                                                                        WR-83,585-01
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 7/15/2015 4:20:00 PM
                                                           Accepted 7/16/2015 8:26:19 AM
                                                                           ABEL ACOSTA
                          No.     -   -___                                         CLERK

                            IN THE                   RECEIVED
                                              COURT OF CRIMINAL APPEALS
              COURT OF CRIMINAL APPEALS OF TEXAS     7/16/2015
                                                        ABEL ACOSTA, CLERK


                          IN RE JANA DUTY,
                              RELATOR

        IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY
         FOR THE STATE OF TEXAS, WILLIAMSON COUNTY


             RELATOR’S MOTION FOR LEAVE TO FILE
               PETITION FOR WRIT OF MANDAMUS


             TRIAL COURT CAUSE NUMBER 13-0826-K277
                  IN THE 368TH DISTRICT COURT
                 OF WILLIAMSON COUNTY, TEXAS
                      HON. RICK J. KENNON




J. Woodfin Jones                      Brent Webster
State Bar No. 10911700                State Bar No. 24053545
ALEXANDER DUBOSE                      Assistant District Attorney
JEFFERSON & TOWNSEND LLP              405 MLK Street, #1
515 Congress Avenue, Suite 2350       Georgetown, Texas 78626
Austin, Texas 78701                   Telephone: (512) 943-1234
Telephone: (512) 482-9300             Facsimile: (512) 943-1255
Facsimile: (512) 482-9303             bwebster@wilco.org
wjones@adjtlaw.com
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       On behalf of the State of Texas, and based upon the arguments contained in

the attached petition, Relator Jana Duty, District Attorney for Williamson County,

Texas, requests permission to file the attached Petition for Writ of Mandamus. The

allegations in the petition complain of action taken by the 368th Judicial District

Court of Williamson County, Texas, hereinafter “Respondent Court.” In support

of this motion, Relator would show the Court the following:

                                          I.

       Jana Duty, hereinafter “Relator,” is a Texas citizen and elected official

whose rights and interests will be directly affected by the issuance of the writ.

                                          II.

       Presently in this matter, the Respondent Court has denied the State’s request

to rescind an unconstitutional and void gag order signed on April 9, 2015.

Respondent Court signed and entered a gag order, which consisted solely of a one-

sentence blanket prohibition that constitutes a broad prior restraint on the speech of

the Relator and multiple others: “The parties, attorneys, and employees of the

attorneys in this case are prohibited from communicating with the press/media

regarding this case or publicly commenting on this case during the pendency of the

proceedings.” Respondent Court is without discretion to violate Relator’s free

speech rights and enter a gag order without first hearing evidence and making


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specific findings based on that evidence, pursuant to the Texas Supreme Court

holding in Davenport and this Court’s holdings in Ex parte Foster and Ex parte

McCormick. This gag order, drafted by Defense Counsel, lacks any of the specific

findings required by law, is not narrowly tailored, and does not use the least

restrictive means to achieve the goals of the order; nor was evidence heard before

the gag order was entered. These errors render the gag order unconstitutional and

void. This Court should allow the accompanying Petition for Writ of Mandamus

to be filed and grant the requested relief because the Respondent Court lacks

authority and/or is without discretion to bypass the process of hearing evidence and

making specific findings supported by that evidence, consistent with Davenport,

before entering a gag order.

                                        III.

       The Court should hear this case, because it involves an attempt by

Respondent Court to unconstitutionally silence another elected official, the elected

District Attorney of Williamson County. The obvious harm is exacerbated by the

fact that the Respondent Court’s actions are now within nine months of the primary

election for Relator’s re-election. This is a major case personally involving the

elected District Attorney and the administration of justice in Williamson County; it

is not a low-level dispute between an assistant district attorney and an associate




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judge.     This dispute is at the intersection of the first amendment, the sixth

amendment, and democratic elections.

         Moreover, this case deserves this Court’s attention because the Respondent

Court is exercising unconstitutional prior restraint over the parties, attorneys, and

attorney’s staff in the underlying case and, indirectly, over the press itself. Not

only does the gag order hamper the press’s ability to get accurate coverage of the

case, but the Respondent Court recently attempted to silence the press in this same

case by instructing a reporter to remove an article relating to this case that the

Respondent Court thought to be incorrect.         As the accompanying mandamus

petition demonstrates in the section titled, “The Court Should Grant Relief

Through a Writ of Mandamus,” the Public and the democratic process are harmed

by the gag order and the actions of the Respondent Court.

                                          III.

         Since the Respondent Court is refusing to set aside the order signed on April

9, 2015, after being notified that courts are without discretion to enter a gag order

without first hearing evidence and making findings based on that evidence,

pursuant to the ruling in Davenport, Relator requests this Honorable Court to grant

Relator leave to file this Petition for Writ of Mandamus.

         WHEREFORE, PREMISES CONSIDERED, the State prays the Court grant

the Relator leave to file its Petition for Writ of Mandamus.


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       /s/ J. Woodfin Jones_______________
       J. Woodfin Jones
       State Bar No. 10911700
       ALEXANDER DUBOSE
       JEFFERSON & TOWNSEND LLP
       515 Congress Avenue, Suite 2350
       Austin, Texas 78701
       Telephone: (512) 482-9300
       Facsimile: (512) 482-9303
       wjones@adjtlaw.com


       /s/ Brent Webster_________________
       Brent Webster
       State Bar No. 24053545
       Assistant District Attorney
       Williamson County, Texas
       405 MLK Street, #1
       Georgetown, Texas 78626
       Telephone: (512) 943-1234
       Facsimile: (512) 943-1255
       bwebster@wilco.org


       /s/ Eric Gutierrez_________________
       Eric Gutierrez
       State Bar No. 24089267
       Special Prosecutor
       Williamson County, Texas
       405 MLK Street, #1
       Georgetown, Texas 78626




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                           CERTIFICATE OF SERVICE

       A true copy of the above Motion for Leave to File Petition for Writ of

Mandamus has been served on the Respondent, Hon. Rick J. Kennon, 368th

District    Court,   405   M.L.K.    Street,    Georgetown,   Texas   78626   at

rkennon@wilco.org, and the Real Party in Interest’s attorneys of record, Kristen

Jernigan,     207    S.    Austin   Ave.,      Georgetown,    Texas   78626   at

kristen@txcrimapp.com, Ryan Deck, 107 N.           Lampasas, Round Rock, Texas

78664 at ryandecklaw@gmail.com, and R. Scott Magee, 107 N. Lampasas, Round

Rock, Texas 78664 at scott@mageefirm.net on this the 15th of July, 2015.



                                /s/ Brent Webster_________________
                                Brent Webster
                                State Bar No. 24053545
                                Assistant District Attorney
                                Williamson County, Texas
                                405 MLK Street, #1
                                Georgetown, Texas 78626
                                Telephone: (512) 943-1234
                                Facsimile: (512) 943-1255
                                bwebster@wilco.org




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