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

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


                             ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

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

                             ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

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

                             ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯


TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

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

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

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

following:

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

      of mandamus and prohibition regarding an order by Respondent that would

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

   Desirae Mata, cause 14-4487.

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

   conditionally granting Relator’s request for mandamus relief. Respondent

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

   opinion.

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

   have on numerous occasions presented Respondent with requests for

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

   Respondent continues to order the State to provide discovery that

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

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

   11th Court of Appeals.

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

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

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

   right to the relief requested.

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

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

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

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

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

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

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

       good cause, materiality, and possession by the State.



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

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



                                                        Respectfully submitted,




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


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

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

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

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




                                             Michael Munk
                                             ATTORNEY FOR STATE
