assault and one count of aggravated assault. A true copy of that indictment

is attached in the Appendix hereto, marked as Exhibit 1, and incorporated by

reference for all purposes. Relator denies the allegations of that indictment.



      On April 8, 2014 Tracy D. Cluck was appointed to represent Relator

with respect to his then un-indicted felony cases in Burnet County

(subsequently indicted as Cause No. 42908 in the 424th District Court of

Burnet County, Texas). A true and correct copy of the e-mail notice of

appointment to counsel is attached in the Appendix hereto, marked as

Exhibit 2, and incorporated by reference for all purposes.




                                        10
      On July 31, 2015 Relator, by and through his attorney Tracy D. Cluck,

filed ex parte motions seeking funds for a medical expert and additional

funds for investigative services. On August 3, 2015 counsel received an

email notice from the court notifying him that Respondent had set the matter

for hearing on August 7, 2015. On August 7, 2015 the court held an ex parte

hearing in a closed courtroom with Relator present. A record of that hearing

was made by the official court reporter for the 424th District Court, Jennifer

M. Fest. A true and correct copy of the notice of the e-mail notice of this

hearing and the docket sheet is attached in the Appendix hereto, marked as

Exhibit 3, and incorporated by reference for all purposes.



      On August 7, 2015, at the ex parte hearing on Relator's ex parte

motion, Respondent sua sponte removed Tracy D. Cluck as Relator's

attorney.   Later that day Respondent appointed Gary Prust to represent

Relator. A true and correct copy of that order is attached in the Appendix

hereto, marked as Exhibit 4, and incorporated by reference for all purposes.

Relator's case is set for hearing on pre-trial motions on August 27, 2015 at

9:00 a.m. and for jury trial on September 2015 at 8:30 a.m. A true and

correct copy of the order setting these matters on the court's docket is




                                      11
attached in the Appendix hereto, marked as Exhibit 5, and incorporated by

reference for all purposes.



      Relator has not requested new counsel and, indeed, wishes for Tracy

D. Cluck to continue to represent him. See Relator's Affidavit (Unsworn

Declaration), which is attached in the Appendix hereto, marked as Exhibit 6,

and incorporated by reference for all purposes.



      Tracy D. Cluck did not request to be removed as attorney for Relator

nor did he receive notice that the trial court would hear the issue of

substitution of counsel at the hearing on Relator's ex parte motions held on

August 7, 2015.     See Declaration of Tracy D. Cluck, attached in the

Appendix hereto, marked as Exhibit 7, and incorporated by reference for all

purposes. The instant application results.



                   SUMMARY OF THE ARGUMENT



      A trial judge acts without reference to guiding authority when he

removes appointed counsel from representing an indigent defendant and

appoints new counsel. Mandamus will issue to require the trial judge to set



                                      12
aside that order. Mandamus relief is available to address this abuse of

discretion as Relator has no adequate remedy by appeal and is entitled to

mandamus relief.



      A writ of prohibition should issue to prohibit Respondent from taking

any further action on the underlying case until this appellate proceeding is

concluded.



                   ARGUMENT AND AUTHORITY



      ISSUE NO. ONE RESTATED: The power of the trial court to

      appoint counsel to represent indigent defendants does not carry with it

      the concomitant power to remove counsel at the judge's discretionary

      whim and mandamus should issue to cause the order removing

      counsel to be vacated.



      As shown by his Declaration, Relator is not dissatisfied with his

attorney and has not requested new counsel to be appointed. As no request

for new counsel was made and since notice of the hearing on Relator's ex

parte motions does not indicate that the issue of substitution of counsel



                                     13
would be heard by the trial court, it is clear that Respondent issued the order

complained of sua sponte.



       Relator's right to counsel implicates his rights under the Fifth, Sixth

and Fourteenth Amendments of the United States Constitution.           It also

implicates his rights under Art. 1, §10 of the Texas Constitution.



Entitlement to Writ of Mandamus



       This court has concurrent mandamus jurisdiction with the Texas Court

of Criminal Appeals in criminal-law matters. Padilla v. McDaniel, 122

S.W.3d 805, 807 (Tex.Crim.App. 2003)(orig. proceeding)(/?er curiam).



       Mandamus is an extraordinary remedy. Mandamus will issue only to

correct a clear abuse of discretion or the violation of a duty imposed by law.

Mandamus relief is available if the trial court violates a duty imposed by

law.   Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A writ of

mandamus will issue to correct trial court actions when there has been a

clear abuse of discretion, particularly where the remedy by appeal is

inadequate.   In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003); Ayers v.



                                      14
Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d

343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978);

Walker, 827 S.W.2d at 843; Jampole v. Touchy, 613 S.W.2d 569, 572 (Tex.

1984). A trial court abuses its discretion if it acts without reference to any

guiding rules and principles or if the trial court's act is arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985). "A trial court has no discretion in determining what the

law is or applying the law to the facts." Huie v. DeShazo, 922 S.W.2d 920,

927 (Tex. 1996)(citing Walker, 827 S.W.2d at 840). The "trial court's

erroneous legal conclusion, even in an unsettled area of law, is an abuse of

discretion." Id.



      A writ of mandamus will issue to correct trial court actions when there

has been a clear abuse of discretion, particularly where the remedy by appeal

is inadequate. Ayers v. Canales, 790 S.W.2d at 556; Garcia v. Peeples, 734

S.W.2d at 345; West v. Solito, 563 S.W.2d at 244.



      The Court of Criminal Appeals has held "[t]hat the power of the trial

court to appoint counsel to represent indigent defendants does not carry with

it the concomitant power to remove counsel at his discretionary whim."



                                     15
Stearns v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App. 1989). A trial

court cannot remove appointed counsel merely because he wants a different

attorney to handle the case based on his personal feelings and preferences

and mandamus is the appropriate remedy. Id; Buntion v. Harmon, 827

S.W.2d 945 (Tex.Crim.App. 1992); Stotts v. Wisser, 894 S.W.2d 366

(Tex.Crim.App.      1995); see Bowen v. Carries, 843         S.W.3d    805

(Tex.Crim.App. 2011). But that is exactly what the Respondent has done in

the case at bar. And in so doing, he has acted directly in contravention of

controlling precedent to interfere with the attorney-client relationship

between Relator and Tracy D. Cluck. Mandamus should issue to set aside

Respondent's order substituting Gary Prust for Tracy D. Cluck as Relator's

attorney.



      ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue

      to prohibit Respondent from holding any hearings on the case until

      such time as the application for writ of mandamus shall have been

      determined.



      Respondent has set the case on the trial court's docket on August 27,

2015 for hearing on Relator's pre-trial motions and on September 14, 2015



                                    16
for jury trial. As it stands, Tracy D. Cluck has been removed as Relator's

attorney and has no right to represent Relator at the pre-trial hearing or jury

trial. Relator does not know whether this Court can rule on this application

before this hearing and/or the jury trial occur.



Entitlement to Writ of Prohibition



      The writ of prohibition is an extraordinary judicial writ that may be

issued by a Court of Appeals, as a court of superior jurisdiction, directed to a

court of inferior jurisdiction. Its purpose may be to prevent an inferior

tribunal from exercising a jurisdiction that it has no lawful right to exercise.

The writ of prohibition as used in Texas has three principal functions: (1)

preventing interference with the higher courts in deciding a pending appeal;

(2) preventing an inferior court from entertaining suits which will re-litigate

controversies which have already been settled by the issuing court; and (3)

prohibiting a trial court's action when it affirmatively appears that the court

lacks jurisdiction. Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941, 943

(Tex.App.—Dallas 1982, orig. proceeding).




                                       17
      Mandamus and prohibition are available in a criminal proceeding if

the relator shows that: (1) the act he seeks to compel or prohibit does not

involve a discretionary or judicial decision; and (2) he has no adequate

remedy at law to redress the harm that he alleges will ensue. Simon v.

Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009)(orig. proceeding); see also

In re State ex rel. Weeks, 391 S.W.3d 117, 122-23 (Tex.Crim.App.

2013)(orig.   proceeding);    Deleon    v. Aguilar,      127   S.W.3d     1,   5

(Tex.Crim.App. 2004)(orig. procededing).        The first prong requires the

relator to show that he has a clear right to the relief sought, meaning that the

facts and circumstances dictate only one rational decision under

unequivocal, well-settled, and clearly controlling legal principles. Simon,

306 S.W.3d at 320. When a relator seeks extraordinary relief that amounts

to the undoing of an accomplished judicial act, that relief is more in the

nature of mandamus than prohibition. Id. at 320, n. 2.



      Any attempt by Respondent to force the underlying case to hearings

or to trial will interfere with this Court's jurisdiction and will deprive

Relator of the right to have the impropriety of the challenged order removing

Tracy D. Cluck determined before he is subjected to hearings or trial

hereunder.



                                       18
      A writ of prohibition should issue to prevent the Respondent from

taking any action to proceed to hold hearings or to proceed to trial on the

indictment against respondent.



                          CONCLUSION & PRAYER



      This Court should hold that Respondent abused his discretion when he

removed Tracy D. Cluck as Relators attorney and appointed Gary Prust to

represent Relator. This Court should further hold that a writ of prohibition is

necessary to prevent the Respondent from holding hearings or from

proceeding to trial on the indictment against Relator. This Court should

thereafter issue its writs of mandamus and prohibition in conformity with the

allegations of this Petition and the Court's findings. This Court should grant

Relator general relief.



                                       Respectfully submitted,




                                       TRACY D. CLUCK
                                       Tex. Bar No. 00787254
                                       12600 Hill Country Blvd., Ste. R-275

                                      19
                                          Austin, Texas 78738
                                          Tel: (512)329-2615
                                          Fax: (512)329-2604
                                          tracy@tracyclucklawyer.com

                                          ATTORNEY FOR RELATOR
                                          THOMAS ALLEN SIMON

                                          Of Counsel:

                                          L. T. "Butch" Bradt
                                          14015 Southwest Freeway, Suite 4
                                          Sugar Land, Texas 77478
                                          Tel: (281)201-0700
                                          Fax: (281)201-1202
                                          ltbradt@flash.net

                      CERTIFICATE OF SERVICE

      I, the undersigned attorney, in accordance with Rule 9.5,
Tex.R.App.P., certify that a true and correct copy of the foregoing Petition
was delivered on August 10, 2015, by facsimile, to:

Honorable Evan Stubbs
424th Judicial District Court
1701 E.Polk St., Ste. 74
Burnet, Texas 78611
Fax: (512)756-8478

Hon. Wiley B. "Sonny" McAfee
33rd & 424th Judicial District Attorney
1701 E.Polk St, Ste. 24
Burnet, Texas 78611
Fax: (512)756-8572

Gary Prust
1607 Nueces St.
Austin, Texas 78701
Fax: (512)469-9102
                                          TRACY D. CLUCK

                                      20
                   CERTIFICATE OF WORD COUNT

      I certify that the pertinent portion of this Petition for Writ of
Mandamus and Writ of Prohibition is comprised of approximately 3216
words.


                                       TRACY D. CLUCK


                  TRAP RULE 52.7(a)(2) STATEMENT

       A record of testimony was made of the ex parte hearing on Relator's
ex parte motions by the official court reporter for the 424th District Court of
Burnet County, Texas, Jennifer M. Fest, 208 Elm Lodge Dr., Kingsland, TX
78639, (512) 715-4238, 424reporter@dcourttexas.org. No exhibits were
field at this hearing. However, this hearing contains testimony and
discussion relevant to this original proceeding. Relator, by and through his
attorney, Tracy D. Cluck, has requested the record of this hearing. A true
and correct copy of the e-mail requesting the record is attached in the
Appendix hereto, marked as exhibit 8, and incorporated by reference for all
purposes. This was a closed, ex parte hearing where confidential matters
regarding Relators case were discussed with the court. No members of the
general public or representative of the State were present or allowed to be
present during this confidential hearing. This petition, once filed, is a public
record, which must be served on the prosecuting attorney in Relator's
criminal case. As such counsel is not able to attach the record from the
hearing as required by Texas Rules of Appellate Procedure 52.7(a)(2)
without breaching his ethical duty of confidentiality to Relator. Relator
requests that the Court of Appeals order the court reporter to forthwith file a
sealed record of the hearing held on August 7, 2015 with Court of Appeals
in order to preserve lawyer/client privilege and the constitutional rights of
Relator to due process.



                                       TRACY D. CLUCK




                                      21
APPENDIX




   22
NO: H ^ Q g       THE STATE OF TEXAS           VS.      THOMAS ALLEN SIMON

COUNTI
INDICTMENT:                    SEXUAL ASSAULT                                                 I
PENAL CODE;                    22.01 l(aXl)
DEGREE OF FELONY:              SECOND DEGREE FELONY
OFFENSE CODE:                  11990001
BOND:

COUNTn
INDICTMENT:                    SEXUAL ASSAULT
PENAL CODE:                    22.01 l(aXl)
DEGREE OF FELONY:              SECOND DEGREE FELONY
OFFENSE CODE:                  11990001
BOND:

COUNT i n
INDICTMENT:                     AGO ASSAULT W/DEADLY WEAPON
PENAL CODE:                     22.02(aX2)
DEGREE OF FELONY:               SECOND DEGREE FELONY
OFFENSE CODE:                    13150005
BOND:

CONTROL #DA-14-00599            TRN#9192634370 D001;D002; A001

IN THE 424* JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS


IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:


       THE GRAND JURY, for the County of Burnet, State of Texas, duly organized,

impaneled and sworn as such at the January term, A.D. 2014, of die 424* Judicial District

Court for said County, upon their oaths present in and to said court at said term that,

THOMAS ALLEN SIMON, hereinafter referred to as Defendant, on or about the l" day

of September, 2012 and before the presentment of this indictment, in the County of

Burnet, and the State of Texas, did men and there intentionally or knowingly cause the



                                                                                Page 1 of 1




                                                                   Exhibit
\
1   penetration of the sexual organ of Rebecca Schaller by the Defendant's sexual organ,

    withouttiieconsent of Rebecca Schaller.

                                          COUNT II

           AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or

    about the l" day of September, 2012, and before the presentment of this indictment, in

    the County of Burnet, and the Slate of Texas, the Defendant did then and there

    intentionally or knowingly cause the penetration of the anus of Rebecca Schaller by the

    Defendant's sexual organ, without the consent of Rebecca Schaller.

                                         COUNTm

           AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or

    about the 25* day of January, 2014, and before the presentment of this indictment, in the

    County of Burnet, and the State of Texas, the Defendant did then and there intentionally,

    knowingly, and recklessly cause bodily injury to Rebecca Schaller by striking her with

    his hand, and the Defendant did then and there use a deadly weapon, to-wit: the

    Defendant's hand, during the commission of said assault.



    AGAINST THE PEACE AND DIGNITY OF THE STATE




                                               FOREPERSON OF THE GRAND JURY




                                                                                    Ftp 2 of 1
Roxanne Nelson <magistrate@burnetcountytexas.org>                                           April 8, 2014 8:56 AM
To: "Tim Cowartm <jtc»wart@tirrKX)wartlawoffice.com>, "Tracy Cluck'"
<tracy @tracyclucklawyer.com>
RE: Thomas Simon



Mr. Cluck:

Consider this notice that you have been substituted on Mr. Simon's felony case(s).



Prom: Tim Cowart [mailto:itcowart@Wmcowai11awofrice.oorn]
Sent Monday, April 07, 2014 10:40 PM
To: Tracy Cluck
Cc: Roxanne Nelson
Subject: Re: Thomas Simon

Judge Nelson,

Please consider this as a request to substitute Tracy Cluck as appointed counsel for Mr. Simon's felony case(s).

As you may see from the quoted email correspondence, Mr. Cluck is familiar with Mr. Simon's situation, having been
his lawyer on misdemeanor charges since last year.

Thank you for your courtesies and attention.

Sincerely,

Tim Cowart
Attorney at Law

Reply Email:
jtcowartfg.tirricowartlaworTice.corn

Llano:
(32,5)247-5486
Marble Falls:
(830^798-1063
Facsimile: (866U18-4I60

URL:
http://www.timcowartlawofTice.com

CONFIDENTIALITY NOTICE:


The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only
the individual or organization named above. If you are not the intended recipient or an authorized representative of
the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its
attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please


                                                                                      Exhibit
Jennifer Bunting <424coordinator@dcourttexas.org>    August 3. 2015 2:23 PM
To: Tracy Ciuck
42908; Thomas Simon




Dear Mr. Cluck:

Judge Stubbs wants a hearing on your motion for
additional funds. I will not put on the docket what the
hearing is for since it is ex-parte but the hearing will
be set for August 7 at 9:00 a.m.


Best Regards,

Jennifer Bunting
424th Judicial District Court Coordinator
1701 E. Polk
Burnet, TX 78611
512-756-5438 telephone
512-756-8478 facsimile

Honorable Judge Evan Stubbs Presiding




                                                    Exhibit
                                 In The 33ra/424[n Judicial District Court of Bumet County                                8/4/2015 10:46 AM

                                                      State of Texas
                                                Honorable Evan Stubbs
                                                     Criminal Docket
                                          Friday, August 07, 2015 at 9:00 AM                                                      P ,-. Q (- | 5




12) 43758 -St^sNearirjgjOj.QO.M
SANDERS, TIMOTHY LARS                                                                                                           Davis, Richard
                                                                                                                                512-756-5117
  Warrant Status. Served
                      Degree: Offense:                                                                                        Court Appointed
                       (F2)MAN DEL CS PG 1A >=20«80AU                                                                             03/26/2015
 M JAU. 70

                               Bond Information:
                                     S35.000.00 2015-001 PATS BAIL BONDS
Continuances: 0            30 Days 01/20/2015-02/18/2015
Last Court Date: 07/28/2015
Related Cases:
Memo:                                                                                   Assessed Fees:              Projected Crt Costs:
Future Hearing Date: 08/27/2015; 09/14/2015
Age of Case: 182                                                                                   $0.00                             $284.00
Indictment Date. 02/03/2015
                                                                                                           TOTAL:                    $284.00
13) 42908 - Sftte.H^^.nfl at..9:MAM.
SIMON, THOMAS ALLEN                                                                                                            Cluck, Tracy D.
                                                                                                                                512-329-2615
 Warrant Status: Served
                     Degree: Offense:                                                                                         Court Appointed
                       (F2JSEXUAU ASSAULT                                                                                         06/06/2014
I N J A I L 511        (F2)SEXUAL ASSAULT
                       (F2) AGG ASSAULT W/DEADLY WEAPON


                           421 Days as of 08-04-2015 06/10/2014; 421 Days as of 08-04-2015 06/10/2014-; 511 Days as of 08-04-2015
Continuances: 0         03/12/2014 -
Last Court Date: 06/10/2015
Related Cases:
Memo:                                                                                     Assessed Fees:          Projected Crt Costs:
Future Hearing Date: 08/27/2015:09/14/2015
Age of Case: 427                                                                                   $50.00                          $474.00
Indictment Date: 06/03/2014
                                                                                                          TOTAL:                   $524.00
14) 44179 v§toftMHearing.aj..$.:.Q9.AM.
TAYLOR, CALVIN ERNEST JR.                                                                                                             Def.Pub
                                                                                                                                 512-234*3061
 Warrant Status:
                     Degree: Offense:                                                                                         Court Appointed
                       <F1)MAN DEL CS PG 1 >=4G<200G                                                                              02/13/2015
IH JAIL 174



Continuances: 3            174 Days as of 08-04-2015 02/12/2015 -
Last Court Date: 07/20/2015
Related Cases:
Memo:                                                                                   Assessed Fees:              Projected Crt Costs:
Future Hearing Date:
Age of Case: 63                                                                                    $0.00                             $284.00
Indictment Date: 06/02/2015
                                                                                                           TOTAL:                    $284.00
(Rev. 12/01)                                   CAUSE NO. 42908

THE STATE OF TEXAS                                      §                           IN THE DISTRICT COURT OF
v.                                                      §
                                                        §                              BURNET COUNTY. TEXAS
THOMAS ALLEN SIMON                                      §

                  ORDER ON DEFENDANT'S APPLICATION FOR APPOINTMENT OF ATTQRNEY

          After considering me appfcation for appointment of attorneyfiledby trie Defendant m the afjove entitled and
numbered cause, and the evidence in support thereof and in opposition (hereto, the Court finds that:
D Defendant O is X is nol D is not fully financiaBy able to employ an attorney and that Defendant's
application for appointment should be X GRANTED           D DENIED.
D Defendant has not property completed the Application and the same is hereby DENIED based on:
          D Inadequate attempts to hire attorney when apparently able.
          O Inadequate attempts to borrow money. • See highlighted areas.
          D Has assets capable of obtaining loan - must submit at least two loan rejections.
          O Financial information is not credible - hearing is required before the judge.
        D Other
ft is accordingly ORDERED that:
X         • Public Defender's Office OR X GARY PRUST. Substituting for Tracy Cluck be and is hereby appointed
          to represent said Defendant.
          D The Court finds that Defendant is able to pay $      toward attorney fees and is hereby ORDERED
        to deposit such sum in the Attorney's Trust Account on or before D                     days from this date,
        or
               Q at the rale of $          per (wk)(moKea. Paycheck) until such sum is accumulated. Attorney
               shall immediately inform the Court if any payment is missed. If presently in jail, defendant is
               ORDERED to begin such payments beginning one week after release on bond.
O       Defendant employ an attorney for this proceeding and appear, with counsel, before this Court in
                                    County, Texas, on           „                   , 19      . at
        o'clock       ,m. for the purpose ol
        O Review of Application for Ct. appt'd Attorney D Arraignment, D Appearance of counsel,
        D Status Hearing D Other


and. if failing to hire counsel. Defendant shall show cause for the failure to do so and may be hefd in contempt

        Signed on August 7,2015.




jjf                                                          Judge Presiding
»{if checked) Following receipt is required.

        I hereby acknowledge receipt of a copy of this ORDER, on ^ t f £^5—        y                 _, 20 ' j y


                                                 Defendant
CC: District Attorney
    Tracy Cluck
    Gary Prust (Prior Attorney-Client Relationship)
    Thomas Allen Simon




                                                                                       Exhibit         H
                            Cause No. 42908
    SEXUAL ASSAULT: SEXUAL ASSAULT: AGG ASSAULT W/DEADLY WEAPON

      THE STATE OF TEXAS                       §                       IN THE 424TH DISTRICT COURT

       v.                                      §                                 OF

      THOMAS ALLEN SIMON                       §                           BURNET COUNTY, TEXAS


                            NOTICE OF SETTING OR RESETTING

The above entitled and numbered cause is hereby set/reset for the following date (s) and purpose
(s). All times are 9:00 a.m. unless noted to the contrary.

28.01 Hearing        August 27,2015                   9:00 AM
Plea Deadline Docket August 27,2015                   9:00 AM
Jury Trial           September 14,2015                8:30 AM


GENERATED this 10th day of June, 2015


IN CRIMINAL CASES, FAILURE OF A DEFENDANT TO APPEAR FOR ANY SETTING
ABOVE MAY RESULT IN FORFEITURE OF BOND AND ISSUANCE OF CAPIAS FOR
ARREST. IN ALL CASES, FAILURE OF AN ATTORNEY TO APPEAR MAY RESULT IN
APPROPRIATE SANCTIONS BEING IMPOSED UPON THE ATTORNEY.

Original to the Court File. Copies of this notice have been sent to:

District Attorney
P.O. Box 725
Llano, TX 78643

TRACY D. CLUCK




                                                                         Exhibit
                                  Affidavit of Thomas Simon

        1.      My name is Thomas Simon. I am the Defendant in Cause No. 42908 in the 424th
Judicial District of Burnet County, Texas.

       2.      It is my desire that Tracy D. Cluck remain as my court appointed attorney in my
criminal case.

Affiant further sayeth not.




                                              Thomas Simon



         My name is Thomas Simon. My date of birth is 3 "^^ •* P* -^ , and my inmate
identification number is 26546. I am presently incarcerated in the Burnet County Jail in Burnet,
Burnet County, Texas 78611. I declare under penalty of perjury that the foregoing is true and
correct.

Executed on the /      day of August, 2015.




                                                                       Exhibit           (o
         UNSWORN DECLARATION OF TRACY D. CLUCK
       Under 28 U.S.C. §1746 and Texas Civil Practices & Remedies Code
§132.001 etseg., I declare under penalties of perjury that my name is Tracy
D. Cluck. I am over the age of 18 years and competent to make mis
declaration. My date of birth is October 4, 1961. My address is 12600 Hill
Country Blvd., Ste. R-275, Austin, Texas 78738. This document is not a
lien required to be filed with a county clerk, an instrument concerning real or
personal property required to be filed with a county clerk, or an oath of
office or an oath required to be taken before a specified official other than a
notary public. I have not been forced to sign this declaration. I declare
under penalties of perjury that all assertions provided in this document are
correct and true.

       The documents attached to the Petition for Writ of Mandamus and
Writ of Prohibition are true and correct copies of the original documents,
which are found among the papers of Cause No. 42908 in the Office of the
District Clerk of Burnet County, Texas or from my files. I did not request to
be removed as attorney for Thomas Allen Simon. I did not receive notice
that the trial court would hear the issue of substitution of counsel at the
hearing on Relator's ex parte motions held on August 7, 2015. Thomas
Allen Simon did not ask that I be removed as his attorney prior to, during or
after that hearing. The hearing was ex parte, in a closed courtroom, with
only me, Relator (who was and is in the custody of the Bumet County
Sheriff), Respondent, a Deputy Sheriff, a representative of the District
Clerk's Office, and the official court reporter for the 424th Judicial District
Court of Burnet County, Jennifer M. Fest (who made a record of the
hearing). At that hearing the trial court sua sponte removed me immediately
as Relator's attorney over my objection and did not rule on Relator's ex
parte motions.

      Signed on August 9, 2015.




                                       TRACY DTCITJCK




                                                        Exhibit       n
Tracy Cluck <tracy@tracyclucklawyer.com>                       August 7, 2015 4:20 PM
Tn   lonnifpr Huffman ^-d94rAnnrtAr(15)rlrriMrttpva9 n r g >
Simon Ex Parte Hearing 8/7/15, No. 42908, Burnet



Hi Ms. Hoffman,

I would like to obtain a transcript of the ex part hearing in State of
Texas v. Thomas Simon, Cause No. 42908, In The 424th District Court
of Burnet County, held this morning, 8/7/2015, in Burnet County,
Texas.

Please let me know the cost for this and I will pay you for the record of
this hearing. You can provide this to me in electronic form.

Also, please preserve all of your records of this hearing, including but
not limited to, tape recordings, electronic files, and stenograph tapes.

Thank you for your prompt attention to this matter.

With kindest regards,
Tracy D. Cluck

(512) 329-2615 Austin/Bee Cave
(512) 264-9997 San Antonio/Hill Country
www.tracyclucklawyer.com




                                                                 Exhibit
                  OURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-15-00500-CV



                                  In re Thomas Alien Simuu


                    ORIGINAL PROCEEDING FROM BURNET COUNTY


                           MEMORANDUM                 OPINION


              We lift the stay order issued on August 12, 2015, and deny relator's petition for

writ of mandamus and for writ of prohibition.




                                            Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Filed: August 25, 2015




                                                                        ibit
                                                                     Exhibit          1O
