                                                                                                      ACCEPTED
                                                                                                  01-18-00419-CR
                                          01-18-00419-CR
                              Cause No. ____________                                    FIRST COURT OF APPEALS
                                                                                                HOUSTON, TEXAS
            From the 405th District Court of Galveston County, Texas                           5/24/2018 10:53 PM
                                                                                             CHRISTOPHER PRINE
                                                                                                           CLERK
                                                         In the ___ Court of Appeals
In re Kristie L. Walsdorf, Relator
                                                                        Houston, Texas
                          Petition for Writ of Mandamus
                                                                    FILED IN
                                        And                   1st COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                          Brief in Support of the Petition 5/24/2018 10:53:13 PM
                                                                       CHRISTOPHER A. PRINE
                                                                              Clerk


       Identity of Parties and Counsel

            Relator is Kristie L. Walsdorf, counsel for Susan Nicole Jacob, who is

            one of the two real parties in interests. Relator is represented by Mark

            W. Bennett of Bennett & Bennett, 917 Franklin Street, Fourth Floor,

            Houston, Texas 77002.

                 The other real party in interest is the State of Texas, represented

            by Galveston County District Attorney Jack Roady, 600 59th Street,
            Suite 1001, Galveston, Texas 77551.

                 Respondent is the Honorable Michelle Slaughter, Judge of the

            405th District Court in Galveston County, Texas.
       Table of Contents
            Identity of Parties and Counsel................................. 1
            Table of Contents ................................................... 1
             Index of Authorities ..............................................3
            Statement of the Case ..............................................3
            Statement of Jurisdiction........................................ 4
            Issue Presented ...................................................... 4
            Statement of Facts ................................................. 4
            Argument .............................................................. 4
 Relief Sought ....................................................... 4
Brief in Support of the Petition ................................ 4
 Standard ............................................................. 5
 The Record .......................................................... 5
 Clear Right to Relief............................................. 5
  Prior restraints are disfavored. ........................... 6
  The Davenport standard is the correct
  threshold standard.............................................. 7
  Public policy disfavors this prior restraint..............8
  The State’s rationale does not hold up. ...................8
 No Adequate Remedy ............................................ 10
Conclusion .......................................................... 10
Prayer ................................................................. 11
Certification ........................................................ 11
Certificate of Service ............................................ 12
Appendices ........................................................... 13
 Appendix A: Certified or Sworn Copies .................... 13
  Appendix A1: Certified Copy of Protective Order .... 13
  Appendix A2: Certified Copy of State’s Motion
  for Protective Order ......................................... 16
  Appendix A3: Reporter’s Record............................ 19
 Appendix B: [Intentionally Left Blank] ................... 36
 Appendix C: Text of Law (Other than Case Law)
 on Which Argument is Based.................................. 37
  Section 22.221(b) of the Texas Government
  Code, Writ Power .............................................. 37




                                    2
        Selected Portions of Texas Disciplinary Rule of
        Professional Conduct 3.09, Special Duties of a
        Prosecutor, and Comments Thereto ...................... 37


  Index of Authorities

  CASES
    Alexander v. United States, 509 U.S. 544 (1993) ...............................6
    Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (orig. proceeding) ... 6, 7
    In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.]
       2007, no pet.) (orig. proceeding) ................................................... 7
    In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.)
       (orig. proceeding) .........................................................................8
    In re King, 293 S.W.3d. 376 (Tex. App.—Amarillo 2009, no pet.)
       (orig. proceeding) ......................................................................... 7
    Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ..........................6
    San Antonio Express–News v. Roman, 861 S.W.2d 265 (Tex.
      App.—San Antonio 1993, orig. proceeding) ............................. 8, 10

  STATUTES
    Tex. Govt. Code § 22.221(b)(1) ...................................................... 4

  OTHER AUTHORITIES
    Tex. R. Discip. Proc. 3.09(d) .............................................................9
Statement of the Case




                                                   3
     The underlying proceeding is a criminal prosecution.

          Respondent is the Honorable Michelle Slaughter, Judge of the
     405th District Court in Galveston County, Texas.

          Relator seeks relief from Respondent’s having signed a Protective

     Order comprising a prior restraint on Relator’s speech under article 1,
     section 8 of the Texas Constitution.
Statement of Jurisdiction

     Galveston County is a county in this Court’s district. This Court has

     jurisdiction under section 22.221(b)(1) of the Texas Government

     Code. Tex. Govt. Code § 22.221(b)(1).
Issue Presented

     Is the Protective Order a void prior restraint?
Statement of Facts

     On June 26, 2017 Real Party in Interest the State of Texas filed a
     Motion for Protective Order. On October 2, 2017 Respondent entered

     the Protective Order, restricting Relator’s speech.
Argument
  Relief Sought

     Relator files this Petition for Writ of Mandamus to ask this Court to

     grant the writ and order Respondent to vacate its Protective Order.
Brief in Support of the Petition




                                          4
Standard

  To demonstrate the right to mandamus relief, Relator must establish

  that Respondent clearly abused her discretion, and that Relator has no

  adequate remedy by appeal.
The Record

  The record comprises:
     • The State’s Motion for Protective Order;
     • The Protective Order; and
     • The Reporter’s Record from October 2, 2017.

  The Protective Order provides:
       [1] The Defendant and counsel shall be admonished that the
       purpose of discovery is case preparation and that sensitive
       information provided within the scope of the Protective Order is to
       be used only for that purpose;
       [2] Information disclosed under the Protective Order shall be used
       only by the defendant, the attorney representing the defendant, or
       an investigator, expert, consulting legal counsel, or other agent of
       the attorney representing the defendant solely for purposes of this
       action;
       [3] The Defendant and counsel for the defense shall not release or
       communicate the information to any other outside parties.
Clear Right to Relief

  This Protective Order is a prior restraint on Relator’s speech.




                                      5
          A prior restraint on speech is an order “forbidding certain

  communications when issued in advance of the time that such
  communications are to occur.” Alexander v. United States, 509 U.S.

  544, 550 (1993). “[P]rior restraints on speech and publication are the

  most serious and the least tolerable infringement on First Amendment
  rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

          Relator has a clear right to relief because the prior restraint

  violates article I, section 8 of the Texas Constitution, which “provides

  greater rights of free expression than its federal equivalent.” Davenport

  v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992) (orig. proceeding).
Prior restraints are disfavored.
  Prior restraints on speech are presumptively unconstitutional. See id.

  In the context of a prior restraint affecting attorneys and parties to a

  case:
          … federal courts consider three factors. First, the court must
          consider whether the requested order is narrowly tailored. Next, the
          court determines whether a gag order is the least restrictive means,
          or if less burdensome alternatives would achieve the same
          governmental objective. Finally, the court applies the “threshold
          standard for imposing a prior restraint.




                                        6
  In re Benton, 238 S.W.3d 587, 593 (Tex. App.—Houston [14th Dist.]

  2007, no pet.) (orig. proceeding) (internal quotation marks and
  citations omitted).
The Davenport standard is the correct threshold
standard.

  In Davenport, the Texas Supreme Court concluded that a gag order in

  a civil proceeding will withstand state constitutional scrutiny only if

  there are specific findings supported by evidence that:
       (1) an imminent and irreparable harm to the judicial process will
       deprive litigants of a just resolution of their dispute, and
       (2) the judicial action represents the least restrictive means to
       prevent that harm.
  Davenport v. Garcia, 834 S.W.2d at 10.

       The trial court made no such findings, and there is no evidence

  that the Protective Order is necessary to prevent an imminent and

  irreparable harm to the judicial process that will deprive litigants of a

  just resolution of their dispute.

       While Davenport involved a civil case, the Amarillo, Waco and

  San Antonio Courts of Appeals have applied the Davenport test to

  prior restraints in criminal proceedings. In re King, 293 S.W.3d. 376

  (Tex. App.—Amarillo 2009, no pet.) (orig. proceeding); In re Graves,

  217 S.W.3d 744, 753 (Tex. App.—Waco 2007, no pet.) (orig.



                                      7
  proceeding); San Antonio Express–News v. Roman, 861 S.W.2d 265, 268

  (Tex. App.—San Antonio 1993, orig. proceeding).1
Public policy disfavors this prior restraint.

  The State in its Motion for Protective Order describes the records
  subject to the Protective Order:
        The State is producing records regarding a law enforcement officer
        and/or state employee, in accordance with the State’s duty to
        disclose Brady / Giglio / Morton evidence.
  Motion for Protective Order. The due process clause of the United

  States Constitution requires a prosecutor to seek out and disclose to

  the defense Brady and Giglio evidence. This is an absolute rule, and

  disclosure may not be conditioned on a prior restraint barring the

  defense from discussing such evidence.
The State’s rationale does not hold up.
  The State in its Motion for Protective Order relied solely on Rule 3.09(d)

  of the Texas Disciplinary Rules of Professional Conduct:


  1
   The Fourteenth Court of Appeals in In re Benton discussed the various threshold
  standards, and declined to decide which applies to a prior restraint on counsel in a
  criminal cases because the prior restraint in that case failed the least stringent test. In
  re Benton, 238 S.W.3d 587, 597(Tex. App.—Houston [14th Dist.] 2007, no pet.).
  The Davenport test is the only one approved under the more-stringent Texas
  Constitution. Here, as in Benton, though, whichever standard applies, the prior
  restraint in this case fails to satisfy it.




                                              8
     Texas Rules of Professional Conduct § 3.09(d) requires that a
     prosecutor “make timely disclosure to the defense of all evidence or
     information …” exculpatory or mitigating “… except when the
     prosecutor is relieved of this responsibility by a protective order of
     the tribunal." Comment 5 of Rule 3 explains the exception. “The
     exception in paragraph (d) recognizes that a prosecutor may seek an
     appropriate protective order from the tribunal if disclosure of
     information to the defense could result in substantial harm to an
     individual or to the public interest.” Texas Rules of Professional
     Conduct §3.09, Comment 5. The State requests that the Court
     enter a Protective Order in this case with the following provisions:
Motion for Protective Order.

     Rule 3.09(d) is an ethical rule, not a rule of criminal procedure. It

does not govern the trial court, but creates disciplinary liability for a

prosecutor’s failure to comply with his due-process obligations to

disclose Brady and Giglio evidence. The exception in Rule 3.09(d)

relieves a prosecutor of disciplinary liability under Rule 3.09(d) for

failing to disclose Brady and Giglio evidence in limited circumstances.

Tex. R. Discip. Proc. 3.09(d).

     The “protective order” referenced in Rule 3.09(d) is not an order

gagging another lawyer (such as Relator) but a protective order




                                    9
    relieving the prosecutor of his ethical duty to disclose Brady and Giglio

    information.2
          Under the disciplinary rule the prosecutor is subject to discipline

    if he does not either a) disclose Brady; or b) get a protective order

    relieving him of that responsibility. “Disclose Brady and Giglio
    material subject to a prior restraint on the defense” is not an option

    created by Rule 3.09(d).
  No Adequate Remedy

    Mandamus is the appropriate method by which to challenge a gag

    order. San Antonio Express–News v. Roman, 861 S.W.2d at 266. Because

    no appealable order has been entered, Relator has no adequate remedy

    by appeal. See id. at 267.
Conclusion

    Because the Protective Order is a prior restraint, it is presumptively

    unconstitutional. Because there are no specific findings supported by

    evidence either that an imminent and irreparable harm to the judicial

    process will deprive litigants of a just resolution of their dispute, or



    2
      Even if a prosecutor got a protective order relieving him of his Rule 3.09(d)
    responsibility, he would still have a Constitutional duty under Brady and its progeny,
    with which Rule 3.09(d) has nothing to do.




                                             10
     that the judicial action represents the least restrictive means to prevent

     that harm, the Protective Order does not meet the standard of
     Davenport v. Garcia, it is void. Relator clearly abused his discretion in

     entering this protective order.
Prayer

     For these reasons, Relator asks that the Court order the clerk to file

     this Petition for Writ of Mandamus and set it for hearing; order the clerk

     of the court to give notice to all parties of the filing of the petition and

     the hearing date; and, following the hearing, issue a Writ of Mandamus

     directed to Respondent to vacate the Protective Order, and grant any

     other relief to which Relator may be entitled.
Certification

     I have reviewed the petition and concluded that every factual

     statement in the petition is supported by competent evidence included

     in the appendix or record.

                                            ___________________________
                                            Mark W. Bennett




                                         11
Certificate of Service

     A copy of this petition will be delivered to attorney for the State by the

     efiling system.

                                          ___________________________
                                          Mark W. Bennett




                                        12
Appendices
  Appendix A: Certified or Sworn Copies
  Appendix A1: Certified Copy of Protective Order




                               13
Appendix A2: Certified Copy of State’s Motion for
Protective Order




                            16
Appendix A3: Reporter’s Record




                           19
                                                                1

                                       Motion October 2, 2017
 1                         REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUME
 2         TRIAL COURT CAUSE NO. 14-CR-1986 and 15-CR-0860

 3   THE STATE OF TEXAS           ) IN THE DISTRICT COURT
                                  )
 4   vs.                          ) GALVESTON COUNTY, TEXAS
                                  )
 5   SUSAN NICOLE JACOB           ) 405th JUDICIAL DISTRICT

 6

 7         DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR
           PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF
 8              WITHHELD INFORMATION AND/OR SANCTIONS

 9

10

11           On the 2nd day of October, 2017, the following

12   proceedings came on to be held in the above-entitled

13   and numbered cause before the Honorable Michelle

14   Slaughter, Judge Presiding, held in Galveston County,

15   Texas.

16           Proceedings reported by computerized stenotype

17   machine.

18

19

20

21

22

23

24

25

                         KAREN S. BERNHARDT, C.S.R.
                               (713) 962-2530
                                                             2

                                    Motion October 2, 2017
 1                        APPEARANCES

 2   ADAM POOLE
     SBOT NO. 24042968
 3   Chief Assistant Criminal District Attorney
     Galveston County District Attorney's Office
 4   600 59th Street, Suite 1001
     Galveston, Texas 77551
 5   Telephone: 409.766.2344
     Fax: 409.766.2290
 6   E-mail: adam.poole@co.galveston.tx.us
     Attorney for Prosecution, The State of Texas
 7
     KRISTIE WALSDORF
 8   SBOT NO. 24076145
     Walsdorf Law Firm
 9   305 21st Street, Suite #247
     Galveston, Texas 77550
10   Telephone: 409.766.7330
     Fax: 409.750.7131
11   E-mail: kwalsdorf@walsdorflaw.com
     Attorney for Defendant, Susan Nicole Jacob
12

13

14

15

16

17

18

19

20

21

22

23

24

25

                      KAREN S. BERNHARDT, C.S.R.
                            (713) 962-2530
                                                                  3

                                     Motion October 2, 2017
 1

 2                     CHRONOLOGICAL INDEX

 3      DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR
        PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF
 4           WITHHELD INFORMATION AND/OR SANCTIONS

 5   October 2, 2017

 6                                                  Page      Vol.

 7   Adjournment ....................................16       1

 8   Reporter's Certificate .........................17       1

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

                       KAREN S. BERNHARDT, C.S.R.
                             (713) 962-2530
                                                                4

                                     Motion October 2, 2017
 1                   THE COURT:   Let's go on the record in

 2   14-CR-1986, 15-CR-0860, State of Texas vs. Susan

 3   Nicole Jacob.

 4                   Let's have appearance of counsel for

 5   the record?

 6                   MR. POOLE:   Adam Poole for the State.

 7                   MS. WALSDORF:   Kristie Walsdorf for

 8   the defense.

 9                   THE COURT:   Is this Susan Jacob?

10                   MS. WALSDORF:   Yes, ma'am.

11                   THE COURT:   Okay.   All right.   We are

12   here on the, in each case, on the State's Motion to

13   Adjudicate Guilt and Revoke Community Supervision.

14                   Ms. Jacob, could you please stand up

15   for a moment?

16                   MS. WALSDORF:   Your Honor, if I may

17   clarify?

18                   THE COURT:   Sure.

19                   MS. WALSDORF:   We're only here on the

20   protective order issue.

21                   THE COURT:   Only on protective order?

22   I thought this was an MRP.

23                   MS. WALSDORF:   No, no.

24                   MR. POOLE:   They were Motion to Revoke

25   but --
                       KAREN S. BERNHARDT, C.S.R.
                             (713) 962-2530
                                                                 5

                                      Motion October 2, 2017
 1                  MS. WALSDORF:    We're just here today

 2   for the protective order.

 3                  THE COURT:    So we're here then on

 4   these cases regarding some Brady issues?    So do you

 5   want to proceed, Ms. Walsdorf?

 6                  MS. WALSDORF:    Yes, Your Honor.   I

 7   went ahead -- we were here while Judge Garner was on

 8   the bench for you.   At that time the State said they

 9   had some Brady information.    I had filed for a

10   Brady -- or I filed for discovery -- I filed for

11   discovery in June, on June 12th.    And in court the

12   State orally said they had some Brady information

13   regarding an Officer Coolly.   They did not file for a

14   protective order.    I was simply told orally they had

15   a protective order, and they did give me a copy of

16   it.   Then they gave me a copy of the actual order.

17                  We had a little chitchat in the back

18   with Judge Garner.   Judge Garner said, Wait until

19   Judge Slaughter is here.    So my motion stands.   I

20   went ahead and laid out all the arguments.    My

21   biggest issues is this hasn't even been filed by the

22   State.   So really I'm kind of just going blind.     What

23   I know is in the other hearings that I've had in

24   these cases, I have called the First Assistant, Kevin

25   Petroff, to the stand who says, as a general policy,
                      KAREN S. BERNHARDT, C.S.R.
                            (713) 962-2530
                                                              6

                                     Motion October 2, 2017
 1   their office will not disclose Brady information

 2   until the case is set for final resolution, which in

 3   some cases can take months.   But his testimony is

 4   that they wanted a blanket protective order, although

 5   he understood that the Michael Morton says they shall

 6   disclose, there's indeed a rule for the prosecutors

 7   to follow the discovery rules, they shall disclose,

 8   that they wanted the Courts first to order defense

 9   attorneys to comply with that protective order, even

10   when the State was not presenting what they have to

11   present under the comments.   They are allowed to get

12   protective orders when they can show there is

13   substantial harm to an individual or to the public.

14                 In this case the State has not put

15   forth anything in the motion stating there is any

16   sort of a public harm or any harm to an individual,

17   let alone it being substantial harm.

18                 And I went ahead and put in the motion

19   the official transcript where Mr. Petroff testified

20   that it was not -- it was their policy to induce the

21   local police agency to give them Brady information in

22   hopes they would continue to do so.    If the State

23   were to step out and ask for these protective orders

24   every time something came up only with the police

25   officer's personnel file.
                     KAREN S. BERNHARDT, C.S.R.
                           (713) 962-2530
                                                                  7

                                      Motion October 2, 2017
 1                   I can only assume that is what this

 2   is.   Again, I haven't been given any information

 3   about what this Brady information is.    I'm assuming

 4   it must be a personnel file because, according to the

 5   first assistant, that's what they asked for.      To my

 6   knowledge they haven't asked for protective orders in

 7   any other cases regarding any other individuals.       And

 8   I know that the -- in addition to the fact I don't

 9   have any of this information, the State's kind of

10   taking on a dual role in that they're creating a

11   conflict of interest.

12                   The police departments themselves,

13   they have their own attorneys.    And in this case

14   nobody has excepted, nobody has objected.       We don't

15   know they even have an issue with this.    State has

16   taken it upon themselves to say, on one hand we're

17   going to prosecute police officers when they do

18   something wrong.   On the other hand we're going to

19   jump in and protect their personnel files.

20                   So without even having the police

21   agency's attorneys come in, the State's kind of

22   taking on a dual role, creating a conflict of

23   interest.   I think the threshold issue is; one, the

24   State hasn't filed anything in the motion.      They

25   haven't done what they're supposed to do and stated
                        KAREN S. BERNHARDT, C.S.R.
                              (713) 962-2530
                                                               8

                                     Motion October 2, 2017
 1   any sort of substantial harm, let alone any harm.

 2   Again, we're just kind of flying blind that the DA's

 3   Office policy is to bind defense attorneys with the

 4   carrot being -- I say this because it was on the

 5   report and I want to point that out in the transcript

 6   that I provided that was certified, that the DA's

 7   office wants the ability to penalize defense

 8   attorneys for putting any of this information out in

 9   the public, even though Michael Morton does not --

10   even Michael Morton says you have to disclose this,

11   there are no specific provisions in there stating

12   defense attorneys can't use this information for the

13   betterment of their client and their case.

14                 At one point Mr. Petroff testified

15   that was a fear that some of these personnel files

16   might be put on Facebook.   As you know, defense

17   attorneys are bound by our ethical duties.   We're not

18   allowed to put anything on Facebook.   Nobody has ever

19   accused me have putting something on Facebook.     That

20   is not what I would do with the information.   I would

21   use that as I'm allowed to do to work the case.

22                 At the very least, I've got the --

23   should have the ability to see what it is and discuss

24   it with my client.   I pretty much have been prevented

25   from working on her case because we haven't been
                     KAREN S. BERNHARDT, C.S.R.
                           (713) 962-2530
                                                               9

                                      Motion October 2, 2017
 1   provided this information.

 2                   Again, there are very specific means

 3   for the State to get these protective orders.    Most

 4   of the case protective orders have to do with

 5   children or child witnesses.   In this case they're

 6   specifically asking them for police officers.

 7                   Now, police officers are doing

 8   something that needs to be protected, well, then the

 9   State needs to show where I'm going to do something

10   to harm them substantially.    They simply haven't done

11   that.

12                   Michael Morton -- what Michael Morton

13   did in ethical rules, what they've done is they have

14   removed the gatekeeping process.    It is no longer up

15   to the DAs to say what they shall give to the defense

16   attorneys.   It's no longer, with all due respect,

17   Your Honor, there is no longer gatekeeping function

18   for the judiciary that's been taken out.

19                   The rule is you just have to hand this

20   information over.   And the few times I've actually

21   had to litigate these, judges have agreed with me so

22   far the cases where I've been given the information,

23   I will state on the record, I've never put any of

24   this information on the Facebook.    I have not shared

25   it with the public.   I have not brought it to the
                      KAREN S. BERNHARDT, C.S.R.
                            (713) 962-2530
                                                               10

                                     Motion October 2, 2017
 1   media.   I have done no such thing with it.    And I

 2   don't think I've even been accused of doing that, but

 3   at this point they haven't even said what harm, let

 4   alone anything substantial, would come from them.

 5   Just provide me the information I've asked for and

 6   they're obligated to give me.

 7                   THE COURT:   Response?

 8                   MR. POOLE:   Judge, I will agree on one

 9   thing, and that is I think initially this came to the

10   Court a little differently than most because when it

11   was first presented it was Judge Garner on the bench.

12   He basically said, I don't want to sign this

13   document.   I just want to let Judge Slaughter hear it

14   later.   Laimplet that's why the motion hasn't been

15   filed.

16                   Typical procedure is come -- we come

17   up with the records and the motion for protective

18   order.   It all gets done, then and there.     We have

19   set for a hearing.   I know you're well aware what the

20   protective order motion states, and they do state the

21   purpose behind them is to prevent substantial harm,

22   if these documents, which are confidential, marked

23   privileged and definitely sensitive material, if they

24   were released to the public in anyway.

25                   So I very strongly disagree with what
                       KAREN S. BERNHARDT, C.S.R.
                             (713) 962-2530
                                                               11

                                      Motion October 2, 2017
 1   Ms. Walsdorf has said repeatedly here and repeatedly

 2   in her motion where she says that we've indicated to

 3   her we have Brady.    Brady and this material was

 4   Brady.   She hasn't seen it so she has no idea if it's

 5   Brady.   I couldn't disagree more that it's Brady.

 6   You look at the officer in question Officer Cooley,

 7   he had no responsibility in one case.    He was present

 8   at the arrest of the other.   He had no interaction

 9   with the defendant whatsoever, nothing to do with the

10   drugs -- I can't think of how any of these records

11   could relate to being impeachable or anything like

12   that.

13                  And we're a step removed from that

14   because this is an MRP.    So the underlying case has

15   already been disposed of.   Also the records regarding

16   Officer Cooley, we're being overly inclusive with

17   what we're turning over.    Their allegations not only

18   have not been substantiated but actually disproven.

19   Yet we're still turning it over.    That's our policy.

20                  We're overly inclusive even if it's

21   not Brady, we still turn it over.    We simply request

22   a protective order.   The language of the protective

23   order comes directly out of 39.14 in terms of what it

24   prevents them from doing.   They can only uses it for

25   criminal purposes for that case.    It's just that
                      KAREN S. BERNHARDT, C.S.R.
                            (713) 962-2530
                                                                 12

                                       Motion October 2, 2017
 1   39.14 doesn't describe any result or remedy if they

 2   were violated.    That's what the protective order is

 3   for.   The Court could amend it and write it in a

 4   different penalty or no penalty at all.     It's

 5   entirely up to the Court.     We're going to give the

 6   records over regardless of whether a protective order

 7   is signed and regardless of what it says.       But we're

 8   going to keep continuing to ask for that protective

 9   order because if they were to subpoena these records

10   themselves, then you would have the attorneys for

11   these individual agencies eation coming in and they

12   would be requesting a protective order.     We're

13   getting to this same places either way.     This is

14   simply a biproduct of our process of being overly

15   inclusive, turning the records over regardless of

16   requesting a protective order.

17                    THE COURT:   Can you tell me what's in

18   those records that would substantially harm the

19   individual or be against public interest or a problem

20   in any way, shape or form?

21                    MR. POOLE:   Yes, Your Honor.   So in

22   regards to this particular officer, it's a little bit

23   complicated because one of the investigations sort of

24   shoehorned in a lot of ciliary documents such as the

25   officer's divorce decree.     I mean, it's pages and
                        KAREN S. BERNHARDT, C.S.R.
                              (713) 962-2530
                                                                 13

                                      Motion October 2, 2017
 1   pages of records that are not related to anything.

 2                   It's like various employee

 3   information, internal memos.    There is also a lot of

 4   proprietary information in here.     In addition to

 5   that, even under the additional section we always

 6   turn over anyway, there are, for example, complaints

 7   that were not substantiated about a dating

 8   relationship he had that turned out not be in any

 9   violation of any kind of policy.     It's just personal

10   information.   Like I said, we still want to turn it

11   over.    We intend to turn it over regardless.   We're

12   just asking there be a protective order in place.

13                   THE COURT:   Ms. Walsdorf?

14                   MS. WALSDORF:   Well, Your Honor, I

15   don't think it matters whether it's Brady -- I'm

16   sorry.    I don't think it matters whether it's Brady

17   information or not.   If it's discoverable material,

18   it does need to be turned over.      Again, when I said I

19   was flying blind, it was simply an oral conversation

20   we had in chambers with the Judge Garner back in

21   August.

22                   So I'm going off of memory because

23   there was nothing filed.     Okay?   In that respect I do

24   think we still get the information.     And it has been

25   litigated before.   This was an open records request.
                       KAREN S. BERNHARDT, C.S.R.
                             (713) 962-2530
                                                               14

                                      Motion October 2, 2017
 1   We went through the same problems with Judge Neves.

 2   In fact that's when the city did make an appearance

 3   and said themselves Michael Morton actually changed

 4   local rules in there was no more in camera review.

 5   It had to be disclosed.

 6                   So either route we still get this

 7   information, but it has been already addressed by

 8   Judge Neves when he said, Yeah.    I understand.

 9   Because I was able to say I've been asking for them

10   under open records at the same time, which is why we

11   had the prosecutor's office and city attorney's

12   office in here testifying about the same issue.

13                   In the end, Your Honor, even though

14   these might be sensitive documents, yeah, they're

15   personnel files.   They're sensitive, but that does

16   rise to what is needed in order to show substantial

17   harm or harm to the public interest.      Just because

18   they might be sensitive does not show I'm going to do

19   something with that information that is going to

20   create harm.   Just because I might know something as

21   an attorney doesn't mean that individual, that

22   officer, is going to be harmed by my basic knowledge

23   of that information.

24                   THE COURT:   All right.    Here's what

25   I'm going to do, just given particular facts as I
                        KAREN S. BERNHARDT, C.S.R.
                              (713) 962-2530
                                                              15

                                                    Motion
                                           October 2, 2017
 1   understand them on this case, I'm going to go ahead

 2   and grant the protective order.   But, Ms. Walsdorf,

 3   of course, you're going to receive this information.

 4   If you find something in this information that you

 5   believe is Brady or impeachment evidence or some sort

 6   of evidence that you believe that you actually need

 7   for your client's case, let me know.   And then we can

 8   have a hearing on that and if I -- I can decide to

 9   lift that protective order for that purpose.   So --

10   but, of course, protective order is limited and still

11   allows you to utilize the information, receive the

12   information.

13                  That's how we'll proceed in this case.

14   Okay?

15                  Thank you.

16                  Do you have an order?

17                  MR. POOLE:   Yes, Judge.

18

19

20

21

22

23

24

25

                      KAREN S. BERNHARDT, C.S.R.
                            (713) 962-2530
                                                              16

                                                     Motion
                                            October 2, 2017
 1   STATE OF TEXAS

 2   COUNTY OF Galveston

 3       I, Karen S. Bernhardt, Deputy Court Reporter in

 4   and for the 405th District Court of Galveston, State

 5   of Texas, do hereby certify that the above and

 6   foregoing contains a true and correct transcription

 7   of all portions of evidence and other proceedings

 8   requested in writing by counsel for the parties to be

 9   included in this volume of the Reporter's Record in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13       I further certify that this Reporter's Record of

14   the proceedings truly and correctly reflects the

15   exhibits, if any, admitted, tendered in an offer of

16   proof or offered into evidence.

17       I further certify that the total cost for the

18   preparation of this Reporter's Record is $56.00 and

19   will be paid by Galveston County voucher.

20       WITNESS MY OFFICIAL HAND this the 25th day of

21   October, 2017.

22   /s/Karen S. Bernhardt
     Karen S. Bernhardt, CSR 1601
23   Expiration Date: 12/31/18
     Deputy Court Reporter, 405th District Court
24   Galveston County, Texas
     3901 29th Street No.
25   Texas City, Texas 77590/ Telephone: 713.962.2530
                       KAREN S. BERNHARDT, C.S.R.
                             (713) 962-2530
Appendix B: [Intentionally Left Blank]




                             36
Appendix C: Text of Law (Other than Case Law) on Which
Argument is Based
Section 22.221(b) of the Texas Government Code, Writ
Power
  (b) Each court of appeals for a court of appeals district may issue all

  writs of mandamus, agreeable to the principles of law regulating those

  writs, against :

  (1) a judge of a district, statutory county, statutory probate county, or

  county court in the court of appeals district;

  ….
Selected Portions of Texas Disciplinary Rule of
Professional Conduct 3.09, Special Duties of a
Prosecutor, and Comments Thereto
  The prosecutor in a criminal case shall:

  …
  (d) make timely disclosure to the defense of all evidence or

  information known to the prosecutor that tends to negate the guilt of

  the accused or mitigates the offense, and, in connection with

  sentencing, disclose to the defense and to the tribunal all unprivileged

  mitigating information known to the prosecutor, except when the

  prosecutor is relieved of this responsibility by a protective order of the

  tribunal; ….




                                     37
Comment:

Source and Scope of Obligations
1. A prosecutor has the responsibility to see that justice is done, and

not simply to be an advocate. This responsibility carries with it a

number of specific obligations. [A] prosecutor is obliged to see that the
defendant is accorded procedural justice, that the defendant's guilt is

decided upon the basis of sufficient evidence, and that any sentence

imposed is based on all unprivileged information known to the

prosecutor. See paragraph (d). …. Applicable law may require other

measures by the prosecutor and knowing disregard of those obligations

or a systematic abuse of prosecutorial discretion could constitute a

violation of Rule 8.04.

….

5. The exception in paragraph (d) recognizes that a prosecutor may
seek an appropriate protective order from the tribunal if disclosure of

information to the defense could result in substantial harm to an

individual or to the public interest.




                                    38
