                                            NO. 12-14-00153-CV

                              IN THE COURT OF APPEALS

                     TWELFTH COURT OF APPEALS DISTRICT

                                               TYLER, TEXAS

STATE EX REL.                                                §

MICHAEL E. JIMERSON,                                         §            ORIGINAL PROCEEDING

RELATOR                                                      §

                                                       OPINION
        In this original mandamus proceeding, Relator, Michael Jimerson, in his capacity as the
County Attorney for Rusk County, challenges the trial court’s June 6, 2014 order denying his
motion to quash a subpoena issued by real parties in interest GlobalFab, L.L.C., and Timothy
Scott Thomas. The respondent is the Honorable Guy W. Griffin, visiting judge for the Fourth
Judicial District Court, Rusk County, Texas. Joey M. Delarosa, Galyean Equipment Co., Inc.,
Galyean, L.P., and Allen Galyean are additional real parties in interest. We conditionally grant
the County Attorney’s petition.


                                                BACKGROUND
        GlobalFab, L.L.C., Timothy Scott Thomas, and Joey M. Delarosa are defendants (the
defendants) in a suit filed by Galyean Equipment Company, Inc., Galyean, L.P., and Allen
Galyean (collectively Galyean).1           GlobalFab and Thomas (collectively GlobalFab) filed a
counterclaim against Galyean seeking damages for defamation and malicious prosecution arising
out of a criminal investigation initiated by Allen Galyean, the owner of Galyean Equipment
Company, Inc. and Galyean, L.P. The case was set for trial on June 9, 2014, and GlobalFab
subpoenaed the County Attorney to testify as a witness on its behalf.
        1
         We cannot determine from the record what causes of action Galyean asserted against the defendants.
However, it is clear from the record that the initial dispute between the parties related to the ownership of trade
secrets.
       The County Attorney filed a motion to quash the subpoena. In his motion, the County
Attorney argued that (1) the records and documents requested are privileged work product in
their entirety,2 (2) any and all knowledge the County Attorney has of this matter constitutes work
product developed in anticipation of litigation for trial, (3) the request would require the County
Attorney to engage in a misuse of office, and (4) mandating the County Attorney’s testimony
would impose an unwarranted burden on finite prosecutorial resources. After conducting a
hearing, the trial court denied the motion to quash. The County Attorney then filed this original
proceeding.


                                      PREREQUISITES TO MANDAMUS
       Mandamus issues only to correct a clear abuse of discretion or the violation of a duty
imposed by law where there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or
in applying the law to the facts, and a clear failure to analyze or apply the law correctly
constitutes an abuse of discretion. Walker, 827 S.W.2d at 840. Mandamus is proper when the
trial court erroneously orders the disclosure of privileged information because the trial court’s
error cannot be corrected on appeal. Id. at 843; see also In re Bexar Cnty. Criminal Dist.
Attorney’s Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig. proceeding); In re Park Cities Bank,
409 S.W.3d 859, 866 (Tex. App.—Tyler 2013, orig. proceeding). Therefore, in this proceeding,
we address only the first prerequisite—whether the trial court clearly abused its discretion or
violated a duty imposed by law.


                                     THE WORK PRODUCT PRIVILEGE
       In his mandamus petition, the County Attorney raises the issue of whether a prosecutor
“can be called to testify in a malicious prosecution case about the information presented to him
during conversations that took place as part of his criminal investigation.” He argues that all of
the testimony sought by GlobalFab is “core work product.” But in the event that his testimony is
not core work product, the County Attorney argues, GlobalFab has failed to show it has a

       2
           The subpoena did not include a request for the production of any documents.




                                                             2
“substantial need” for his testimony and cannot show that it is “unable, without undue hardship,
to obtain the substantial equivalent of the material by other means.”
       In determining whether the trial court abused its discretion in denying the County
Attorney’s motion to quash, we first consider the application of the Texas Rules of Civil
Procedure to the evidence and the arguments presented to the trial court relating to GlobalFab’s
causes of action against Galyean.
Applicable Law
       Texas Rule of Civil Procedure 192.5 defines “work product” as

                (1)       material prepared or mental impressions developed in anticipation of litigation
       or for trial by or for a party or a party’s representatives, including the party’s attorneys,
       consultants, sureties, indemnitors, insurers, employees, or agents; or

                (2)       a communication made in anticipation of litigation or for trial between a party
       and the party’s representatives or among a party’s representatives, including the party’s attorneys,
       consultants, sureties, indemnitors, insurers, employees, or agents.


TEX. R. CIV. P. 192.5(a). The work product privilege includes all communications made in
preparation for trial or in anticipation of litigation, including an attorney’s interviews with parties
and nonparty witnesses, and extends to an attorney’s mental impressions, opinion, conclusions,
legal theories, and the selection and ordering of documents. See id.; In re Bexar Cnty., 224
S.W.3d at 186; In re Park Cities Bank, 409 S.W.3d at 867.
       Work product falls under one of two categories—“core work product” or “other work
product.”    See TEX. R. CIV. P. 192.5(b)(1), (2).              Core work product is “sacrosanct,” “not
discoverable,” and “its protection [is] impermeable.” TEX. R. CIV. P. 192.5(b)(1); In re Bexar
Cnty., 224 S.W.3d at 187-88. It concerns an attorney’s mental processes and includes the work
product of an attorney or an attorney’s representative that contains the attorney’s “mental
impressions, opinions, conclusions, or legal theories.” TEX. R. CIV. P. 192.5(b)(1).
Discussion
       During the hearing on the motion to quash, GlobalFab stated that the County Attorney’s
testimony was sought to explain three matters: (1) a recusal letter from the County Attorney
seeking the appointment of a prosecutor pro tem, (2) a statement the County Attorney made
during an expunction hearing on a case in which Allen Galyean was the alleged victim, and (3)
communications the County Attorney had with Allen Galyean.




                                                            3
         All of the County Attorney’s work and discussions in connection with the criminal
investigation of GlobalFab constitute “work product.” See TEX. R. CIV. P. 192.5(a); In re Bexar
Cnty., 224 S.W.3d at 187. The County Attorney argues that testimony regarding any of the three
aforementioned matters is precluded because it would disclose “core” work product.
         i.       The Recusal Letter
         On September 16, 2011, a letter written on the County Attorney’s official letterhead was
sent to the Office of the Attorney General.3 The letter contains the County Attorney’s signature
and requests the appointment of a prosecutor pro tem for “all cases” arising out of “alleged
thefts” in which Allen Galyean or his business is the victim. The letter references criminal cases
against two individuals charged with theft who are not parties to the current case. In addition to
stating that Allen Galyean is the brother-in-law of the county’s sole district judge, and that the
district judge’s wife could have a financial interest in Allen Galyean’s company, the letter states
that Allen Galyean is “adamant that additional charges should be filed against additional parties.”
The letter explains that Allen Galyean “has expressed concerns that the cases have not met with
the priority that he believes they deserve[,] and he has made known that he could foresee the
possibility of supporting another candidate for the position” held by the current County Attorney.
         The County Attorney argues that this letter is “exclusively a series of mental impressions
about [his] criminal investigations and the reasoning behind [the] conclusion that a prosecutor
pro-tem was required.” He further argues that the purpose of the letter was to convey the
essential need for involvement from the Attorney General’s Office and that it was “nothing more
than a memorialization of [his] mental impressions, opinions, conclusions[, and thus] should be
considered core work product not subject to disclosure.” The County Attorney also argues that,
despite GlobalFab’s possession of the letter, there is no indication that the County Attorney
waived the work product privilege regarding his mental processes.
         During the hearing on his motion to quash, the County Attorney confirmed that the
recusal letter was public in this record. GlobalFab included the letter as an exhibit here in its
amended response to the County Attorney’s mandamus petition. The top margins of the letter
indicate that it was either faxed to or faxed by “RUSK CO D A OFFICE” on September 19,
2011, and was also faxed to or by “Atty J Paul Nelson” on October 9, 2011. Officer Craig

         3
            The County Attorney’s letter was sent more than one year after a search warrant was executed on
GlobalFab’s place of business that resulted in the seizure of several business assets, including blueprints, drawings,
and a full size prototype of GlobalFab’s design.


                                                              4
Sweeney, a CID Lieutenant for the City of Henderson Police Department, testified in a
deposition that he had seen the letter before, but could not remember how he had acquired it.
       Assuming without deciding that the letter contains “a series of mental impressions about
the County Attorney’s criminal investigations,” we conclude that the work product privilege
relating to the contents of the letter is waived because the letter was disclosed to individuals
other than those at the Attorney General’s office. See id. at 189 (stating that DA’s disclosure of
prosecution file without objection waived work product privilege as to the file’s contents). The
work product privilege regarding the County Attorney’s mental impressions, opinions,
conclusions, and legal theories reached in preparing the letter was not waived, and thus, this
information is not discoverable. See TEX. R. CIV. P. 192.5(b)(1); In re Bexar Cnty., 224 S.W.3d
at 189 (DA’s waiver of privilege to the documents contained in its file does not waive DA’s
testimonial work product privilege regarding prosecutor’s mental processes). However, limited
testimony from the County Attorney to explain what “additional charges” and who the
“additional parties” were may be subject to disclosure. See TEX. R. CIV. P. 192.5(b)(2).
       ii.     The Expunction Hearing
       On January 22, 2013, the County Attorney participated in an expunction hearing
involving one of the individuals named in the recusal letter. During the hearing, the County
Attorney announced that a prosecutor pro tem had written a letter stating that the subject
individual was entitled to an expunction. The County Attorney then stated before the court that
“to the extent I’m permitted to, the State will agree to the expunction. And I’ll state that I never
agree to expunctions, but I’ll state for the record representations were made to me that were not
correct, and we will agree to the expunctions.”
       The County Attorney contends that these statements are core work product because they
constitute “nothing more than a summation of his final mental impressions of the case.” We
disagree. The County Attorney’s assertion that “representations were made to me that were not
correct” does not constitute a mental impression, opinion, conclusion, or legal theory. See TEX.
R. CIV. P. 192.5(b)(1). Thus, testimony regarding those representations may be subject to
disclosure. See TEX. R. CIV. P. 192.5(b)(2).
       iii.    Communications with Allen Galyean
       Lastly, the County Attorney contends that his testimony relating to communications with
Allen Galyean are not subject to disclosure because the information he gained was made in



                                                     5
preparation for trial and is “core work product.” But the County Attorney’s categorization of his
communications with Allen Galyean as “core work product” is misplaced. Questions relating to
statements Allen Galyean made to the County Attorney will not reveal the County Attorney’s
mental impressions, opinions, conclusions, or legal theories. See TEX. R. CIV. P. 192.5(b)(1).
These communications may be subject to disclosure. See TEX. R. CIV. P. 192.5(b)(2).


                          SUBSTANTIAL NEED AND UNDUE HARDSHIP
        The County Attorney’s testimony relating to the contents of the recusal letter, the
incorrect representations alleged during the expunction hearing, and communications between
the County Attorney and Allen Galyean are not core work product. But before the County
Attorney is required to testify regarding these matters, GlobalFab must show it has a substantial
need for the County Attorney’s testimony, and is unable, without undue hardship, to obtain the
substantial equivalent of the testimony by other means. See TEX. R. CIV. P. 192.5(b)(2); In re
Bexar Cnty., 224 S.W.3d at 188. This is a heavy burden. See In re Bexar Cnty., 224 S.W.3d at
188.
GlobalFab’s Causes of Action
        In its amended response here, GlobalFab contends that the County Attorney’s testimony
is necessary to prove the elements of its claims for defamation and malicious prosecution against
Galyean. But during the hearing on the motion to quash, GlobalFab argued that the County
Attorney’s testimony was necessary to prove the elements for its malicious prosecution claim,
not defamation. Accordingly, we limit our analysis to whether there exists a substantial need and
undue hardship as to GlobalFab’s cause of action for malicious prosecution. See TEX. R. APP. P.
33.1.
        To prove a cause of action for malicious prosecution, the complaining party must
establish (1) the commencement of a criminal prosecution against the plaintiff; (2) causation
(initiation or procurement) of the action by the defendant, (3) termination of the prosecution in
the plaintiff’s favor, (4) the plaintiff’s innocence, (5) the absence of probable cause for the
proceedings, (6) malice in filing the charge, and (7) damage to the plaintiff.        Richey v.
Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); Hernandez v. Porter, 406 S.W.3d
789, 792 (Tex. App.—El Paso 2013, pet. denied). During the hearing on the motion to quash,




                                                   6
GlobalFab argued that the County Attorney’s testimony was necessary to prove “intent,”
“malice,” and “[lack of] probable cause.” We construe “intent” as meaning causation.
       The causation (initiation or procurement) element of a malicious prosecution claim may
be established by proof that (1) the defendant filed formal charges against the complaining party,
or the defendant’s actions were enough to cause the prosecution, and (2) but for his actions, the
prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288,
293 (Tex. 1994). Generally, a person does not procure a criminal prosecution when the decision
to prosecute is discretionary. See id. But the exception to this rule is that a person procures a
criminal prosecution when he provides information that he knows is false. See id.; see also
Richey, 952 S.W.2d at 519 (“[K]nowingly providing false information to a public official
satisfies the causation element.”). Moreover, evidence that a person has failed to fully and fairly
disclose all material information to the prosecutor is relevant not only to the causation element of
a malicious prosecution claim, but also to the element of malice. See Richey, 952 S.W.2d at 519.
       Malice has been defined as ill will or evil motive, or such gross indifference or reckless
disregard for the rights of others as to amount to a knowing, unreasonable, wanton, and willful
act. Hernandez v. Mendoza, 406 S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.); Luce v.
Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex. App.—Dallas 2000, no pet.). To establish
malice, it is not necessary to prove that the defendant acted with personal spite or ill will; it is
sufficient to show the defendant committed wrongful acts in reckless disregard of another’s
rights and with indifference as to whether the party would be injured. Id. This element of
malice may be inferred from a lack of probable cause and relates to the commencement of the
proceeding. Id.
       Probable cause is defined as “the existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor
[the complainant], that the person charged was guilty of the crime for which he was prosecuted.”
Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983). In malicious prosecution cases, there is a
presumption that the defendant acted reasonably and in good faith and had probable cause to
initiate the proceedings. Richey, 952 S.W.2d at 517. To rebut this presumption, the plaintiff
must produce evidence that the motives, grounds, beliefs, or other information upon which the
defendant acted did not constitute probable cause. See id. at 518.




                                                     7
        When a complainant reasonably believes a crime has occurred, the reasonableness of that
belief is not negated by the failure to fully disclose all relevant facts. See id. at 519. Rather, the
extent of the disclosure indicates whether the complainant may have acted with malice or may
have, by knowingly providing false information, caused the prosecution. See id.
Discussion
        GlobalFab argues that a central issue to its claim for malicious prosecution is “when
[Allen] Galyean made statements, to whom, what representations were made, and on what they
were based.” But the information GlobalFab seeks to elicit from the County Attorney relates to
Allen Galyean’s communications, not whether his belief that a crime had occurred was
reasonable. See id. Accordingly, we limit our discussion to whether GlobalFab satisfied its
burden under Rule 192.5(b)(2) as to the elements of causation and malice for its malicious
prosecution claim.4
        i.        “Additional Charges” and “Additional Parties”
        The record shows that on March 10, 2010, a search warrant was executed on GlobalFab’s
place of business as part of a criminal investigation “into the reported theft of trade secrets.”
This resulted in the seizure of various items, including a computer, one hand drawn trailer
diagram with part numbers, seven “diagrams/blueprints,” one diagram or drawing of a “tanker”
with measurements, and one “43001 Apollo 130 vacuum trailer” with a diamond tool box and
eight tires.
        On December 17, 2012, the presiding judge for the County Court at Law of Rusk County
signed an order releasing the property and returning it to the “person(s)/entity from whom it was
seized.”       Included in the presiding judge’s order was the statement that “the criminal
investigation into the reported theft of trade secrets is now concluded by the State of Texas
Attorney General’s office.” This order was styled, “IN RE: GLOBALFAB, L.L.C., TIMOTHY
SCOTT THOMAS, JOEY M. DELAROSA, AND MERRILL JENSEN” and filed in cause
number C-10-025 in the County Court at Law of Rusk County.
        This evidence, when viewed in light of the County Attorney’s recusal letter, supports the
inference that the defendants were among the “additional parties” Allen Galyean was adamant

        4
          In his brief, the County Attorney argues that GlobalFab has wholly failed to establish that a criminal
prosecution was ever pursued. However, the County Attorney did not present this argument to the trial court. It is
well established that arguments not presented to the trial court will not be considered in a petition for writ of
mandamus. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding); In re Peacock, 421
S.W.3d 913, 917 (Tex. App.—Tyler 2014, orig. proceeding).


                                                            8
about filing charges against. Had the defendants not been the “additional parties,” the Attorney
General’s office would have had no need to conduct the criminal investigation regarding the
reported theft of trade secrets. As a result, there is no substantial need for the County Attorney to
testify about the identity of the “additional parties” or “additional charges” referenced in the
recusal letter.
        GlobalFab argues that the County Attorney’s testimony is necessary to authenticate the
recusal letter in order to admit it at trial. We disagree. The record shows that a prosecutor pro
tem was appointed to prosecute and conduct a criminal investigation of the individuals named in
the recusal letter. Thus, the letter would not be hearsay if offered for its effect on the reader
rather than for the truth of the matter asserted. See In re Bexar Cnty., 224 S.W.3d at 189 (citing
TEX. R. EVID. 801(d)). Additionally, the letter is a public record; thus, it would be admissible
under the public records exception to the hearsay rule. See TEX. R. EVID. 803(8).
        ii. Communications with the County Attorney
        GlobalFab argues that the County Attorney’s testimony is necessary to explain his
statement during an expunction hearing that representations had been made to him which were
not correct. We agree that the record shows a connection between the defendants and the
individual who received the expunction in the case in which Allen Galyean was the alleged
victim. But this connection is too remote to establish substantial need. The record suggests that
Allen Galyean may have made misrepresentations to the County Attorney about the defendants
in the current case, or that the representations were eventually determined to be untrue without
any intentional misrepresentations being made by Allen Galyean—not that Allen Galyean
knowingly provided false information about the defendants to the County Attorney. Moreover,
the County Attorney’s testimony regarding the expunction could potentially be impermissible
under Chapter 55 of the Texas Code of Criminal Procedure, particularly if his testimony is used
to authenticate records or files relating to the arrest of that individual.5 See TEX. CODE CRIM.
PROC. ANN. art. 55.04, § 1 (West 2011).
        It is undisputed that the County Attorney had communications with Allen Galyean. But
the County Attorney argues that the defendants have “no idea what [the] statements would be” if
they were permitted to question him. Indeed, this seems to be the reason GlobalFab seeks the

        5
          Chapter 55 of the Texas Code of Criminal Procedure sets forth the requirements and procedures for
expunctions, and the effect of obtaining an order of expunction in felony and misdemeanor cases. See generally
TEX. CODE CRIM. PROC. ANN. arts. 55.01-.02 (West Supp. 2014), arts. 55.03-.06 (West 2011).


                                                          9
County Attorney’s testimony. Nevertheless, GlobalFab has not shown that it has a substantial
need for the County Attorney’s testimony to prove the elements of causation and malice.
       The affidavit for the search warrant for GlobalFab’s place of business is not in the record.
“No warrant shall issue for any purpose . . . unless sufficient facts are first presented to satisfy
the issuing magistrate that probable cause does in fact exist for its issuance.” TEX. CODE CRIM.
PROC. ANN. art. 18.01(b) (West Supp. 2014). The record reflects that it is city policy that no
search warrants will be issued “unless they are authorized by the Chief, Assistant Chief, Deputy
Chief[,] or CID Lieutenant.” CID Lieutenant Craig Sweeney executed the search warrant on
GlobalFab’s place of business, was deposed, and was subpoenaed for trial. GlobalFab has not
shown that Sweeney’s testimony or testimony from any other authorized individual could not
satisfy the causation or malice element of their malicious prosecution claim. Nor has GlobalFab
shown that Allen Galyean knowingly provided the allegedly false information to only the County
Attorney. Therefore, we cannot conclude that the County Attorney’s testimony is the only
source from which the information GlobalFab seeks can be obtained.
Conclusion
       After viewing the record as a whole, we conclude that GlobalFab has not satisfied its
burden of showing that it has a substantial need for the County Attorney’s testimony to prove its
claim for malicious prosecution. We agree with the trial court’s and GlobalFab’s assertions that
In re Bexar County is distinguishable because the County Attorney has refused to disclose the
prosecution file. See In re Bexar Cnty., 224 S.W.3d at 188-89. But this distinction does not
create a substantial need for the County Attorney’s testimony when other sources are available to
prove the elements of a claim. GlobalFab has not shown that other sources are unavailable.
Because we have concluded that GlobalFab has not shown substantial need, we do not address
the undue hardship prong of Rule 192.5(b)(2). See TEX. R. APP. P. 47.1.


                                           DISPOSITION
       Based on the foregoing analysis, we hold that the trial court abused its discretion in
denying the County Attorney’s motion to quash. Accordingly, we conditionally grant the
County Attorney’s petition for writ of mandamus and direct the trial court to vacate its June 6,
2014 order denying the motion. We trust that the trial court will promptly comply with this
opinion and order. The writ will issue only if the trial court fails to do so within ten days after



                                                    10
the date of the opinion and order. The trial court shall furnish this court, within the time for
compliance with this court’s opinion and order, a certified copy of its order evidencing
compliance.



                                                                     JAMES WORTHEN
                                                                       Chief Justice
Opinion delivered February 11, 2015.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J.




                                                        (PUBLISH)



                                                              11
                               COURT OF APPEALS
       TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         ORDER

                                    FEBRUARY 11, 2015


                                    NO. 12-14-00153-CV


                                 MICHAEL E. JIMERSON,
                                         Relator
                                           v.
                                 HON. GUY W. GRIFFIN,
                                       Respondent




                                  ORIGINAL PROCEEDING


                     ON THIS DAY came to be heard the petition for writ of mandamus filed
by MICHAEL E. JIMERSON, who is the relator in Cause No. 2010-017, pending on the
docket of the 4th District Court of Rusk County, Texas. Said petition for writ of mandamus
having been filed herein on June 13, 2014, and the same having been duly considered, because it
is the opinion of this Court that the petition is meritorious, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
conditionally granted.
                      And because it is further the opinion of this Court that the trial judge will
act promptly and issue an order vacating its vacate its June 6, 2014 order denying the motion to
quash, the writ will not issue unless the Honorable Guy W. Griffin, Judge of the 4th District
Court of Rusk County, Texas, fails to do so within ten (10) days from the date of this order.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Neeley, J., Bass, Retired J., Twelfth Court of Appeals,
                      sitting by assignment.




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