                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00389-CR
                           ____________________


    IN RE BRETT W. LIGON, MONTGOMERY COUNTY DISTRICT
    ATTORNEY AND BARBARA ADAMICK, DISTRICT CLERK FOR
                MONTGOMERY COUNTY, TEXAS

_______________________________________________________            ______________

                               Original Proceeding
________________________________________________________             _____________

                          MEMORANDUM OPINION

      In a petition seeking a writ of mandamus, Brett W. Ligon, the Montgomery

County District Attorney, and Barbara Adamick, the Montgomery County District

Clerk, ask us to direct the trial court to vacate the trial court’s discovery order

requiring them to copy the six hundred most recent juror questionnaire forms and

forward the copies to the defendant’s expert witnesses, two sociologists. After

staying the trial court’s order pending our decision in this proceeding, we requested

a response from the defendant and real party in interest, Leon Davis. Upon review

of the petition, the mandamus record, and Davis’s response, we conclude the trial

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court abused its discretion by ordering production of the juror questionnaires at

issue. We conditionally grant Relators’ request for relief.

                                    Background

      In August 2013, following the trial court’s May 2013 appointment of two

sociologists at Davis’s request, Davis filed a motion seeking to discover the total

number of criminal cases filed in 2012 and 2013, the total number of defendants of

African-American descent who were tried in 2012 and 2013, the addresses of every

juror summoned for jury duty in 2013, the addresses of all E-jurors 1 in 2013, and

information about each prospective juror’s address and race, as indicated in the six

hundred jury information sheets completed by prospective jurors from “all the

courts from the most recent trials[.]” While the State agreed to provide some of the

items that Davis requested, the State did not agree to produce the jury

questionnaires.

      The State filed a motion stating that it objected to being required to disclose

the questionnaires or the information that was derived from them. According to the

State’s motion, such discovery is not authorized by the Code of Criminal

Procedure and the disclosure of confidential personal information about jurors is
      1
       See generally Weeks v. State, 396 S.W.3d 737, 742-45 (Tex. App.—
Beaumont 2013, pet. ref’d) (discussing Montgomery County’s internet and
telephone-based juror response system); see also Tex. Gov’t Code Ann. § 62.0111
(West 2013).
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prohibited by article 35.29 of the Code of Criminal Procedure and by section

62.0132 of the Texas Government Code. See Tex. Gov’t Code Ann. § 62.0132

(West 2013); Tex. Code Crim. Proc. Ann. art. 35.29 (West Supp. 2012).

Montgomery County filed written objections to producing information about

prospective jurors, relying on the same statutes that were discussed in the State’s

objections.

      Several days after Davis filed his motion, the trial court conducted a non-

evidentiary hearing on his discovery requests; approximately one week after the

hearing, the trial court rendered an order requiring the State to provide the

requested questionnaires to defense counsel, allowing the State to redact the

questionnaires to remove all information in them except the information about each

juror’s address and race. The order requires that Davis’s attorneys, after providing

the questionnaires to their experts, return them to the Clerk of the Court where they

were to be destroyed. The order also recites that “[g]ood cause exists to allow

disclosure” of the completed questionnaires.

                                    Discussion

      The dispute regarding the State’s production of the jury questionnaires arises

from a criminal case the State filed in February 2013 against Leon Davis, who was

indicted for evading arrest and organized retail theft. In May 2013, Davis filed a

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motion to change venue from Montgomery County to Harris County. See Tex.

Code Crim. Proc. Ann. art. 31.03 (West 2006). Under article 31.03, a change of

venue may be granted on a motion supported by the affidavits of the defendant and

at least two credible residents of the county, showing either that “there exists in the

county where the prosecution is commenced so great a prejudice against him that

he cannot obtain a fair and impartial trial[,]” or that “there is a dangerous

combination against him instigated by influential persons, by reason of which he

cannot expect a fair trial.” Id. § 31.03(a). In addition to the personal affidavit

submitted by Davis, six Montgomery County criminal defense attorneys—Robert

Bartlett, Jose Mata, E. Tay Bond, Jerald Crow, Jay M. Wright, and Rick Brass—

filed affidavits stating:

       In my opinion as an attorney trying criminal cases in Montgomery
       [C]ounty, it is not possible for LEON DAVIS to obtain a fair and
       impartial trial by and before a jury of his peers in Montgomery
       County, Texas because a proportionate number of people of African
       American decent [sic] are not included in jury panels in this county.

       This suit should be heard in Harris County, Texas where it is possible
       to obtain a fair and impartial trial as jury panels traditionally include a
       greater variety of ethnicity.

       At the hearing on Davis’s motion to produce the questionnaires, Davis’s

counsel disavowed that he was seeking discovery related to Davis’s case. See Tex.

Code Crim. Proc. Ann. art. 39.14 (West Supp. 2012) (allowing discovery of

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“tangible things not privileged, which constitute or contain evidence material to

any matter involved in the action and which are in the possession, custody or

control of the State or any of its agencies[]”). Davis’s counsel also explained that

he was not seeking any public information or making an open records request. See

Tex. Gov’t Code Ann. § 552.022(a)(17) (West 2012).

      Davis’s motion does not identify a statute or procedural rule authorizing a

trial court to order the State to disclose the jury questionnaires at issue. Also,

Davis’s counsel failed to demonstrate in the trial court that the questionnaires, or

information derived from them, was information subject to disclosure to Davis’s

attorney and Davis’s experts. Generally, information in jury questionnaires is

confidential and, as such, subject to only limited disclosure. Under section

62.0132(g) of the Texas Government Code, jury questionnaires may be disclosed

to:

      (1) a judge assigned to hear a cause of action in which the respondent
      to the questionnaire is a potential juror;

      (2) court personnel; and

      (3) a litigant and a litigant’s attorney in a cause of action in which the
      respondent to the questionnaire is a potential juror.

Id. § 62.0132(g).




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      A written jury summons contains a questionnaire that, after being

completed, includes information about a prospective juror’s: “(1) name, sex, race,

and age; (2) residence address and mailing address; (3) education level,

occupation, and place of employment; (4) marital status and the name, occupation,

and place of employment of the person’s spouse; and (5) citizenship status and

county of residence.” Id. § 62.0132(c). Although the questionnaires are subject to

disclosure in the circumstances described by section 62.0132(g), section 62.0132(f)

generally provides that the information contained in jury questionnaires is

confidential. Id. § 62.0132(f), (g). In Davis’s case, the trial court ordered that

certain information in the completed juror questionnaires be disclosed to Davis’s

attorney without any showing that his attorney was the attorney in the cause of

action in all of the cases that relate to the six hundred questionnaires at issue.

      The Code of Criminal Procedure also restricts the trial court’s power to

disclose information contained in jury questionnaires. Under the Code of Criminal

Procedure, information collected about persons who serve as jurors, including

addresses, are confidential and may not be disclosed by the court except upon a

showing of good cause on application by a party in that case or a member of the

news media. See Tex. Code Crim. Proc. Ann. art. 35.29. Under the trial court’s

order, the trial court has required the State to disclose juror information from cases

                                           6
other than Davis’s to Davis’s attorney. It does not appear that article 35.29 allows

the broad disclosure required by the trial court’s order.

      According to Davis, the trial court had the discretion to order the disclosure

of confidential juror information to protect Davis’s right to have his jury drawn

from a venire representative of the community. See Taylor v. Louisiana, 419 U.S.

522, 537 (1975). To establish a prima facie violation of the fair-cross-section

requirement, a defendant must show:

      (1) that the group alleged to be excluded is a “distinctive” group in the
      community; (2) that the representation of this group in venires from
      which juries are selected is not fair and reasonable in relation to the
      number of such persons in the community; and (3) that this
      underrepresentation is due to systematic exclusion of the group in the
      jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Weeks v. State, 396 S.W.3d

737, 742 (Tex. App.—Beaumont 2013, pet. ref’d). According to Davis, the juror

information in the questionnaires might provide evidentiary support for a potential

claim that certain jurors are systematically excluded from Montgomery County

venires. He argues that granting mandamus relief will effectively prevent Davis

“from proving the jury system of Montgomery County is broken.”

      However, Davis’s assertion is speculative, as he concedes that prospective

jurors are summoned in Montgomery County based on voter’s and driver’s

registration lists. See Tex. Gov’t Code Ann. § 62.001(a) (West 2013). He produced
                                          7
no evidence at the hearing that suggests that Montgomery County has a practice

that results in the exclusion of any particular or “distinctive” group of jurors by

race or by address. See Duren, 439 U.S. at 364. Moreover, his claim is prospective,

as the array from which his jury will be drawn has not yet been selected.

      Davis’s request for the juror questionnaires was not made in connection with

a challenge to the array that will be called for his case. See Tex. Code Crim. Proc.

Ann. art. 35.07 (West 2006). Davis’s challenge relates to his motion to change

venue, a motion that essentially asserts a prospective claim that the jurors

ultimately selected in his case would not reflect the composition of the community

at large. However, the fair-cross-section principle has never been extended to petit

juries. Lockhart v. McCree, 476 U.S. 162, 173-74 (1986). Davis’s counsel

explained that he needed the jury questionnaires to explore the possibility of using

a fair cross-section claim as support for transferring venue to a county with a larger

minority population. At the hearing, Davis’s counsel told the trial court,

      even with the smaller minority population [of Montgomery County],
      there’s something wrong with our jury system, the way we’re
      summoning. And that’s why we need the addresses of the people
      summoned because [the sociologists] suspect that when it comes from
      the driver’s license and the voter registration, something is wrong.
      We’re missing something. They suspect that. That’s one area to test in
      the research. And the other is . . . the E-jury . . . . [B]ecause it relies on
      computer and Internet, it may very well be racially biased in
      excluding part of the population.

                                            8
      The trial court granted the motion for access to the confidential records to

aid the investigation for a motion to transfer venue. While the grounds for seeking

the information in the jury questionnaires was claimed to be relevant to the motion

to transfer, Davis’s counsel admitted that his request was a preview for a possible

motion to quash the array “if, in fact, our system is such that it is racially biased[.]”

Davis’s counsel went on to state during the hearing that at present, “I don’t know

what to draft until I have the facts that the research produces.” Counsel even

suggested that he was on a fishing expedition, stating that “we don’t know what the

answer is. The answer could be that there’s not a constitutional issue here.”

      By seeking a change of venue before the array in his case was summoned,

Davis seeks to address a hypothetical claim that the array from which the jury will

be selected will have a disproportionate minority representation. He seeks to

address a hypothetical problem, not by changing the minority’s representation

through a challenge to his array, but by changing the venue of his case, transferring

it in another community that he subjectively believes will contain more of “his

peers.” However, a defendant is not entitled to a jury of a particular racial

composition. Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007); see also

United States v. Reyes, 252 F. App’x 659, 662 (5th Cir. 2007) (rejecting argument




                                           9
that a transfer to a venue of larger minority representation addresses equal

protection and fair cross-section principles).

                                       Conclusion

      The Legislature has protected the privacy rights of persons who answer jury

summonses. See Tex. Gov’t Code Ann. § 62.0132; Tex. Code Crim. Proc. Ann. art.

35.29. Davis has failed to demonstrate that the trial court was authorized to order

that information from questionnaires filled out by prospective jurors in other cases

be provided to his counsel. Additionally, Davis produced no evidence at the

hearing demonstrating that good cause existed to disclose the questionnaires at

issue to justify the trial court’s decision to disregard the confidentiality requirement

in section 62.0132 of the Government Code. We conditionally grant Relators’

petition for writ of mandamus and direct the trial court to vacate its order dated

August 16, 2013. Because we are confident the trial court will vacate its order, the

writ shall issue only if the trial court fails to act within a reasonable time.

      PETITION CONDITIONALLY GRANTED.

                                                            PER CURIAM


Submitted on September 20, 2013
Opinion Delivered October 16, 2013
Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.
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