Texas Court of Criminal Appeals Mandamus by Paxton Special Prosecutors June 2017

NOS.
WR- _____________________
IN THE
COURT OF CRIMINAL APPEALS
IN RE THE STATE OF TEXAS Ex REL. BRIAN W. WICE, RELATOR
ON STATE'S PETITION FOR WRIT OF MANDAMUS

AGAINST THE FIFTH COURT OF APPEALS
IN CAUSE NOS. 416-81913-2015; 416-82148-2015; 416-82149-2015

OF COLLIN COUNTY, TEXAS
RELATOR'S PETITION FOR WRIT OF MANDAMUS
BRIAN W. WICE KENT SCHAFFER

Bar No. 21417800 Bar No.1 7724300
440 Louisiana Suite 900 NICOLE DEBORDE
Houston, Texas 77002-1635 Bar No. 00787344
(713) 524-9922 PHONE 712 Main Suite 2400
(713) 236-7768 FAX Houston, Texas 77002
LEAD COUNSEL (713) 228-8500 PHONE
wicelaw@att.net (713) 228-0034 FAX
COLLIN COUNTY CRIMINAL DISTRICT ATTORNEYS PRO TEM

THE STATE OF TEXAS
ORAL ARGUMENT REQUESTED

IDENTIFICATION OF THE PARTIES
Pursuant to TEX.R.APp.P. 38.1 (a), this list of all interested parties
is provided so the Court's members can determine if they are disqualified
to serve or should recuse themselves from participating in this matter:
Relator:
The State of Texas
Respondent:
Court of Appeals Fifth District of Texas at Dallas
Defendant-Real Party in Interest:

Warren Kenneth Paxton, Jr.
Counsel for Relator:

Collin County Criminal District Attorney Pro Tem Brian Wice
Collin County Criminal District Attorney Pro Tem Kent Schaffer
Collin County Criminal District Attorney Pro Tem Nicole DeBorde
Counsel for Defendant-Real Party in Interest:

Philip Hilder
Q. Tate Williams
Paul Creech
Trial Judge:
Honorable George Gallagher
Assigned Judge
th
416 Judicial District Court
Collin County, Texas
Com plainants=
Failure to Register as an Investment Advisor: The State of Texas
Securities Fraud: Byron Cook & Joel Hochberg
11
TABLE OF CONTENTS
PAGE
..
IDENTIFICATION OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . .. 11
INDEX OF AUTHORITIES ................................. IV
STATEMENT REGARDING ORAL ARGUMENT ................ 1
STATEMENT OF THE CASE ................................ 1
STATEMENT OF THE PROCEDURAL HISTORY ................ 2
STATEMENT OF JURISDICTION ............................ 2
GROUNDS FOR MANDAMUS RELIEF ........................ 2
1. The Court of Appeals had a clear legal duty to consider its

jurisdiction to entertain Paxton's petition for writ of
mandamus and its analysis of the merits demonstrates that it
had a clear legal duty to hold that it did not have jurisdiction.
2. Texas Code of Criminal Procedure art. 31.09(a) gives either

party the power to effectively remove the trial judge after
change of venue has been ordered. Because this statute has
not been interpreted by any appellate court and its viability
uncertain - especially when as here, the trial judge has been
specially appointed - the Court of Appeals had a clear legal
duty to hold that Paxton had no clear right to relief.
INTRODUCTION .......................................... 2
SUMMARY OF ENTITLEMENT TO RELIEF ................... 5
ARGUMENT AND AUTHORITIES ............................ 8
111
A. The Standard of Review ................................. 8
B. The Inadequate Remedy at Law Requirement ............... 8
C. The Ministerial Duty Requirement ........................ 9
D. The Court of Appeals Had a Clear Legal Duty

To Hold that It Lacked Jurisdiction to Entertain
Paxton's Petition for Writ of Mandamus ................... 11
E. The Court of Appeals Had a Clear Legal Duty to Hold

That Paxton Had No Clear Right to Relief Because the
Law Regarding Whether Art. 31.09 Permitted Paxton to
Remove the Trial Judge was Unsettled and Uncertain ....... 1 7
1. The Legislative History and Intent Behind Art. 31.09 ..... 17
2. Questions of First Impression are

Anathema in Mandamus Matters ...................... 22
3. The Court of Appeals Ignored

Republic Parking and Lanford ........................ 24
4. Whether Art. 31.09 Violates Separation of Powers is an

Issue of First Impression "Not Clearly Established" by
This Court's Precedents ............................. 26
PRAYER FOR RELIEF ..................................... 29
CERTIFICATE OF SERVICE ................................ 30
CERTIFICATE OF COMPLIANCE ........................... 31
IV
INDEX OF AUTHORITIES
PAGE
CASES:
Armadillo Bail Bonds v. State,

802 S.W.2d 237 (Tex.Crim.App. 1990) ..................... 28,29
Bowen v. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011) ........... 9
Carroll v. Carroll, 304 S.W.3d 366 (Tex. 2010) .................. 12
Davis v. Crist Industries, 98 S.W.3d 338

(Tex.App.- Fort Worth 2003, pet. refd) ....................... 13
Ex parte Giles, 502 S.W.2d 774 (Tex.Crim.App. 1974) ......... 27,28
Ex parte Paxton, 493 S.W.3d 292

(Tex.App.- Dallas 2016, pet.refd)(en bane) ..................... 3
In re Allen, 462 S.W.3d 47 (Tex.Crim.App. 2015) ............. 11,24
In re Canales, 52 S.W.3d 698 (Tex. 2001) ...................... 26
In re Dow, 481 S.W.3d 215 (Tex. 2015) ..................... 12,17
In re Medina, 475 S.W.3d 291 (Tex.Crim.App. 2015) ............. 10
In re Republic Parking System of Texas, Inc.,

60 S.W.3d 877 (Tex.App.- Houston [14 th Dist.J 2001) . . . . . . . .. 25,26
In re State ex reI. Weeks, 391 S.W.3d 117

(Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . . .. 9,10,17,24,27,29
Jones v. State, 803 S.W.2d 712 (Tex.Crim.App. 1991) ............. 27
v
King v. State, 848 S.W.2d 142 (Tex.Crim.App. 1993) ............. 16
Knowles v. Scofield, 598 S.W.2d 854 (Tex.Crim.App. 1980) ..... 10,29
Lanford v. Fourteenth Court of Appeals,

847 S.W.2d 581 (Tex.Crim.App. 1993) .................... 7,22,25
Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App. 1987) ........... 28
Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App. 1996) ............. 11
Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1987) ............. 28
Sims v. State, 99 S.W.3d 600 (Tex.Crim.App. 2003) .............. 16
State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex. 1994) ......... 12
State ex reI. Curry v. Gray, 726 S.W.2d 125 (Tex.Crim.App. 1987) .. 16
State of Texas ex reI. Hill v. Court of Appeals for the Fifth District,
67 S.W.3d 177 (Tex.Crim.App. 2003) ..................... 2,24,26
State of Texas ex reI. Hill v. Court of Appeals for the Fifth District,
34 S.W.3d 924 (Tex.Crim.App. 2001) ..................... 8,10,11
State ex reI. Lykos v. Fine, 330 S.W.3d 904 (Tex.Crim.App. 2011) .... 9
State ex reI Rosenthal v. Poe, 98 S.W.3d 194

(Tex.Crim.App. 2003) ................................. 9,17,24
State ex reI. Sutton v. Bage, 822 S.W.2d 55 (Tex.Crim.App. 1992) ... 8
State ex reI. Wade v. Mays, 689 S.W.2d 893 (Tex.Crim.App. 1985) ... 8
State v. Zuniga, 512 S.W.3d 902 (Tex.Crim.App. 2017) . . . . . . . .. 15,16
Thomason v. State, 892 S.W.2d 8 (Tex.Crim.App. 1994) ........... 25

VI
Waco LS.D. v. Gibson, 22 S.W.3d 849 (Tex. 2000) ................ 12
Walker Sand, Inc. v. Baytown Asphalt Materials,

95 S.W.3d 511 (Tex.App.- Houston [1 st DistJ 2002, pet. den'd) .... 17
Williams v. State, 707 S.W.2d 40 (Tex.Crim.App. 1986) ........... 29
CODE OF CRIMINAL PROCEDURE:
Art. 31.05 ................................................. 5
Art. 31.08 ................................................ 13
Art. 31.09 ............................................ passim
RULES OF APPELLATE PROCEDURE:
Rule 9.4 ................................................. 31
Rule 47.1 ............................................. 15,16
Rule 66.3(f) .............................................. 16
Rule 72 ................................................... 1
GOVERNMENT CODE:
Sec. 22.201 ............................................... 15
Sec. 74.056 ........................................... 3,25,28
TEXAS CONSTITUTION:
ART. II, 1 ............................................... 27
ART. V, 5 ................................................ 2
Vll
STATEMENT REGARDING ORAL ARGUMENT
Because this case presents novel and important legal questions that
impact prosecutors, defense attorneys, and trial judges across Texas, oral
argument will significantly aid the Court in its decision-making process.
STATEMENT OF THE CASE
This is an original mandamus proceeding brought by the State of
Texas, through Relator Brian W. Wice, Collin County Criminal District
Attorney Pro Tern, under Tex. R. App. P. 72. Relator asks this Court to
compel Respondent, the Fifth Court of Appeals, to vacate its May 30th
order in trial court cause numbers 416-81913-2015,416-82148-2015, and
416-82149-2015, State ofTexas v. Warren Kenneth Paxton, Jr.,l directing
the trial judge to cease from presiding over these cases, and to vacate his
post-April 11, 2017 orders following his transfer of venue in these cases
from Collin County to Harris County, and to cease presiding over these
cases. 2 In re Paxton, Tex.App. Nos. 05-17-00507-CV et seq., slip op. 10.
1 For the sake of clarity, Relator refers to himself as "the State." He refers to Respondent,
the Fifth Court of Appeals, as "the Court of Appeals." He refers to Warren Kenneth Paxton Jr., the
Real Party in Interest, as "Paxton." He refers to Judge George Gallagher, judge of the 3986h District
Court of Tarrant County, and the assigned judge of the 416th District Court of Collin County, as the
"trial judge."
2 In a separate filing today, the State has also sought a stay ofthe Court of Appeals' order.
1
STATEMENT OF THE PROCEDURAL HISTORY
The State adopts by reference the Court of Appeals' statement of the
procedural history of this matter set out in the "Background" portion of its
opinion. In re Paxton, slip op. 2-3.
STATEMENT OF JURISDICTION
Because this matter involves an ongoing criminal prosecution, this
has Court jurisdiction to grant extraordinary relief in this cause pursuant
to TEX. CONST. art. V, 5. State of Texas ex rel. Hill v. Court ofAppeals
for the Fifth District, 67 S.W.3d 177, 180 n. 6 (Tex.Crim.App. 2003).
GROUNDS FOR MANDAMUS RELIEF
l. The Court of Appeals had a clear legal duty to consider its jurisdiction
to entertain Paxton's petition for writ of mandam us and its analysis of the
merits demonstrates that it had a clear legal duty to hold that it did not
have jurisdiction.
2. Texas Code of Criminal Procedure art. 3l.09 gives either party the
power to effectively remove the trial judge after change of venue has been
ordered. Because this statute has not been interpreted by any appellate
court and its viability uncertain - especially when as here, the trial judge
has been specially appointed - the Court of Appeals had a clear legal duty
to hold that Paxton had no clear right to relief.
INTRODUCTION
After Warren Kenneth Paxton, Jr., the Real Party in Interest and
the Attorney General of Texas, was indicted for two first-degree felonies
2
and one third -degree felony, 3 Judge Mary Murphy, Presiding Judge for the
First Administrative Judicial Region of Texas, entered an order 4 that
provided, in pertinent part, that Judge George Gallagher, an active judge
of the 396th District Court of Tarrant County, Texas:
be assigned to the 416 th District Court of Collin County, Texas.
in cause nos. 416-81913-2015, 416-81914-2015, and416-81915-2015 5

where Relator, Warren Kenneth Paxton, Jr. is the Defendant.
"for the cause(s) and style(s) ... until plenary power has expired or
[Judge Murphy] has terminated this assignment in writing,
whichever occurs first."
Over the next two years, Judge Gallagher ruled against Paxton on
a variety of motions, requests, and pre-trial writs. 6 On February 9, 2017
the State filed its motion for change of venue alleging that Paxton's
spokesmen, supporters, and surrogates - a cadre collectively referred to
3 Paxton was indicted for the third-degree felony offense of rendering services as an
investment adviser representative without being registered by the State Securities Board in violation
of 29(I) of the State Securities Act on July 7, 2015. He was also indicted for the first-degree felony
offenses of securities fraud in violation of 29(C) of the State Securities Act on August 18,2015.
4 Judge Murphy's order was entered pursuant to Tex. Govt. Code, 74.056.
5 On August 18,2015, Judge Murphy appointed Judge Gallagher to cause nos. 416-82148-
2015 and 416-82149, the re-indictments in the two first-degree securities fraud matters.
6 See Ex parte Paxton, 493 S. W.3d 292, 297 (Tex.App.- Dallas 2016, pet. rer d)( en banc)
(affirming Judge Gallagher's orders denying pre-trial habeas relief).
3
as "Team Paxton" - embarked on a crusade clearly calculated to taint the
Collin County jury pool. The State cataloged how this group utilized every
conceivable form of mass media available - radio, television, print, and
social media, especially Facebook - to vilify, malign, and defame the
Special Prosecutors, the victims in the securities fraud counts, and Judge
Gallagher, included: 7
suing Judge Gallagher in civil court to improperly and collaterally

attack his lawful orders to pay the Special Prosecutors, before opting
to non-suit Judge Gallagher.
suing the Special Prosecutors - not once but twice - in their official
capacity on "behalf of the taxpayers of Collin County."
accusing Judge Gallagher of not merely "breaking the law" but

"raping the taxpayers [of Collin County]" by enforcing its lawful
orders to fund the Special Prosecutors.
releasing a four-minute long video on YouTube, posted to Paxton's

Facebook page, claiming that he is the victim of a political hit job
orchestrated by the Special Prosecutors at the behest of Byron Cook,
one of Paxton's political adversaries.
the Collin County legislative delegation conspiring to "intervene in

[Paxton's] legal woes by pressuring county leaders to cut funding for
the case" that Paxton's supporters described in public forums as
"judicial tyranny" and "in contempt of court."
On March 30,2017, Judge Gallagher granted the State's motion for
7 All references are taken from the State's motion to change venue in its Appendix.
4
change. On April 11, 2017, Judge Gallagher issued a supplemental order
transferring venue in from Collin County to Harris County.
The same day that Judge Gallagher issued his supplemental order,
Paxton filed a document planting the seeds for his writ of mandamus, a
"Motion for Compliance" with arts. 31.05 8 and 31.09. Art. 31.09 provides:
If a change of venue in a criminal case is ordered under this

chapter, the judge ordering the change of venue may, with the
written consent of the prosecuting attorney, the defense
attorney, and the defendant, maintain the original case
number on its own docket, preside over the case, and use the
services of the court reporter, the court coordinator, and the
clerk of the court of original venue. The court shall use the
courtroom facilities and any other services or facilities of the
district or county to which venue is changed. A jury, if
required, must consist of residents of the district or county to
which venue is changed.
Paxton's pleading, which was withdrawn the next day in lieu of a
"Supplemental Notice for Compliance, "respectfully advis[ed] the Court
that he will not be giving the statutorily-required written consent under
art. 31.09 to allow [it] ... to preside over the matter in Harris County."
Paxton filed his petition for writ of mandamus and prohibition in the
Fifth Court of Appeals on May 16, 2017. The Court of Appeals issued an
8 Art. 31.05 requires the district clerk in the county where a case was indicted to forward the
papers of the cause to the district clerk in the county where venue has been changed.
5
order staying all proceedings on May 16, 201 7. After calling for responses,
the Court of Appeals granted mandamus relief on May 30,2017.
SUMMARY OF ENTITLEMENT TO RELIEF
This original action requires this Court to first determine whether
the Court of Appeals abused its discretion by even entertaining Paxton's
petition for mandamus after repeatedly acknowledging in its opinion that
jurisdiction vested in Harris County and not Collin County once Judge
Gallagher transferred venue. As recounted below, the resolution of this
issue is not onerous; the Court of Appeals failed to address this issue even
as it acknowledged that jurisdiction vested in Harris County. The second
issue requires this Court to determine whether the Court of Appeals
abused its discretion in concluding that veteran Judge Gallagher, specially
assigned to these cases by the regional administrative judge, had a clear
and unequivocal legal duty to step aside once Paxton informed him he
would not give consent under art. 31.09 to Judge Gallagher remaining as
presiding judge. And, as set out below, controlling authority from this
Court fortifies the notion that the Court of Appeals abused its discretion
in this regard as well. But part and parcel of this Court's resolution of the
second issue are a number of legal questions the Court of Appeals failed
6
to reach that touch on whether a literal reading of art. 31.09 will produce
absurd results the Legislature could not have possibly have intended.
Whether the Court of Appeals' interpretation of art. 31.09 will have

a chilling effect on a trial judge considering whether to change venue
knowing he can be jettisoned by the party who opposed the change
of venue.
Whether the Court of Appeals' holding will encourage a party to

swap out venue in exchange for the ability to peremptorily strike a
trial judge whom they believe to be hostile.
Whether the Court of Appeals' ruling will encourage a party or his

surrogates to engage in the very conduct that formed the basis for
a change of venue in this case so that the losing party can exercise
a peremptory strike against a judge deemed hostile.
Whether the Court of Appeals' ruling overrules this Court's decision

in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581
(Tex.Crim.App. 1993), that the parties in a criminal case do not have
the same right to strike an assigned judge enjoyed by civil litigants.
Whether the Court of Appeals' decision violates this Court's line of

authority that the Legislature's attempt to unduly interfere with the
core judicial function violates the Separation of Powers Clause.
Whether the court of appeals' reasoning unduly interferes with the

regional administrative judge's power to assign and remove judges
under In re Republic Parking System ofTexas Inc., 60 S.W.3d 877
J
(Tex.App.- Houston [14th DistJ 2001)(orig. procced.), that constitutes

an end -run around the specific statute and procedure for recusal.
The Court of Appeals grant of mandamus relief to Paxton in a case
of first impression where no clear legal right to relief existed compels this
7
Court to grant the State's petition for writ of mandamus.
ARGUMENT AND AUTHORITIES
A. The Standard ofReview
In 1978, the Texas Constitution was amended "to confer upon the
Court powers to grant extraordinary writs in cases 'regarding criminal law
matters,' in addition to the previously existent mandamus and prohibition
authority to enforce its own jurisdiction." State ex rei. Wade v. Mays, 689
S.W.2d 893,897 (Tex.Crim.App. 1985)(citations omitted). This Court has
repeatedly held that "mandamus is a drastic remedy, to be invoked only
in extraordinary situations." State ex rei. Sutton v. Bage, 822 S.W.2d 55,
57 (Tex.Crim.App. 1992). A court of appeals abuses its discretion in
granting a writ of mandamus if the relator fails to demonstrate in the
court of appeals that: (1) he has no adequate remedy at law; and (2) under
the relevant law and facts, what he seeks to compel is a purely ministerial
act. State ex rei. Hill v. Court ofAppeals for the Fzfth District, 34 S.W.3d
924, 927 (Tex.Crim.App. 2001).
B. The Inadequate Remedy at Law Requirement
This Court has written that while a remedy at law may technically
exist, it "may nevertheless be so uncertain, tedious, burdensome, slow,

8
inconvenient, inappropriate, or ineffective as to be deemed inadequate."
Bowen v. Carnes, 343 S.W.3d 805,810 (Tex.Crim.App. 2011). Because the
State has no adequate remedy at law - indeed, no remedy at all- given
its inability to appeal the Court of Appeals' ruling, see State ex rel. Lykos
v. Fine, 330 S.W.3d 904,913-16 (Tex.Crim.App. 2011), the State has met
this initial requirement. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194,
203 (Tex.Crim.App. 2003)(State had no adequate remedy at law where it
"had no right to appeal respondent's order").
C The (Uinisterial Act" Requirement
The ministerial act requirement may be satisfied only if a relator can
show "a clear right" to the relief sought. In re State ex rel. Weeks, 391
S.W.3d 117, 122 (Tex.Crim.App. 2013). Such a showing is possible only
w hen the facts and circumstances dictate one rational decision "under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or
case law sources), and clearly controlling legal principles." Id.; see also In
re Medina, 475 S.W.3d 291, 299 (Tex.Crim.App. 2015)(mandamus relief
unavailable where "the law is at least unsettled"). A ministerial act is not
implicated if the trial court must weigh conflicting claims or collateral
matters which require legal resolution. State of Texas ex rel. Hill v. Court
9
ofAppeals for the Fifth District, 34 S.W.3d 924,927 (Tex.Crim.App. 2001);
see also Knowles v. Scofield, 598 S.W.2d 854,860 (Tex.Crim.App. 1980)
(writ of mandamus issues only "to require the execution of a matter whose
merit is beyond dispute, and may not be employed as scales in which to
balance the weight of the evidence or to bridge the gap between broken
and disconnected facts.").
Where, as here, the issue is one of first impression,9 "an issue of first
impression can sometimes qualiJYfor mandamus relief when the factual
scenario has never been precisely addressed but the principle of law has
been clearly established." Id. (emphasis added). But this Court stressed
that for this "first impression" exception to apply, "the combined weight
of our precedents [must] clearly establish[]" the proposition advanced by
the relator. In re State ex reI. Weeks, 391 S.W.3d at 126. This Court has
made it clear that "a mandamus proceeding is not the appropriate place
to interpret statutory language, clarify this Court's precedent, or create
law where there is none." In re Allen, 462 S.W.3d 47, 53 (Tex.Crim.App.
2015). "Even a trial court's ruling on a pure question of law is not subject
9 Paxton conceded in the Court of Appeals that "there is no authority addressing these
precise facts." Pet. 13.
10
to writ review where that law was unsettled or uncertain." State ex rei.
lhll v. Court ofAppeals for the Fifth District., 34 S.W.3d at 926.
Viewed through the prism of this Court's legal authority, the Court
of Appeals' refusal to recognize that it had a clear legal duty to hold that:
(1) it lacked jurisdiction to entertain this petition for writ of mandamus,
and (2) Paxton failed to show that unequivocal, well-settled, and clearly
controlling legal principles entitled him to relief on this question of first
impression entitles the State to mandamus relief in this Court.
D. The Court ofAppeals Had a Clear Legal Duty to Hold It Lacked

Jurisdiction to Entertain Paxton s Petition for Writ ofMan dam us
"Jurisdiction of a court must be legally invoked, and when not legally
invoked, the power of the court to act is as absent as if it did not exist."
Olivo v. State, 918 S.W.2d 519,523 (Tex.Crim.App. 1996). Courts always
have jurisdiction to determine their own jurisdiction. Id. Subject-matter
jurisdiction is essential to a court's authority to decide a case and cannot
be waived. Waco ISD. v. Gibson, 22 S.W.3d 849,851 (Tex. 2000). Subject-
matter jurisdiction is never presumed. Carroll v. Carroll, 304 S.W.3d 366,
367 (Tex. 2010). As the Texas Supreme Court has made clear, "Without
jurisdiction, we may not address the merits of the case ... " In re Dow, 481
11
S.W.3d 215,220 (Tex. 2015)(footnote and citation omitted); see also State
Bar ofTexas v. Gomez, 891 S.W.2d 243,245 (Tex. 1994)(before addressing
the merits of a case, "the court must have jurisdiction over the party or
the property attached to the suit, jurisdiction over the subject matter,
jurisdiction to enter a particular judgment, and the capacity to act as a
court."). As set out below, the Court of Appeals refused to comply with its
ministerial duty to decide whether it had jurisdiction to entertain Paxton's
petition for writ of mandamus in the face of the State's repeated assertion
it did not.
Paxton argued that the Court of Appeals had jurisdiction to hear his
petition because the trial judge "is sitting and continuing to preside ... in
the district of this Court of Appeals." Pet. 4. When the State challenged
his assertion in a letter brief filed on May 17, 2017, the Court of Appeals
invited Paxton to respond. On May 23, 2017 Paxton did so, parroting his
claim that jurisdiction existed in the Court of Appeals because the 416 th
District Court of Collin County was in the Court of Appeals' region. Resp.
3. Paxton then argued that, "Because no documents have been sent to
Harris County by the Clerk in Collin County, no Court in Harris County
has acquired jurisdiction over this matter." Resp. 6 (emphasis in original).

12
In a reply filed on May 23, 2017, the State countered that while the
416 th District Court of Collin County was in the Court of Appeals' district,
once the trial judge changed venue to Harris County, he was sitting as the
presiding judge in the 416 th District Court over these matters
exclusively.lO Accordingly, the venue where this trial would take place -
Harris County - would for purposes of appellate jurisdiction trump the
geographical and numerical designation of the Collin County court to
which the trial judge specially assigned by the regional administrative
judge. l1 Reply 5-6.
But the Court of Appeals inexplicably and tellingly failed to address
10 See Davis v. Crist Industries, 98 S.W.3d 338,341 nn. 8 & 9 (Tex.App.-Fort WOlih 2003,
pet. ref' d) (while district judges may exchange districts or hold court for each other, once ajudge has
been specifically assigned to preside in a case, his assignment gives him exclusive authority over the
case and would have to be withdrawn before any other judge could do so.).
11 The State acknowledged Tex. Code. Crim. Proc. art. 31.08, 1(a) provides that, "On the
completion of a trial in which a change of venue has been ordered and after the jury has been
discharged, the court, with the consent of counsel for the state and the defendant, may return the
cause to the original county in which the indictment or information was filed. Except as provided
by Subsection (b) of this section, all subsequent and ancillary proceedings, including the
pronouncement of sentence after appeals have been exhausted, must be heard in the county in which
the indictment or information was filed." But the State pointed out that because trial has not been
completed, the First or the Fourteenth Courts of Appeals had appellate jurisdiction of all pre-trial
matters in these cases, including this mandamus petition. Moreover, the State argued that while
3 mandates that "an appeal taken in a cause returned to the original county under this article must
be docketed in the appellate district in which the county of original venue is located," this provision
has no bearing on appellate jurisdiction in pre-trial matters such as this mandamus petition. But as
set forth below, the Court of Appeals made no mention of any of the State's jurisdictional arguments.
13
the State's threshold argument that it lacked jurisdiction to entertain this
petition. And even more ironic is the fact that Court of Appeals rejected
both of Paxton's justifications for why jurisdiction was proper in the Court
of Appeals: the 416 th District Court sits in Collin County, and the Collin
County District's Clerk's refusal to transfer the case files to Harris County
as set out in the following excerpts from its opinion:
"As a result of [the transfer order], jurisdiction over the cases vested
in the Harris County district courts, and the Collin County district
court was divested of jurisdiction over the cases. The failure of the
Collin County District Clerk to transfer the case files from Collin
County to Harris County did not affect that jurisdictional change."
Slip op. 5 (citation omitted).
"The Harris County district courts have jurisdiction over all further
proceedings in these cases as a matter of law." Slip op. 5.
"We have already determined that the signing of the transfer order
vested jurisdiction in the Harris County district courts and divested
the Collin County district court of jurisdiction over the cases." Slip
op.6.
"Jurisdiction over the cases vested immediately in the Harris

County district courts when [Judge Gallagher] signed the transfer
order." Slip op. 7.
"By transferring the cases ... [Judge Gallagher] ... divested the 416 th
Judicial District Court of Collin County, Texas of jurisdiction over
the cases." Slip op. 9.
And yet in the face of its repeated acknowledgments that jurisdiction
14
over Paxton's cases vested in Harris County, the district within which the
First and Fourteenth Courts of Appeals have concurrent jurisdiction, 12 and
over which the Court ofAppeals acknowledged it had no writ jurisdiction,
slip op. 4, regardless of the District Clerk's failure to forward the case files
to Harris County, the Court of Appeals neither addressed nor defused the
State's threshold jurisdictional argument.
This Court has repeatedly stressed that an appellate court's most
basic ministerial duty is to comply with the mandate in Tex. R. App. P.
47.1 that it hand down an opinion that "addresses every issue raised and
necessary to final disposition of the appeal.,,13 See e.g., State v. Zuniga,
512 S.W.3d 902, 909 (Tex.Crim.App. 2017). That is why this Court has
held that Rule 47.1 which requires the courts of appeals to '''show their
work,' ... maintains the integrity of the system and improves appellate
12 The First and Fourteenth Courts of Appeals' districts are identical, "composed of the
counties of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller,
and Washington." Tex. Govt. Code, 22.201 (b) & (0).
13 The Court of Appeals' failure to honor this most basic of ministerial functions calls to
mind the words of Judge Harold Medina, who served on the Second Circuit Court of Appeals for
almost three decades. "This opinion writing has always been a perfect fascination for me. Part of
the joy of it is that no one can make you put in something you want to leave out. Naturally, this
greatly simplifies the process." Some Reflections on the Judicial Function: A Personal Viewpoint,
38 A.B.A.J. 107, 109 (1952)
15
practice." Sims v. State, 99 S.W.3d 600, 603-04 (Tex.Crim.App. 2003).
That is why a court of appeals' failure to honor these mandates is a
departure from the accepted and usual course of judicial proceedings
warranting the granting of discretionary review pursuant to Tex. R. App.
P. 66.3(f). See e.g.} King v. State, 848 S.W.2d 142, 143 (Tex.Crim.App.
1993). The dereliction of this most basic of all ministerial duties is no less
egregious in an extraordinary matter than it is in a direct appeal; indeed,
it is even more so. It stands to reason that the consequences for such a
violation should be no less severe in the latter case than in the former.
The Court of Appeals' ministerial duty to address the State's claim
that it lacked jurisdiction to entertain Paxton's petition was "clearly fixed
and required by law," and "unequivocal, unconditional and present." State
ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App. 1987)(op. on
rehr'g). And, in the face of the Court of Appeals myriad acknowledgments
that jurisdiction over Paxton's cases vested in Harris County once venue
was transferred, the State had a "clear and indisputable right to relief."
State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003).
Once the Court of Appeals found that jurisdiction was vested in the Harris
County District Courts, it had a clear and unequivocal ministerial duty to

16
hold that without jurisdiction, it was powerless to address the merits of
Paxton's petition for mandamus. In re Dow, 481 S.W.3d at 220.
The Court of Appeals' repeated acknowledgments that jurisdiction
in these matters vested in Harris County and not Collin County fortifies
the conclusion that the Court of Appeals had a clear and unequivocal duty
to dismiss Paxton's petition for want of jurisdiction. See Walker Sanet Inc.
v. Baytown Asphalt Materials, 95 S.W.3d 511,514 (Tex.App.-Houston pt
DistJ 2002, pet. den'd)("When an appellate court concludes it does not
have jurisdiction, it can only dismiss the appeal."). Accordingly, the State
has shown that the reasoning embraced by the Court of Appeals dictates
but one rational decision "under unequivocal, well-settled ... and clearly
controlling legal principles." In re State ex reo Weeks, 391 S.W.3d at 122.
The State, therefore, is clearly entitled to mandamus relief.
E The Court ofAppeals Had a Clear Legal Duty to Hold

That Paxton Had No Clear Right to ReliefBecause the
Law Regarding Whether Art. 31. 09 Permitted Paxton to
Remove the Trial Judge was Unsettled and Uncertain
1. The Legislative History and Intent Behind Art. 31.09 14
14All materials referenced herein are contained in the State's Appendix and are available
at www.lrLstate.tx.us?LASDOCSI74R/IIB2949 74R.pdf (last visited June 2,2017).
17
Art. 31.09 became effective on September 1,1995, after HB 2949 was
enacted by the74th Legislature and signed by Governor Bush. The first
version of HB 2949, filed on March 10, 1995, and authored in the House
of Representatives by Rep. Kamel, provided in pertinent part:
Article 31.09 CHANGE OF VENUE WITHOUT FORMAL TRANSFER OF CASE.
(a) When an order for a change of venue of any court in any

criminal cause in this State has been made, the judge ordering
the change of venue may do so without formally transferring
the case as specified by law. This option will allow the court
to maintain the original cause number on its own docket)
utllize the services of the court reporteI'; the court coordinator
and the clerk of the county from which the case originated
upon agreement in writing of both the county or district
attorne]7; defense attorney and the defendant. The court shall
utilize the courtroom facilities, jury panel as required, and any
operational means made available by the county where the
change of venue is made and to be tried.
(emphasis added). As the italicized language reveals, this initial version
made no mention of the parties' consent being required before the trial
judge could continue to preside.
The first printing of HB 2949 in the House Committee Report
contained a few minor changes in Rep. Greenberg's substituted version:
Article 31.09 CHANGE OF VENUE; USE OF EXISTING SERVICES.
(a) If a change of venue in a criminal case is ordered under this

chapter, the judge ordering the change ofvenue) ma]7; with the
18
written consent of the prosecuting attorne~ the defense
attorne~ and the defendant, maintain the original case
number on its own docket, preside over the case, and use the
services of the court reporter, the court coordinator and the
clerk of the court of original venue. The court shall use the
courtroom facilities and any other services or facilities of the
district or county to which venue is changed. A jury, if
required, must consist of residents of the district or county to
(emphasis added). Once again, the italicized language made no mention
of the parties' consent being required before the trial judge could continue
to preside.
On April 27, 1995, a Bill Analysis was prepared for this version of
HB 2949, that read in pertinent part:
BACKGROUND: Numerous judges throughout the state order change

of venue [sic] in criminal cases ands would like the option of using
existing court services. The county in which the change of venue is
granted is often under-staffed and cannot handle the daily routine
of having a visiting judge in a case in which venue is changed.
PURPOSE: If enacted, C.S.H.B. 2949 would allow judges to preside

over cases and use the existing services when ordering a change of
venue.
This version of HB 2949 was reported out of committee favorably by
a vote of 7-0 on April 27, 1995. On May 9, 1995, the engrossed version of
HB 2949, sponsored by Sen Nixon in the Senate, proposed:
Art. 31.09. USE OF EXISTING SERVICES. (a) If a change of venue

19
in a criminal case is ordered under this chapter, the judge
ordering the change ofvenue may, with the written consent of
the prosecuting attorney, the defense attorney, and the
defendant) maintain the original case number on its own
docket) preside over the case) and use the services of the court
reporter, the court coordinator, and the clerk of the court of
original venue. The court shall use the courtroom facilities
and any other services or facilities of the district or county to
which venue is changed. A jury, if required, must consist of
residents of the district or county to which venue is changed.
(emphasis added). The italicized language is the first time the consent of
the parties as a prerequisite to the trial judge presiding is mentioned.
This version was voted out of the Senate Committee on Criminal Justice
favorably by a vote of 5-0 on May 22, 1995 and placed on the Local and
Uncontested Bills Calendar. 15
On May 18, 1995, a Bill Analysis was prepared for this version ofHB
2949,16 that read in pertinent part:
BACKGROUND: A change of venue is not uncommon in a criminal

case. Currently, the use of the judge's existing services and
resources is not an option to the judge.
PURPOSE: As proposed, HB 2949 authorizes judges to preside over
15 The destination for "local or noncontroversial bills." www.scnatc.statc.tx.us/agcnda. (last

visited June 2, 2017). Not surprisingly, the bill passed the House on May 9, 1995 by a non-record
vote and passed the Senate by a vote of 31-0 on May 27, 1995.
16 A Bill Analysis prepared by the Senate Research Center on June 7, 1995 mirrored the
analysis prepared by the House.
20
cases and use the existing court services when ordering a change of
venue.
Notably, nothing in the Bill Analysis prepared by either the House
or the Senate states that requiring the consent of the parties before the
trial judge could preside was the purpose of HB 2949. Moreover, the
captions of the House, Engrossed, Senate, and Enrolled versions of HB
2949 refer to it as an Act "relating to the use of certain court services and
facilities after a change of venue has been ordered in a criminal
proceeding." No mention in the captions refers to the unfettered power of
either party to peremptorily strike the judge who has ordered the change
of venue. While not conclusive as to what impelled the House to amend
HB 2949 to include the language that became art. 31.09(a), this history at
least strongly suggests that the Legislature may not have intended to give
the parties the unbridled power to peremptorily strike the trial judge but
intended instead to permit the trial judge to bring his staff to the county
where venue was transferred. See Lanford v. Fourteenth Court ofAppeals,
847 S.W.2d at 587 (plain language of Tex. Govt. Code, 74.053(d) did not
permit party to peremptorily strike an assigned judge in a civil case
because "we think it unlikely that the legislators who voted for subsection
21
(d) had such a result in mind.").
As is the case with almost any bill that survives the sausage-making
construct of the legislative process, how or why the language requiring the
written consent of the parties before the trial judge could utilize his staff
morphed into language requiring the written consent of the parties before
the trial judge could preside is unclear. But given the legislative history,
bill analysis, background, and purpose behind HB 2949, the Court of
Appeals' assertion that, "The State does not articulate why following the
plain language of article 31.09 to this case will lead to an absurd result,
nor can we envision why it would," slip op. 7, as set forth below, does not
support its decision to afford Paxton extraordinary relief.
2. Questions of First Impression are Anathema in Mandamus Matters
In construing art. 31.09 so as to afford either party in a criminal case
the right to peremptorily strike a trial judge, especially one appointed to
these cases by the regional administrative judge, the Court of Appeals
decided what the parties have conceded is a question of first impression.
As David Slayton, Director of the Office of Court Administration opined,
22
art. 39.01 "had likely never been used to remove a judge.,,17 Slayton's
sentiments have been echoed by Chris Bowman, Harris County District
Courts Administrator, who noted, "We've never had a situation exactly
like this here in recent memory .... This is a unique set of circumstances
for US."18 Because this Court has held that questions of first impression
are ordinarily anathema in mandamus proceedings, the Court of Appeals'
conclusion that Paxton had shown a clear right to relief based on case law
that was neither unclear nor unsettled was itself an abuse of discretion.
The State contended in the Court of Appeals that it was because of
the unique set of circumstances in this case and the fact that art. 31.09
was untouched by appellate review necessarily meant that Paxton had not
and could not show that he had a "clear and indisputable right to relief."
State ex reI. Poe v. Rosenthal, 98 S.W.3d at 198. Because the law was
"unsettled and uncertain," State ex rel. Jh]J v. Court of Appeals for the
Fifth District, 67 S.W.3d at 181, the State argued that Paxton's petition
for mandamus was "not the appropriate place to interpret statutory
17 MeGA UGHY, "Court sides with Attorney General Ken Paxton in push to remove presiding
judge." 'vvww.dallasncws.com (May 30, 2017)(last visited June 1,2017).
18 Id.
23
language, clarify this Court's precedent, or create law where there is
none." In reAllen, 462 S.W.3d at 53. Relying on this Court's decision in In
re State ex rei. Weeks, 391 S.W.3d at 126, the State advanced, inter alia,
three reasons why "the combined weight of .. precedents" did not "clearly
establish[ J" the proposition advanced by Paxton:
Art. 31.09 did not apply to Judge Gallagher's assignment;
applying the plain language of art. 31.09 leads to absurd results the
Legislature could not possibly have imagined; and
Art. 31.09 violates the Separation of Powers Clause of the Texas

Constitution.
The Court of Appeals wasted little time turning a blind eye to each
of the State's submissions. As set out below, the reasoning and analysis
in the Court of Appeals' decision will not support the great weight rested
upon it.
3. The Court of Appeals Ignores Republic Parking and Lanford
The Court of Appeals rejected the State's argument that art. 31.09
did not apply to Judge Gallagher because he was appointed to preside over
these cases by the regional administrative judge under 74.056(b) of the
government code, noting that, "The State failed to provide authority for
this proposition and we have found none." Slip op. 8. In reality, the State
24
didprovide authority - In re Republic Parking System ofTexas Inc., 60 J
S.W.3d 877 (Tex.App.- Houston [14 th DistJ 2001)(orig. proceed.) - but the
Court of Appeals did not discuss or distinguish it. 19 Because Republic
Parkingstands for the tenet that, "If a specific judge is assigned to preside
in a specific case, that assignment must be withdrawn before any other
judge may [sit]," id. at 879, Judge Gallagher can only be removed by the
regional administrative judge, and not by Paxton. 20 Interpreting art. 31.09
in the manner the Court of Appeals did gives the parties free rein to strike
an assigned judge in a criminal case, a right this Court has held does not
exist, Lanford v. Fourteenth Court of Appeals, 847 S.W.2d at 587, and
produces an absurd result the Legislature could not have intended. See
In re Canales, 52 S.W.3d 698, 703 (Tex. 2001)(refusing to construe Tex.
Govt. Code 74.053 in a way that "increases delay and disrupts the
judicial process if a party can remove a judge without cause in the middle
19 See Thomason v. State, 892 S.W.2d 8, IOn. 4 (Tex.Crim.App. 1994)("It is axiomatic that
an appellate court must rely upon and apply the correct legal authority to resolve a point of error.
In the instant case, appellant cited and relied upon Turner . ... However, the Court of Appeals failed
to cite, discuss or distinguish Turner in its resolution of this appeal.").
20 The regional administrative judge's order assigned Judge Gallagher to the 416 1h District
Court of Collin County in these cause where Relator was the defendant, "until plenary power has
expired or the undersigned has terminated this assignment in writing, whichever occurs first."
25
of a case"). While the Court of Appeals held "the Legislature has made no
distinction in article 31.09 between elected and appointed judges," slip op.
8, the court in Republic Parking most certainly has. This palpable conflict
between and harmonization of the Court of Appeals' interpretation of art.
31.09 and Republic Parking, is a matter of first impression written on a
blank slate where the law's uncertain and unsettled state did not give
Paxton the "clear legal right" to the relief the Court of Appeals awarded
him. See State ex reI. Hill v. Court of Appeals for the Fifth District, 67
S.W.3d at 181 ("As the court of appeals' analysis demonstrates, the law is
not clear or settled, and therefore it cannot be said that there is a 'clear
legal right' under the law that will justify mandamus relief.").
4. Whether Art. 31.09 Violates Separation of Powers is an Issue of

First Impression "Not Clearly Established" by this Court's Precedents
The Court of Appeals rejected the State's contention that art. 31.09
violated Art. II, 1 of the Texas Constitution, the Separation of Powers
Clause,21 because it gave the Legislature the authority to provide a party
21 "The powers of the Government of the State of Texas shall be divided into three distinct
departments, each of which shall be confided to a separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive to another, and those which are Judicial to another;
and no person, or collection of parties, being of one ofthese departments, shall exercise any power
properly attached to either of the others, except in the instances herein expressly permitted."
26
in a criminal case with unfettered power to remove an otherwise qualified
jurist from sitting, especially one such as Judge Gallagher assigned by the
Regional Administrative Judge to a particular case. Slip op. 8. But "the
combined weight of [this Court's] precedents" do not "clearly establish" the
proposition advanced by the Court of Appeals in resolving this question of
first impression, In re State ex rel. Weeks, 391 S.W.3d at 126, and the
Court of Appeals' ruling conflicts with this Court's case law on this issue.
This Court has held that the Separation of Powers Clause prohibits
one branch of government from exercising a power inherently belonging
to another branch or from unduly interfering with another branch so that
the other branch cannot effectively exercise its constitutionally assigned
powers. Jones v. State, 803 S.W.2d 712, 715-16 (Tex.Crim.App. 1991).
This clause requires that "any attempt by one department of government
to interfere with the powers of another is null and void." Ex parte Giles,
502 S.W.2d 774,780 (Tex.Crim.App. 1974). This Court has concluded that
a constitutional violation arises when the core functioning of the judicial
process in a field constitutionally committed to the control of the courts is
interfered with by the executive or legislative branches. Id. at 716; see
also Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.
27
1990)(legislature may not interfere in core judicial functions).
The Court of Appeals' construction of art. 31.09 has empowered the
Legislature to enact a statute that not only trumps Republic Parking but
encroaches on the regional administrative judge's exclusive authority to
appoint Judge Gallagher under 74.056(b), and her exclusive authority
to remove him. While the Court of Appeals found that art. 31.09 was a
valid exercise of the Legislature's power, this Court has made it clear that
"the Legislature may not unduly interfere with the judicial function under
the guise of establishing rules of court." Armadillo Bail Bonds v. State,
802 S.W.2d at 241. Tellingly, the Court of Appeals neither discussed nor
distinguished the four decisions from this Court sustaining separation of
powers challenges the State relied on. 22
The Court of Appeals not only misinterpreted this Court's precedent
but created law where there is none. See In reAllen, 462 S.W.3d at 53 ("a
22 Meshell v. State, 739 S.W.2d 246,257 (Tex.Crim.App. 1987)(Texas Speedy Trial Act
violated Separation of Powers Clause because it improperly encroached on prosecutorial discretion);
Rose v. State, 752 S.W2d 529, 531 (Tex.Crim.App. 1987)Gury instruction on parole law violated
Separation of Powers Clause because it unduly interfered with Executive Branch's clemency
authority); Armadillo Bail Bonds v. State, 802 S.W.3dat241 (art. 22.16(c)(2) "unduly interferes with
the Judiciary's effective exercise of its constitutionally assigned power" and violated Separation of
Powers Clause); Williams v. State, 707 S. W.2d 40, 45 (Tex.Crim.App. 1986)(statute requiring trial
court to remit at least 95% offorfeited bond unduly interfered withjudiciary' s authority over amount
of forfeited bond to be remitted and violated Separation of Powers Clause).
28
mandamus proceeding is not the appropriate place to interpret statutory
language, clarify this Court's precedent, or create law where there is
none."). Moreover, it abused its discretion by awarding Paxton mandamus
relief in a case of first impression because he failed to show that the facts
and circumstances dictated one rational decision "under unequivocal, well-
settled (i.e., from extant statutory, constitutional, or case law sources),
and clearly controlling legal principles." In re State ex rei. Weeks, 391
S.W.3d at 122. Because the merit of Paxton's claim for extraordinary relief
was not beyond dispute, the Court of Appeals improperly and erroneously
employed his writ of mandamus as "scales in which to balance the weight
of the evidence or to bridge the gap between broken and disconnected
facts." Knowles v. Scofield, 598 S.W.2d at 860.
For these reasons, the State is entitled to the extraordinary relief of
mandamus in this Court that Paxton was not in the Court of Appeals.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, Relator, the State of Texas, asks
this Court to issue a writ of mandamus to vacate Respondent's May 30th
order removing Judge Gallagher as presiding judge, and vacating his post-
April 11, 2017 orders following his transfer of venue in these cases.
29
RESPECTFULLY SUBMITTED,
/s/ BRIAN W. WICE
BRIAN W. WICE
Bar No. 21417800
440 Louisiana Suite 900
Houston, Texas 77002
(713) 524-9922 PHONE
(713) 236-7768 FAX
LEAD COUNSEL
KENT A. SCHAFFER
Bar No. 17724300
712 Main Suite 2400
(713) 228-8500 PHONE
(713) 228-0034 FAX
NICOLE DeBORDE
Bar No. 00787344
712 Main Suite 2400
(713) 228-8500 PHONE
ATTORNEYS PRO TEM

THE STATE OF TEXAS
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5(d), I certify that this document was
served on all counsel of record via electronic filing on June 2, 201 7.
/s/ BRIANW. WICE
BRIAN W. WICE
30
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(1)(i)(1), I certify that this document

complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D):
1. Exclusive of the exempted portions set out in Tex. R. App. P. 9.4(i)(1),

this document contains 6644 words.
2. This document was prepared in proportionally spaced typeface using

Word Perfect 8.0 in Century 14 for text and Times New Roman 12 for
footnotes.
/s/ BRIAN W. WICE
BRIAN W. WICE
31
NOS.WR- ___________________
IN THE
COURT OF CRIMINAL APPEALS
IN RE THE STATE OF TEXAS Ex REL. BRIAN W. WICE, RELATOR
ON STATE'S PETITION FOR WRIT OF MANDAMUS

AGAINST THE FIFTH COURT OF APPEALS
IN CAUSE NOS. 416-81913-2015; 416-82148-2015; 416-82149-2015

OF COLLIN COUNTY, TEXAS
APPENDIX TO RELATOR'S
PETITION FOR WRIT OF MANDAMUS
BRIAN W. WICE KENT SCHAFFER

Bar No. 21417800 Bar No. 17724300
440 Louisiana Suite 900 NICOLE DEBORDE
Houston, Texas 77002-1635 Bar No. 00787344
(713) 524-9922 PHONE 712 Main Suite 2400
(713) 236-7768 FAX Houston, Texas 77002
LEAD COUNSEL (713) 228-8500 PHONE
wicelaw@att.net (713) 228-0034 FAX
THE STATE OF TEXAS: REAL PARTY IN INTEREST

COLLIN COUNTY CRIMINAL DISTRICT ATTORNEYS PRO TEM
INDEX TO STATE'S APPENDIX
TAB DOCUMENT TITLE

1 Court of Appeals' Opinion
2 Court of Appeals' Order
3 State's Motion for Change of Venue
4 Legislative File Materials: HB 2949
5 HB 2949 Captions
6. Judge Murphy's Amended Order of Assignment:

August 18, 2015
7. Court of Appeals' Order Inviting Paxton to

Reply to State's Letter Brief Regarding the
Court of Appeals' Jurisdiction
2
APPENDIX TAB 1
COURT OF APPEALS' OPINION

Conditionally GRANT in Part; and Opinion Filed May 30, 2017.
In The
([ourt of l\pp.caLs
lJiiftl1 iHntrict of W.cxan at :mallan
No.05-17-00507-CV
No.05-17-00508-CV
No. 05-17 -00509-CV
IN RE WARREN KENNETH PAXTON, JR., Relator
Original Proceeding from the 416th Judicial District Court

Trial Court Cause Nos. 416-81913-2015,416-82148-2015, and 416-82149-2015
OPINION
Before Justices Bridges, Fillmore, and Schenck
Opinion by Justice Fillmore
Before the COUli is relator's May 15,2017 petition for writ of mandamus and petition for
writ of prohibition. This original proceeding arises from an April 11, 2017 order granting the
State's motion to transfer venue of the underlying cases from Collin to Harris County pursuant to
article 31.02 of the Texas Code of Criminal Procedure. Relator complains that the respondent,
the Honorable George Gallagher, continues to preside over the underlying cases without relator's
consent and has interfered with the Collin County District Clerk's duty to transfer the original
papers of the underlying cases to Harris County pursuant to article 31.05 of the code of criminal
procedure.
Relator asks this Court to issue a writ of mandamus vacating all orders signed by
respondent following the April 11, 2017 order transferring venue. Relator also asks this Court to
issue a writ of prohibition against respondent prohibiting him from taking any further action in
the underlying cases. For the following reasons, we agree with relator that respondent's orders
signed after the transfer order are void and conditionally grant the petition for writ of mandamus.
Background
Respondent was assigned to the 416th Judicial District Court of Collin County, Texas to
preside over the criminal cases styled The State of Texas v. Warren Kenneth Paxton, Jr., Cause
Nos. 416-81913-2015, 416-82148-2015, and 416-82149-2015. Almost two years later, on April
11, 2017, respondent signed an order granting the State's motion to transfer venue to Harris
County pursuant to article 31.02 of the code of criminal procedure. I The same day, relator filed
a "Motion for Court's Compliance with Texas Code of Criminal Procedure Articles 31.05 and
31.09" in which relator advised respondent that relator did not consent under article 31.09 to
respondent presiding over the cases in Harris County. 2 Relator's motion also requested that
respondent order the Collin County District Clerk to send a certified copy of the case files to the
Harris County District Clerk so that a new judge could be assigned.
The next day, April 12, 2017, relator supplemented his motion indicating that he did not
seek entry of any order by respondent and only intended to notify respondent that relator
expected statutory compliance with the code of criminal procedure. The same day, respondent
entered a scheduling order and notified the parties via e-mail that he intended to conduct jury
selection and trial beginning September 11, 2017 in Harris County. Five days later, respondent,
via e-mail, invited the parties to meet with him that week in Houston to tour the courthouse and
view the facilities in advance of trial. Two weeks later, relator sent a letter to the Collin County
District Clerk requesting that she transmit the case files to Harris County as required by article
I Article 31.02 governs a State's motion to transfer venue in a criminal casco See TEX. CODE CRIM. PROC. ANN. art. 3 J .02 (West 2006).
?
~ AI1icie 3 J .05 sets out the clerk's duties on change of venue and article 31.09 addresses the circumstances under which a judge ordering a
change in venue may continue to preside over the case and utilize services of the court reporter, the court coordinator, and the clerk of the court of
original venue. See TEX. CODE CRIM. PROC. ANN. arts. 31.05 (West 2006), 31.09 (West Supp. 2016).
-2-
31.05 of the code of criminal procedure. The Clerk responded that she does not "plan to transmit
the case papers to Harris County at this time" because it is her "understanding that [respondent]
continues to preside over these cases under their current Collin County cause numbers and that
he continues to use the services of the Collin County District Clerk's office as the custodian of
the records" in these cases. The district clerk also indicated that if she complied with relator's
request to send the case files to Harris County, she would be "perhaps running afoul of the
directions, expressed and/or implicit, of the Presiding Judge regarding venue and my office's
ongoing role."
Relief Requested
Relator now seeks relief from this Court. He contends respondent may not continue to
preside over the cases in Harris County because a judge that orders a change in venue in a
criminal case may continue to preside over the case after the transfer and continue to use the
transferor court's administrative resources only if the State, the defendant, and the defendant's
counsel consent. See TEX. CODE CRIM. PROC. art 31.09 (West Supp. 2016). According to
relator, because he has not consented to respondent continuing to preside over the case,
respondent no longer has authority to act and all actions taken after the April 11, 2017 transfer
order are void as a matter of law. Relator asks this Court to grant a writ of mandamus vacating
respondent's April 12, 2017 scheduling order and all other orders issued by respondent after the
April 11, 2017 transfer order. Relator further requests the Court to issue a writ of prohibition to
prevent respondent from taking any further actions in the cases.
Analysis
This Court has jurisdiction to issue a writ of mandamus and all other writs necessary to
enforce the jurisdiction of the court. TEX. GOV'T CODE ANN. 22.221(a) (West 2004). We also
have jurisdiction to issue all writs of mandamus against a judge of a district court in our district.
-3-
TEX. GOV'T CODE ANN. 22.221(b)(l). We have writ jurisdiction over district courts in Collin
County but not Harris County. See TEX. GOV'T CODE ANN. 22.201(f) (West Supp. 2016).
To establish a right to mandamus relief in a criminal case, the relator must show the trial
court violated a ministerial duty and there is no adequate remedy at law. In re State ex reI.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). The ministerial act
requirement is satisfied if the relator can show a clear right to the relief sought. Id. "A clear
right to relief is shown when the facts and circumstances dictate but one rational decision 'under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and
clearly controlling legal principles. '" Id. When a trial court acts beyond the scope of its lawful
authority, a clear right to relief exists. See, e.g., State ex reI. Watkins v. Creuzot, 352 S.W.3d
493, 506 (Tex. Crim. App. 2011) (orig. proceeding) (holding State entitled to mandamus relief
because there was no basis under Texas law to conduct pretrial evidentiary hearing to determine
adequacy of mitigation case in capital-murder proceeding); see also State ex rel. Lykos v. Fine,
330 S.W.3d 904, 919 (Tex. Crim. App. 2011) (orig. proceeding) (holding State entitled to
mandamus relief because there was no state law or procedure permitting pretrial hearing and
ruling that would deprive relator of the opportunity to try its capital case and seek the death
penalty). An issue of first impression can qualify for mandamus relief when the principle of law
is clearly established. Weeks, 391 S.W.3d at 122.
When a court signs an order changing venue, jurisdiction immediately and automatically
vests in the transferee court. Williams v. State, 145 Tex. Crim. 536, 540-41, 170 S.W.2d 482,
485-86 (1943) ("A change of venue not only absolutely divests the court from which the cause
was removed of jurisdiction, but it also clothes the court to which removal is had with the same
jurisdiction that reposed prior to the change in the court of original venue."); Webb v. State, 133
Tex. Crim. 32, 36,106 S.W.2d 683,685 (1937) ("The order changing the venue in this case from
-4-
Sabine to Newton county conferred jurisdiction upon the district court of the latter county. The
court's order changed the venue; the certified copy thereof was merely evidence of the change of
venue."); see also In re Gibbs, No. 06-15-00002-CV, 2015 WL 400468, at *2 (Tex. App.-
Texarkana Jan. 30, 2015, orig. proceeding) (mem. op.) ("The failure to transfer the physical file
from Fannin County to Tarrant County affects neither the finality of the transfer order nor the
transferring court's plenary jurisdiction. ").
Here, respondent signed the order transferring the case to Harris County on April 11,
2017. As a result of that order, jurisdiction over the cases vested in the Harris County district
courts, and the Collin County district cOUli was divested of jurisdiction over the cases. The
failure of the Collin County District Clerk to transfer the case files from Collin County to Harris
County did not affect that jurisdictional change. See, e.g., Gibbs, 2015 WL 400468 at *2. The
Harris County district courts have jurisdiction over all further proceedings in these cases as a
matter of law.
This conclusion does not end our inquiry, however, because respondent has taken actions
after transferring venue that may be void. The issuance of a void order is an abuse of discretion.
In re Gibbs, 2015 WL 400468, at *1 (citing In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (per curiam) (orig. proceeding) and In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (per
curiam) (orig. proceeding)). "Mandamus is proper if a trial court issues an order beyond its
jurisdiction." In re Sw. Bell Tel. Co., 35 S.W.3d at 605. Although appellate courts do not have
jurisdiction to address the merits of appeals from void orders or judgments, they do have
jurisdiction "to determine that the order or judgment underlying the appeal is void and make
appropriate orders based on that determination." Freedom Commc 'ns., Inc. v. Coronado, 372
S.W.3d 621, 623-24 (Tex. 2012); Bossley v. Dallas Cty. Mental Health & Mental Retardation,
No. 05-99-00081-CV, 1999 WL 993901, at *3 (Tex. App.-Dallas Nov. 2,1999, no pet.) (mem.
-5-
op., not designated for publication) ("When a party appeals from a void order and the appellate
court lacks jurisdiction to consider the appeal, the proper procedure is for the appellate court to
declare the order to be void and dismiss the appeal for lack of jurisdiction. "). Similarly, when, as
here, a party seeks mandamus relief from a trial court's void orders, an appellate court may
conditionally grant the writ and direct the trial court to set aside the void orders and take other
steps necessary to cure any problems caused by the void orders. See In re Gibbs, 2015 WL
400468, at *3 (conditionally granting writ and directing trial court to set aside void order and to
transfer the physical file in the case to the transferee court).
A judgment is void when it is apparent from the record that "the court rendering the
judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction
to enter the judgment, or no capacity to act as a court." Mapco, Inc. v. Forrest, 795 S.W.2d 700,
703 (Tex. 1990) (orig. proceeding) (per curiam).
Relator argues that any actions taken by respondent after respondent signed the transfer
order are void because the Harris County district courts have jurisdiction over the cases and,
absent relator's consent, respondent may not preside over the cases in Harris County. We have
already determined that the signing of the transfer order vested jurisdiction in the Harris County
district courts and divested the Collin County district court of jurisdiction over the cases.
Relying on article 31.09 of the Texas Code of Criminal Procedure, relator maintains that the
transfer also deprives respondent of any authority to act in the cases. Article 31.09 provides as
follows:
(a) If a change of venue in a criminal case is ordered under this chapter, the judge
ordering the change of venue may, with the written consent of the prosecuting
attorney, the defense attorney, and the defendant, maintain the original case
number on its own docket, preside over the case, and use the services of the court
reporter, the court coordinator, and the clerk of the court of original venue. The
court shall use the courtroom facilities and any other services or facilities of the
district or county to which venue is changed. A jury, if required, must consist of
residents of the district or county to which venue is changed.
-6-
TEX. CRIM. PROC. CODE Ann. art. 31.09(a).
Jurisdiction over the cases vested immediately in the Harris County district courts when
respondent signed the transfer order. The Texas Constitution does not allow the 416th Judicial
District Court to sit outside of the Collin County seat, McKinney, absent express statutory
authority. TEX. CON ST. art. V, 7. The only authority by which this may occur is article 31.09,
which requires consent of the parties. Thus, absent effective application of article 31.09,
respondent may not continue to preside over the cases or utilize the services of the court reporter,
court coordinator, or clerk of the court of original venue. Relator has unequivocally stated that
he did not consent to respondent continuing to preside over the cases or otherwise acting in
accordance with article 31.09, and no written consent appears in our record. Accordingly, under
the plain language of the statute, respondent is without authority to continue to preside over the
cases and is also without authority to issue orders or directives maintaining the case files in
Collin County. Consequently, all orders issued by respondent after he signed the April 11, 2017
transfer order are void.
In reaching this conclusion, we necessarily reject the State's suggestion that applying the
plain language of article 31.09 to this case will lead to an absurd result. See Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991) (explaining courts should not apply statutory language
literally where plain language would lead to absurd consequences Legislature could not possibly
have intended, thus respecting lawmaking powers of the legislative branch). The State does not
articulate why following the plain language of article 31.09 in this case would lead to an absurd
result, nor can we envision why it would. Moreover, prior to the 1995 enactment of article
31.09, no statute allowed a presiding judge to maintain a case on his docket and continue to use
his court's administrative resources, after the case had been transferred to another venue. See
Fain v. State, 986 S.W.2d 666,675-76, n.l3 (Tex. App-Austin 1998, pet. ref' d). Article 31.09
-7-
provides a limited exception to the long-standing rule that a judge does not follow the transferred
case. The judge may continue to preside over the case only with the agreement of the parties.
We likewise reject the State's argument that article 31.09 does not apply to respondent
because he was appointed to preside over these cases by the regional administrative judge under
section 74.056(b) of the government code. The State failed to provide authority for this
proposition and we have found none. 3 To be sure, respondent was appointed to "the 416th
[Judicial] District Court of Collin County" to preside over these cases. But the Legislature has
made no distinction in article 31.09 between elected and appointed judges, and we will not create
one by judicial fiat. See Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (the
objective in statutory construction is to give effect to the Legislature's intent by looking first to
the statute's literal text, reading words and phrases in context and construing them according to
the rules of grammar and usage, and presuming "that every word in a statute has been used for a
purpose and that each word, phrase, clause, and sentence should be given effect if reasonably
possible") (internal citations omitted); see also Merritt v. State, 252 S.W.3d 757, 760 (Tex.
App.-Texarkana 2008, no pet.) ("We will assume that the Legislature used precisely the words
that it intended to use and apply them as written.").
The State's arguments that applying atiicle 31.09 to an appointed judge somehow thwarts
the objective of section 74.056(b) of the government code and results in a violation of the
separation of powers clause 4 are equally unavailing. Section 74.056(b) generally allows the
presiding judge of one administrative region to ask the presiding judge of another administrative
3 We note that in a somewhat analogous situation, the Corpus Christi Court of Appeals has held that the appointment of a judge to hear a
case following recusal does not shield the case frol11 a subsequent transfer order of the local administrative judge:
[T]he Presiding Judge's appointment of a new judge to hear the case following recusal does not in itself create a
proprietary right to have that particular judge and court decide the case for its duration. We hold that, as with the initial
assignment of the lawsuit to a judge and court, any subsequent appointment is subject to the lawful transfer orders of the
local Administrative Judge.
In re PC & E Reala Energy, L.P., 4 S.W.3d 897, 901 (Tex. App.-Corpus Christi 1999, orig. proceeding).
4 TEX. CONST. art. II, ~ 1
-8-
regIOn to furnish judges to aid in the disposition of litigation pending in a county in the
administrative region of the presiding judge who makes the request. TEX. GOy'T CODE ANN.
74.056(b) (West 2013). The State does not explain how the general language in section
74.056(b) permitting appointment of judges between administrative regions somehow supplants
the specific language in article 31.09(a) requiring the parties' consent for a judge to continue to
preside over a case he has transferred to a different venue. Similarly, the State's complaint that
application of article 31.09 to an appointed judge violates the separation of powers clause and
"affords the Legislature the authority to provide [relator] with the unchecked authority to remove
[respondent] from presiding" and "encroaches on [the regional administrative judge's] exclusive
authority ... to appoint [respondent] to Relator's cases ... and her sole authority to remove him"
is also misplaced. Respondent was assigned to a particular court to preside over particular cases
pending in that court. By seeking a change in venue, the State invoked Chapter 31 of the code of
criminal procedure and the various requirements of that chapter of the Code. By transferring the
case on the State's motion, respondent, not relator, triggered the requirements of articles 31.05
and 31.09 and divested the 416th Judicial District Court of Collin County, Texas of jurisdiction
over the cases. Following the signing of the transfer order, the only action respondent could take
was to vacate the transfer order during the period of the court's plenary power. Because he did
not do so, respondent's authority to act expired when the venue order became final.
Consequently, respondent's appointment also terminated at that time.
A trial court entering a void order has a ministerial duty to vacate the order. State ex rei.
Thomas v. Banner, 724 S.W.2d 81, 85 (Tex. Crim. App. 1987) (orig. proceeding) ("Absent
proper jurisdiction, it was the trial court's ministerial duty to vacate the orders."). Mandamus is
the proper relief to set aside an improper order. Jd. Because we conclude that the trial court
lacked authority to issue orders or directives after signing the transfer order, all orders and
-9-
directives issued after he signed the April 11, 2017 transfer order are void and should be vacated.
See In re Melton, 478 S.W.3d 153, 157 (Tex. App.-Texarkana 2015, no pet.) (conditionally
granting writ and directing trial court to vacate void nunc pro tunc judgments); In re Gibbs, 2015
WL 400468, at *3 (conditionally granting writ, directing the court to set aside void order, and
directing the court to transfer the physical file in this case to the transferee court).
Accordingly, we conditionally grant the petition for writ of mandamus and lift our May
16,2017 stay order. We direct respondent to vacate the April 12,2017 scheduling order, vacate
any other orders issued by respondent after the April 11, 2017 transfer order, withdraw any
directives made, explicit or implied, that preclude the Collin County District Clerk from
performing her mandatory duty to transfer the case files to the Harris County district courts
under article 31.05 of the Texas Code of Criminal Procedure, and direct the Collin County
District Clerk to transfer the case files to the transferee district court in Harris County. The writ
of mandamus will issue only if respondent fails to act in accordance with this opinion.
We do not have jurisdiction to issue the requested writ of prohibition because there is no
appeal pending and a writ of prohibition is not necessary to protect our jurisdiction. See Bayoud
v. N. Cent. Inv. Corp. Through Bayoud, 751 S.W.2d 525, 529 (Tex. App.-Dallas 1988, writ
denied) ("A court of appeals does not have jurisdiction, absent a pending appeal, to issue a writ
of prohibition requiring that a trial court refrain from performing a future act."); see also In re
Yates, 193 S.W.3d 151, 152 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (courts of appeals
have jurisdiction to issue writs other than writs of mandamus only if the writ is "necessary to
-10-
enforce the jurisdiction of the court.") (citing TEX. GOy'T CODE ANN. 22.221(a) (Vernon
2004)). Accordingly, we dismiss the petition for writ of prohibition for want of jurisdiction.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
170507F.P05
-11-
APPENDIX TAB 2
COURT OF APPEALS' ORDER

Order entered May 30, 2017
In The
of ~ptals
<tOUtt
jfiftb misttirt of 'lEtxas at 1BaUas
No. 05-17-00507 -CV
No. 05-17 -00508-CV
No. 05-17 -00509-CV

CoHin County, Texas
ORDER
Based on the Court's opinion of this date, we conditionally grant relator's May 15, 2017
petition for writ of mandamus, we dismiss relator's petition for writ of prohibition for want of
jurisdiction, and we lift the Court's May 16, 2017 stay order.
We ORDER the trial court to issue a written ruling or rulings, on or before June 9, 2017,
vacating its April 12, 2017 scheduling order, vacating any other orders issued by respondent after
the April 11, 2017 transfer order, withdrawing any directives made, explicit or implied, that
preclude the Collin County District Clerk from performing her mandatory duty to transfer the
case files to the Harris County district courts under article 31.05 of the Texas Code of Criminal
Procedure, and directing the Collin County District Clerk to transfer the case files to the
transferee district court in Harris County.

We further ORDER the trial court to file with this Court, on or before June 14, 2017, a
certified copy of its order(s) issued in compliance with this order and with the Court's opinion of
this date. Should the trial court fail to comply with this order and with the Court's opinion of
this date, the writ will issue.
We ORDER the clerk of the court to lift the stay granted on May 16,2017.
/s/ ROBERT M. FILLMORE

JUSTICE
APPENDIX TAB 3
STATE'S MOTION FOR CHANGE OF VENUE

Filed: 2{9/2Q171Q:34:3Q AM
Lynne Finley
District CleIR
By Donnie Prentice Deputy
Envelope ID: 15212051
NO. 416ft81913~2015; NO. 416-82148-2015; NO. 416-82149-2015
THE STATE OF TEXAS IN THE DISTRICT COURT
v. COLLIN COUNTY, TEXAS
WARREN KENNETH PAXTON, JR. 416TH JUDICIAL DISTRICT
STATE'S MOTION FOR CHANGE OF VENUE, OR IN THE

ALTERNATIVE, CHANGE OF VENUE ON COURT'S OWN MOTION
To THE HONORABLE GEORGE GALLAGHER, PRESIDING JUDGE:
THE STATE OF TEXAS, by and through its undersigned Collin County
District Attorneys Pro Ten1, BRIAN WrCE, KENT SCHAFFER, and NICOLE
DEBORDE, ("The Special Prosecutors"), in these matters, pursuant to TEX.
ConE CRIM. PROC. Art. 31.02,1 files its motion for change of venue~ or, in
the alternative, pursuant to TEX. CODE CRIM. PROC. Art. 31.01,2 asking
I. Art. 31.02 provides, in pertinent part, that,"Whenever the district or county attorney shall
represent in writing to the court before which any felony or misdemeanor case punishable by
confinement, is pending, that. by reason of existing combinations of influences in favor of the
accused ... a fair and impartial trial as between the accused and the State cannot be sc~fely and
~peedily had ... the judge shall hear proofin relation thereto, and if satisfied that such representation
is well-founded and that the ends of public justice will be subserved thereby) he shall order a change
of venue to any county in the judicial district in which such county is located or in an adjoining
district." (emphasi s added).
2. Art. 31.01 provides, in pertinent part, that this Court, on its own motion, and after notice and a
hearing may order venue changed to any county beyond an adjoining district if it is satisfied that a
fair and impartial trial cannot be had from any cause in the county in which the case is pending.
Apx.4
this Court to change venue on its own motion and would show as follows:
L EXECUTIVE SUMMARY: TEAM PAXTON'S ALMOST TWO-YEAR LONG

CRUSADE TO TAINT THE POOL OF PROSPECTIVE COLLIN COUNTY JURORS
"The opposition must understand the power of your client's

argulnent and what that will look like if your case goes to the jury.
An aggressive media strategy is vital to a campaign."
Former TealTI Paxton Investigator Wayne Dolcefino, www.dolcefino.com
The State of Texas cannot get a fair and impartial trial in Collin
County. Neither can the victims it represents. This issue is sin1ply not in
doubt.
Over the course of almost the last two years, as set out over these 57
pages, Paxton's posse of spokesmen, supporters, and surrogates - a clique
herein collectively referred to as "Team Paxton"a - has 81nbarked on a
crusade clearly calculated to taint the Collin County jury pool. Team
Paxton has utilized every conceivable form of mass media available -
radio, television, print, and social media, especially Facebook - to vilify,
malign, and defame the Special Prosecutors, the victiulS in the securities
fraud counts, Byron Cook and Joel Hochberg, and, to add insult to injury,
this Court. Team Paxton's 22-month siege against these principals has
3. To be clear, the State makes no claim that "Team Paxton" includes any members of Paxton's
defense team.
Apx.5
not merely been waged in the media, in the court of public opinion, and,
by importantly, in the hearts and minds of Collin County citizens who will
receive a jury summons in this case. Team Paxton's incessant efforts at
tainting the pool of prospective Collin County jurors unparalleled and
unprecedented in the annals of Texas criminal justice - include:
suing the Special Prosecutors - not once but twice - in their official
capacity on "behalf of the taxpayers of Collin County,))4 the very men
and WaHlen who will make up the venire from which a jury will be
chosen in these cases, for no other reason than to attempt to defund,
and ultimately, derail this prosecution as well as to inflalue the
passions, prejudices, and biases of the jury pool.
suing this Court in its unsupported and unsupportable ploy in civil

court to improperly and collaterally attack this Court's 1awfuI orders
to pay the Special Prosecutors, before opting to non-suit this Court.
accusing this Court of not merely "breaking the law" but "raping the
taxpayers [of Collin County]" by enforcing its lawful orders to fund
the Special Prosecutors. 5
4. Jeffory Blackard v. Attorney Pro Tern Kent A. Schqffer, in his official capacity, Attorney Pro Tern
Brian W Wice, in his official capacity, Attorney Pro Tern Nicole DeBorde, in her offiCial capacity,
e/ aI, trial court no. 380-05246-2015, "PLAINTIFf'S FIRST AMENDED ORIGINAL PElITlON," at 1. The
trial court's order di smissing this suit was affirmed by the Dallas Court of Appeals, - S. W.3d ~
,
2017 WL 343597, Tex.App. No. 05-16-00408~CV,January 18, 2017, no pet.), but refiled on January
20,2017. On January 27,2017, the trial court denied Blackard's request for a temporary restraining
order seeking to defund the Special Prosecutors. On January 30,2017, the Dallas Court of Appeals
issued a stay prohibiting Collin County Commissioner's Court from authorizing payment for the
second round of invoices submitted by the Special Prosecutors. In re Jeffory Blackard, No. 05~ 17 ~
00093-CV.
5. J.D. Miles, reporter for Dallas CBS affiliate KTVT, quoting Rick Santorul11, "Former U.S.
Senator Calls For Case Against Texas AG To Be Dropped," vvww.dfw.cbslocaLcom, Februal'y 4,
Apx.6
running a series of radio ads attacking Messrs. Cook and Hochberg
and the Special Prosecutors on WBAP-AM, a 50,000 watt clear
channel station that is the highest-rated station in the Metroplex. 6
the illegal leaking of confidential work prod nct of the Texas Rangers
by a Team Paxton "investigator" in violation of the Michael Morton
Act and this Court's order that discovery in these matters be
governed by the Morton Act. 7
releasing a four-minute long video on YouTube, posted to Paxton's

Facebook page, claiming that he is the victim of a political hit job
orchestrated by the Special Prosecutors at the behest of Byron Cook,
one of Paxton's political adversaries. 8
the Collin County legislative delegation conspiring to "intervene in

[Paxton's] legal woes by pressuring county leaders to cut funding for
the case" that Team Paxton has described in public forums as
"judicial tyranny" and "in contempt of court."9
Viewed against the backdrop of Team Paxton's pattern and practice
of attempting to taint the Collin County jury pool, and as explained in
greater detail below, these long-standing and well-settled legal precepts
compel the conclusion that this Court is constrained to change venue -
2017.
6. See in/i'a at 28-31.
7. See infra at 34-40
8. "I'm standing and fighting!," www.youtube.com.uploaded May 11,2016. See infra at 20-22.
9. McGaughey, "Collin County lawmakers wanted to intervene in Paxton's legal woes, text
messages show." www.dallasnews.com . October 20, 2016. See infra at 24-26. Predictably, Team
Paxton has failed to explain how this Court, indeed, any court, could be in contempt of itself.
Apx.7
either on the State's motion or on its own motion:
This Court has the inherent authority to order a change of venue

without regard to whether a jury can be seated in Collin County.l0
This Court has the inherent authority to order a chang'e of venue

without regard to Paxton's obvious, understandable, and tactical
desire to be tried in Collin County. II
If this Court changes venue on his own motion "from any cause," "[i]t
is difficult to envisage a state of facts by which [an appellate court]
would be warranted in finding that an abuse of discretion has
occurre d." 12
This Court need not elicit evidence to support its ruling changing
venue on its own motion and need only offer the parties a chance to
be heard on the matter. 1:l
This Court's decision to change venue on its own motion will be

upheld on appeal "notwithstanding the strong showing by [Paxton]
that a fair trial could be had in the county where the prosecution
was begun." 14
10. Allen v. Slate, 488 S. W.2d 460.461 (Tex.Crim.App. 1972)(rqjecting defendant's claim the trial
court was first required to make an attempt to select ajury before it could change venue on its own
motion).
11. Garza v. State, 974 S. W.2d 251 ~ 259-60 (Tex.App.- San Antonio 1998> pet. ref d) (defendant
has no state or federal constitutional right to be tried in his home county, and no interest in being
tried in his home county simply because he would preferred to be tried there).
12. Spriggs v. Slate, 289 S.W.2d 272,273 (Tex.Crim.App. 1956); Cook v. State, 667 S.W.2d 520,
523 (Tex.Crim.App. 1984)(quotingSpriggs with approval); Brimage v. State, 918 S.W.2d466, 508
(Tex.Crim.App. I 994)(op. on rehr'g)(quoting Spriggs with approval).
13. Brimage v. State, 918 S.W.2d at 508.
14. Spriggs v. Slale, 289 S.W.2d at 273
Apx.8
This Court's decision to change venue will be upheld on appeal if it
is satisfied "that a trial, alike fair and impartial to the state or the
accused, cannot be held in the county, without reference as to how
or fronl what facts and circumstances such conclusion was
reached. n15
Well over 130 years ago, the Court of Appeals of the State of Texas,
at that time the court of last resort in criminal cases, 16 wrote, "The law is
exceedingly jealous of the purity of the jury box, and always has been. It
seeks to shut up every avenue through which ... any inlproper influence,
could possibly make an approach to it." Pierson v. State, 18 Tex. App.
524, 559 (1885). Eight decades before this fundamental and guiding
precept was laid down, the United States Supreme Court 111ade it clear
that, "Certain implied powers must necessarily result to our Courts of
justice from the nature of their institution, [powers] which cannot be
dispensed with in a Court, because they are necessary to the exercise of
all others." United States v. Hudson, 7 Cranch 32, 34 (1812). As set out
below, given Team Paxton's deliberate, protracted, and far"reaching
attelnpts to taint the Collin County jury pool, the only way that this Court
15. Jd.; Berwickv. State, 194 S.W.2d 768, 770 (Tex.Crim.App. 1946)(same).
16. The Texas Court of Criminal Appeals was not created until the adoption of a constitutional
amendment on September 22, 1891. www.tarltonapps.law.utexas.edu.
Apx.9
can guarantee the purity of the jury box in this matter, and to ensure "the
impartiality [that] is the cornerstone of the fairness, security and
advantages of trial by jury,)) Pierson v. State, 18 Tex. App. at 559, is to
exercise its implied powers and inherent authority by changing venue on
the State's motion, or alternatively, on its own.
II. THE FACTUAL NARRATIVE THAT COMPELS A CHANGE OF VENUE
"Facts are stubborn things; and whatever may be our

wishes, our inclinations, or the dictates of our passions,
they cannot alter the state of the facts and evidence."
John Adams
1. Team Paxtons Prolonged Assault on the Motives,

Cha.racter, and Integrity oithe Special ProsecutoTs,
Victilns Byron Cook and Joel Hochberg and this Court
On April 21, 2015, Kent Schaffer and Brian Wice were appointed by
Collin County District Judge Scott Becker pursuant to TEX. CODE CRIM.
PRoe., art. 2.07, Hto serve as Collin County Criminal District Attorneys
Pl"O Tell1 in this nlatter for the purposes of assisting in the investigation
and, if warranted, the prosecution of Ken Paxton for the securities law
complaints currently under investigation by the Texas Rangers." In May
of 2015, their appointment was extended to encompass the investigation,
and, if warranted, the prosecution of Ken Paxton for any and all offenses
Apx.10
arising out of Ken Paxton's alleged violation of the Texas Securities Act." 17
Before the ink was dry on their appointment forms, indeed, well before a
Collin County grand jury indicted Paxton on first~degree felonies and one
third-degree felony, Team Paxton began what was, and what continues to
be, a non-stop assault on the motives, character, and integrity of the
Special Prosecutors. Utilizing television, radio, print media, and social
media, notably Facebook18 and YouTube, Team Paxton has accused the
Special Prosecutors of.
"n1aking a mockery" of our criminal justice system 19
having been "unlawfully appointed by Collin County District Judge

Scott Becker."20
"hijack[ing] the criminal justice system to use it as a political

weapon"21
runnIng up a tab "expected to reach into the millions" and
17. Nicole DeBorde was appointed as a third Attorney Pro Tem in August of 20 15.
18. Some particularly virulent Facebook by members of Team Paxton posts have likened the Special
Prosecutors to Satan, the evil-doer Haman in the Old Testament, and compared Paxton's prosecution
to the killing of Jesus. See e.g., n. 61, infra.
19. Former Team Paxton spokesperson, Anthony Holm, op~ed, Austin American Statesman, July
27,2015
20. Tony McDonald, general counsel for Team Paxton adjunct Empower Texans, ~'Feds: Paxton
Prosecutor is Motorcycle Gang Kingpin," www.emPQwertexans.com. January 5, 2017.
21. ld., "SEC dismissal latest evidence of bogus Paxton prosecution," October 7, 2016.
Apx.11
"clestroy[ing] a good mads life while ripping' off the [Collin County]
taxpayers22
being' "directly connected to very real crimes"23
"charging outrageous fees for a political vendetta that will outrage

the taxpayers of Collin County"24
being' ('loose~lipped, liberal Houston Delllocrat publicity hounds"25
orchestrating "a political hit-job [on Paxton] to inappropriately

influence the grand jury"2G
obtaining indictnlents that are "predetermined" and "spurious" and

an "enlbarrassment to the Texas criminal justice systenl"27
"mak[ing] direct contact with some of the jurors to lobby them to

indict Paxton 28
21. Jd. '''Win or lose, Schaffer and Wice stand to earn millions prosecuting Paxton if the Collin
County Commissioners Court agrees to pay them at the rate guaranteed by Becker,"
22. Id. McDonald, of course, offers no evidence that Wice, who is not connected to the Bandidos
litigation, has been "directly connected" to any crime, let alone "very real crimes."
23. Team Paxton supporter Jeffory Blackard, who has sued the Special Prosecutors "on behalfofthe
taxpayers of Collin County as recounted, inji-'a, quoted in the Dallas Morning News, April 29, 2016.
24. Holm, quoted in the Lubbock Avalanche Journal and Texas Tribune, July 29, 2015.
25. Holm, quoted in the Texas Tribune, July 2, 2015.
26. Team Paxton supporter, Midland oilman, and nominal chairman of the board for Empower
Texans, Tim Dunn, quoted in the Houston Chronicle, September 1, 2015.
27. Id. Of course, Dunn has never offered an iota of evidence to buttress his inane and libelous
claim ofcriminal wrongdoing 011 the Special Prosecutors' part. In reality, and unconstrained by what
he believes are "facts," Dunn was clearly unaware the attorney who allegedly made contact with
grand jurors was 'ry Clevenger, as the latter acknowledged in his blog. See www.Jawflog.com.
"Conflict of interest? The Collin County DA and the Texa<; Attorney General are in business
Apx.12
lacking experience to handle [Paxton's] high~profile prosecution29
hoping for a $2 million payday30
"fleecing the taxpayers of Collin County"31
"collecting ... over $300,000 ... over a bill expected to be in the

millions .. for a job that doesn't need doing."32
"building incredibly lucrative practices defending people charged

with crimes - including drug and sex crimes - who Paxton tries to
put in prison"33
built their careers defending the sort of child 1110lesters and Mexican
drug cartel leaders Paxton was elected to prosecute 34
"being the Geraldo Rivera of Houston"35
together, and their partnership may have diverted millions from taxpayers," March 23,2015; Id.,
"Bad news for Texas AG Ken Paxton: the grand jury has left the reservation," April 8,2015.
29. Holm op~ed, Austin American Statesman, July 27, 2015
30. Team Paxton propagandist Jon Cassidy, "Court may be bending rules for Paxton prosecutors,"
w'INw.watchdog.org., September 25, 2015.
31. Tanya Eiserer, reporter for Dallas ABC affiliate WF AA-TV, quoting Collin County Judge Keith
Self, January 7, 2016.
32. Radio ad airing on WBAP-AM, the highest-rated AM station in the Dallas-Ft. Worth media
market the week of November 1,2016, sponsored by watchdog.org., an organization fronted by
Dunn. See infra at 28-31.
33. Holm, quoted in the Lubbock Avalanche lournal and Texas Tribune, July 29, 2015.
34. ]d.
35. Holm op-ed, Austin American Statesman, July 27, 2015. In fairness to Mr. Schaffer and Ms.
DeBorde, this invective was directed at Attorney Pro Tem Wice.
10
Apx.13
continuing a prosecution that at least three other entities - the
Texas State Securities Board, the Travis County and Dallas County
District Attorneys' Offices - have thoroughly reviewed and each
chosen not to prosecute36
having a rock star's entourage, including a Texas Ranger37
billing for expenses some attorneys say are not legally valid38
wanting a blank check to support a politically-driven prosecution. 39
taking advantage of the taxpayers of Collin County 40
"work[ing]" with former Collin County District Judge Chris Gidner

"to procure [sic] first~degree felony indictments against Paxton"41
billing the taxpayers of Collin County for gold-plated justice 42
using their office to unlawfully commandeer the Texas Rangers with
36. Holm, quoted in the New York Times, July 2,2015.
37. Collin COW1ty Judge Keith Self's web site, www.keithsc1f.com. March 14,2016.
38. CBS Dallas affiliate KTVTNews II, January 7, 2016.
39. Statement of Collin County State Representative Jeff Leach, October 20,2016.
40. Dallas affiliate WFAA-TV, January 8, 2016, quoting Collin County Judge Keith Self
41. McDonald, "SEC dismissal latest evidence of bogus Paxton prosecution,

\vww.cmpowerlexans.com. October 7, 2016. While McDonald claims to be a "licensed and
practicing attorney," who was graduated from the University ofTcxas Law School in 2012, id., he
apparently slept through that portion of Texas Criminal Law & Procedure that indictments are
"procured" [sic] by grand juries and not prosecutors or judges. Moreover, McDonald's specious and
scurrilous allegation that the Special Prosecutors "worked" with Judge Oldner "to procure"
indictments against Paxton accuses them without proof of violating either/or 39.02 of the Penal
Code ("Abuse of Official Capacity") and 39.02 ("Official Oppression").
42. Collin County Judge Keith Self quoted in the Dallas Morning News, January 12,2016.
11
Apx.14
the naked and unrestrained abuse of that office to violate Texas
Penal Code, 39.02 ("Abuse of Official Capacity") and to intimidate
Jeffory Blackard, who has sued the Special Prosecutors, into
dropping his case. 43
Teanl Paxton has not been content to limit its 111ass-media driven ad
il0111inem attacks to the Special Prosecutors. A more sinister segment of
Team Paxton's effort to taint the pool of prospective Collin County jurors
is its well-planned and deliberate effort to vilify, 111align, and delTIOnize
Byron Cook and Joel Hochberg') the victinls in the securities fraud counts,
on radio and television, in the print media, in social media, and even in a
civil suit filed against them by Chip Loper, the man who is the trustee for
Paxton's blind trust. 44 Its ploy in tainting the pool of prospective jurors
also extends to Wayne Dolcefino, one of its now~cashiered "investigators"
engaging in manifestly bad-faith conduct constituting contempt of this
Court by illegally leaking the confidential work product of the Texas
Rangers in violation of the Michael Morton Act and this Court's order that
discovery in these matters be governed by the Morton Act.
And, of more recent vintage, in a predictable nlaneuver ripped from
43. "'"Abuse of power' alleged in Paxton case," www.watchdog.org, March 21, 2016.
44. Calco Land Development, L.L. C. v. Unity Resources, L.L. c., et aI., cause no. 417~04885-2016
(41 t h District Court of Collin County, Texas). See ll?lra at 31 ~34.
12
Apx.15
the play book of those who insist on attacking the referees, Team Paxton's
offensive has encompassed repeated assaults on the character, integrity,
and motives of this Court.45
And that is just the half of it.
In an unprecedented ploy without parallel in the annals of Texas
crilninaljustice, Jeffory Blackard, one of the most vocal and deeppocketed
menlbers of Team Paxton, has sued the Special Prosecutors - not just once
but twice - in a not~so-veiled attempt to de-fund this prosecution "on
behalf of the taxpayers of Collin County,"46 the ve.ry men and women who
make up the venire fl'om which a JUIY will be chosen in these cases. As a
result of Blackard's not-so-veiled declaration of war against the Special
Prosecutors, the Collin County Judge and four County Commissioners,
four Collin County state representatives and a state senator, have all
piled on. The goal of these combatants is clear: avail themselves of the
Dallas IVletroplex print and electronic media, as well as all forms of social
media, to irreparably taint the Collin County potential jury pool by
sending out the indelible and unmistakable message - long before jury
45. See p. 3, supra.
46. S'ee pp. 16-19, supra.
13
Apx.16
selection - that Messrs. Cook and Hochberg are nlen whose motives and,
by extension, credibility is suspect, and, as a coda to this vitriolic refrain,
the Special Prosecutors are the sworn enemies of every Collin County
taxpayer who Inight be called to serve as a juror in this matter.
2. Ken Paxton: Accused Felol1/Collin County's Favorite Son
Paxton is not the prototypical Collin County crinlinal defendant
being 111ade to stand trial for a trio of felonies: he is one of Collin County's
favorite sons. Paxton is the first statewide elected official from Collin
County since 1866. 47 Paxton has never lost an election, winning fifteen
different primary, runoff and general elections, nine contested and six
uncontested elections, over a twelve-year period. 48 Paxton served as a
state representative from District 70 from 2003 to 2013, as a state senator
from District 8 from 2013-2015, and as Texas Attorney General since
2014. 49 In the three-way Republican prinlary for Attorney General, Paxton
defeated Dan Branch and Barry Smitherlnan, winning 68% of the vote in
47. Brubaker, "Collin County GOP Update," www.rwgnLorg., November 11, 2014.
48. All of Paxton's election results are available on the official website of the Texas Secretary of
State. WWW.30$.stale.tx.us!elections!historicalli ndex. shtm I.
49. All references are from \.','ww.balIotpcciia.org.
14
Apx.17
Collin County; in the run-off, he bested Branch with 70% of the Collin
County vote; and in the general election, he beat Sam Houston with 66%
of the Collin County vote. In his unbeaten electoral streak, Paxton has
collectively garnered almost 600,000 votes from Collin County residents.
Moreover, and of equal importance, it is the conventional wisdom
that alnl0st every officeholder in Collin County has either contributed
money to Paxton, obtained their position - whether elected or appointed
~ with his assistance, or both. In short, Paxton is a political powerhouse
in Collin County where he enjoys the ultimate hOllle field advantage.
3. Paxton SOW8 the First Seeds of Conflict
Paxton fired the first salvo by filing his "Objection to Excessive or
Interim Payment of Fees to Attorneys Pro Tern" on December 28,2015,
likely the first time any criminal defendant has asked a judge to restrict
payment to the individuals tasked with prosecuting hin1. While this Court
quickly rejected his claim, Paxton nevertheless stoked public resentment
against the Special Prosecutors on grounds wholly unrelated to the merits
of this case, including his baseless accusations that:
There was a "secret deal by Collin County District Court Judge Scott
Becker to allow legal fee payments to the attorneys pro tenl [sid
that are far in excess of the rates and linlits established by Collin
15
Apx.18
County."
"Becker secretly agreed to pay the Attorneys Pro Teln $300.00 per
hour." (emphasis in original).
"Collin County has adopted and published a fee schedule in

accordance with this law and the ($300.00 per hour "reportedly
agreed upon by Judge Becker far exceeds the amounts in that fee
schedule, which is "without exception.,,50 (emphasis added)
4. Jeffory Blackard Files Suit Against the Special Prosecutors: Round 1
A mere twenty-four hours after Paxton fired the first shot, Tealn
Paxton political supporter, wealthy real estate developer J effory Blackard,
filed civil suit in Collin County District Court51 seeking a temporary
restraining order "on behalf of himself and all taxpayers in Collin County,
Texas." Not coincidentally, his suit parroted Paxton's baseless nlotion this
Court summarily rejected. Named as defendants were Collin County
Judge Keith Self, County Commissioners Chris Hill, Susan Fletcher,
Cheryl Williams, Duncan Webb, County Auditor Jess May, and this Court.
No doubt recognizing that suing this Court was, simply put, an ill" advised
and unsound stratagem, Blackard quickly non-suited this Court, and filed
50. Of co urse, as this Court correctly conel uded on January 6, 20 I 6, Paxton's asserti on that the fee
schedule provided "no exception" was cut from whole cloth and demonstrably false.
51. After the Collin County District judge to whom the case was assigned quickly recused himself,
the matter was transferred to Dallas County Judge Mark Greenberg.
16
Apx.19
an alnended lawsuit that named the Special Prosecutors, the trio of
protagonists he sought to demonize "on behalf of," but more ilnportantly,
in the hearts and minds of, "all taxpayers in Collin County."52
At the January 11, 2016 session of Comnlissioners Court, Blackard
made sure to allude to not one, but "two corrupt Collin County judges,"5:~
making the absurd claim that Judge Becker budgeted $2,000,000 to pay
the three Democratic Special Prosecutors from Houston who were in over
their heads. Blackard's wife also took the podium to rant about the "true
corruption" in CoHin County, lamenting it was outrageous that "millions
of dollars" were being spent, ostensibly by the Special Prosecutors, on this
"witch hunt."
Tellingly, but not surprisingly, Blackard's efforts at advancing the
narrative initially crafted by Paxton met with the same end as Paxton's
"objections"; Blackard's civil suit was promptly tossed. 54 But the damage
to the Special Prosecutors in the court of public opinion had already been
52. See n. 4, supra.
53. No doubt alluding to Judges Scott Becker and Chris Oldner whom Blackard erroneously referred
to as '''Oldham.'' This video is available at www.collincOlmtylex.!wv (Commissioners Court
Videos).
54. See J1. 4, supra.
17
Apx.20
done; Blackard"s unfounded avowals had already received widespread
play in the mainstream media and social media, including his laundry list
of unfounded and unwarranted accusations:
the Special Prosecutors have sought to unjustly, unfairly and

illegally enrich themselves at the expense of Collin County
taxpayers.
paying the Special Prosecutors "would constitute an illegal

expenditure of taxpayer funds."
"Why are Collin County taxpayers paying these unbelievable

amounts of ll10ney .. ' basically for this political witch hunt."
the Special Prosecutors have abused the powers of their office by

using the Texas Rangers to intimidate him into dropping his suit in
violation of Texas Penal Code, 39.02 ("Abuse of Official Capacity.").
because the Special Prosecutors' fees are "outrageous," "When Collin

County taxpayers find out the truth about how luuch they're
spending for a political vendetta, they're going to be outraged."
Having essentially declared war on the Special Prosecutors "on
behalf of all the taxpayers in Collin County," Blackard passed the baton
to his natural allies: Collin County Judge Keith Self and the four Collin
County Commissioners, in the hope they would turn up the heat against
the Special Prosecutors in the court of public opinion, and, by extension,
in the hearts and nlinds of prospective Collin County jurors. True to form,
they did not disappoint him.

18
Apx.21
5. All Politics is Local: Commissioners Court Has Paxton s Back
Because all politics is local, it logically follows that Team Paxton's
natural allies are Collin County Judge Keith Self and the four county
commissioners. 55 It took little or no time for Judge Self to open a second
front in Blackard's war on the Special Prosecutors, accusing them of:
"fleecing the taxpayers of Collin County,,,1)(j
billing the taxpayers of Collin County for "gold plated justice,"57 and
having a rock star's entourage, including a Texas Ranger. 58
After meeting in executive session of Commissioners Court on
January 11, 2016, Judge Self asked the Special Prosecutors to resign and
be replaced by a neighboring district attorney who would work for free,59
55. Public records reflect that Judge Self gave Paxton a total of$979 in 2003 and 2004 for his Texas
House campaign, and that Selfs campaign committee also gave Paxton $5,000 in his 2014 race for
attorney general. Their long-standing friendship dates back to Paxton and Self being teammates on
their high school basketball team. www.keithselfcom/testimonials. Commissioners Cheryl Williams
and Susan Fletcher each donated $250 to Paxton in November 2013. Lindell, "Collin County seeks
to cut fees for Ken Paxton prosecutol.s...www.statesman.com .. September 9, 2015.
56. Eiserer, quoting Collin County Judge Keith Self, January 7,2016.
57. Self, quoted in the Dallas Morning News, January 12,2016.
58. SeWs web site, March 14,2016.
59. Ironically, one of Commissioner Hill's Facebook friends pointed out how the movie Judge Self
\vanted to produce would end. "And as for the argument that this [case] could have gone to a
neighboring DA, no one would have touched it. Look at what has happened to those who did."
(emphasis added).
19
Apx.22
and an "expert" in securities fraud investigations, who just happened to
live down the street from him. Although Commissioners Court voted to
pay the Special Prosecutors' initial invoices, COlnmissioners Fletcher and
Hill, GO who have long railed against the Special Prosecutors' fees on their
Facebook pages - much to the adulation of their nlyriad followers and
potential jurors - voted against following this Court's lawful order.
6. Paxton Takes to You Tube to Tell SUPPoltel'S He is Being Framed
To no one's amazement, Paxton has unhesitatingly used social media
to spread his self-styled gospel to potential jurors in Collin County that he
is the victim of, in the words of Team Paxton's varsity, a political hit job
orchestrated by Special Prosecutors looking to pad their IRAs without
regard to truth, justice, or the American way.Gl On May 11, 2016, not
60. As Hill pointed out in a January 7, 2016 post. "Every taxpayer (i.e., potential juror) should take
notice" of the widely-accepted belief the Special Prosecutors were, in the words of Judge Self,
"fleecing the taxpayers of Collin County."
61. There is perhaps no more rabid a varsity cheerleader on Team Paxton, at least on social media,
than Michelle Smith, who identifies herself variously as Senior Executive Assistant" and "Politica1
Director" and "Fonner Outreach Director" to "Attorney General Paxton." In one of her more
memorable postings on October 7, 2016, at 6: 10 a.m., Smith posted a link to a Breitbrut article and
railed, '"I don't know how anyone can read this article, and not see this as a ... WITClIIIUNT! [sic].
'" Friends, remember when they wanted to kill Jesus, an innocent man? No judge wanted to clear
him, so they kept passing him from Judge to Judge because they knew he was INNOCENT! .. This
is political witchhunt [sic] motivated by power. [Paxton] knows God has appointed him for such a
time as this ... " She has continued her ad hominem rants against the Special Prosecutors with a more
recent posting to Team Paxton followers on January 5, 2017, that, "If you don)t see that these men
prosecuting General Paxton are evil men, you are blinded. Just saying. By the way, if you live in
20
Apx.23
coincidentally, on the eve of oral arguments before the en bane Dallas
Court of Appeals on his pre-trial writs of habeas corpus,G2 Paxton released
a four-minute long video on YouTube, posted to his FaceBook page, one he
brag'ged could not be fIltered by "by liberal reporters, spin doctors, and
political opponents," claiming:
"These charges are false and I will prevail against them in court.
The public will see for themselves that [the charges] are, at their
roots, politically motivated. It's not a coincidence that the chief
witness against me is a political adversary of mine."G3
Paxton's ploy came perilously close to violating this Court's long~
standing order that he, as wen as the lawyers on both sides, abide by Rule
3.07 of the Texas Disciplinary Rules of Professional Conduct prohibiting
the making of" an extrajudicial statement that a reasonable person would
Co1lin County, you are paying this guy thanks to Judge Scott Becker and three of your county
commissioners." Earlier that day, Smith excoriated both the Special Prosecutors and Judge Becker,
calling the former "bad guys from Houston ... horrible bad men" for whom Judge Becker is "100%
responsible" having made a "secret deal with these guys."
61. A mere four weeks later, the en bane court of appeals unanimously affirmed this Court's denial
of pre-trial habeas relief, a ruling the Court of Ctiminal Appeals declined to disturb. K'C parte
Paxton, 493 S.W.3d 292 (Tex.App.- Dallas 2016, pet. rcf'd)(en bane).
62. True to form, Paxton's assertion is, at best, half-true. In fact, his alleged "political adversary,"
fellow Republican State Representative Byron Cook, is but one of the two chief witnesses" against
him in the two first-degree securities fraud cases, with Joel Hochberg being the other. Moreover,
while Paxton asserts, as he must, that Cook is now his political adversary," he can run, but cannot
hide from the true nature of his relationship with Cook: when Paxton was first elected as a state
representative in 2003; even Paxton will concede Cook was a mentor.
21
Apx.24
expect to be disselninated by means of public communication if the lawyer
knows or reasonably should know that it will have a substantial likelihood
of Inaterially prejudicing' an adjudicatory proceeding." Regardless of
whether Paxton's stratagem violated Rule 3.07, his intent could not have
been 1110re clear: sending forth The Word to potential Collin County jurors
that he is a latterday Jean Valjean hounded by Special Prosecutors
channeling Inspector Javert in a 2pt Century version of Les Miserables.
7. Team Paxton Keeps the Heat on COlnlllissioners Court
Nine months later, after Blackard's civil suit was tossed by Judge
Greenberg, and Blackard's request for a telnporary restraining order was
jettisoned by the Dallas Court of Appeals, Blackard and other nlembers
of Teanl Paxton, were back before COlumissioner's Court to remind them
that they owed it to the taxpayers cum venire menlbers, to keep this
Court, and by extension, the Special Prosecutors ft'om holding them as
econonlic hostages. As reported by Breitbart Texas, on October 26,2016,
a nunlber of speakers, including Blackard and Hiralu Sasser~ Paxton's
former chief of staff, addressed the issue of whether the conlmissioners
should take steps to avoid complying with this Courfs lawful order setting
conlpensation for the Special Prosecutors. At this public session, Blackard

22
Apx.25
once again railed that the potential jury pool cOlnprised of Collin County
taxpayers "are absolutely irate" at what this Court has agreed to pay the
Special Prosecutors, and that they have every reason to question the
expenditure of "$900,000, or $2 million dollars of [the venire's} uloney, on
[Paxton's] failure to register."64 Other Inembers ofTealll Paxton urged the
commissioners "to contest [this] Court's order," described the Paxton
prosecution as "an obvious witch hunt," rehashed issues of allegedjudicial
misconduct this Court has already rejected, and urged their elected local
leaders not to "play into the hands of those [presuluably the Special
Prosecutors] who wish to destroy everything we [potential jurors] believe
in." One Collin County resident declared of this Court's payment order,
('the only people that think [the order] is a good idea, is [sic) [the Special
Prosecutors] and [this Court and Judge Becker] ... [e]veryone else thinks
it's a bad idea." Sasser led the anchor leg of the relay, describing the
Special Prosecutors' bills, (which Breitbart, parroting watchdog.org., wrote
without a shred of credible evidence, could run over two nlillion dollars),
64. Predictably, Blackard sought to minimize and denigrate the third-degree felony of failing to
register as an investment adviser representative leveled against Paxton, likening it, without regard
to the two first-degree securities fraud counts that carry a maximum punishment of life or 99 years
in prison, to "faiJ[ing] to get a driver's license that year."
23
Apx.26
as "outlandish," when "there was no reason to spend a penny" on this
prosecution.
When the dust had settled, the County Commissioners unanimously
adopted a resolution their constituents in the jury pool could be proud of.
They promised "a careful review" of this Court's future payment orders,
as well as appellate review to stay any such order by this Court by filing
a writ of mandamus in the Dallas Court of Appeals. But that was far from
the end of the discussion - at least for public consumption.
S. '(What can we do to move the ball toward tha t goal line Y'
But this resolution was apparently not enough for the political wing
of Team Paxton - the Collin County legislative delegation - who opted to
try to take matters into their own texting hands. On October 20, 2016,
four Collin County state representatives 65 and a state senator66 sent to the
statehouse in Austin by the very people comprising the jury pool "debated
intervening in Ken Paxton's legal woes by pressuring county leaders to cut
65. Jodie Laubenberg, Jeff Leach, Scott Sanford~ and Matt Shaheen.
66. Van Taylor
24
Apx.27
funding for the case,"67 funding Team Paxton has repeatedly described as
"judicial tyranny" and "in contempt of court." This series of text messages
included the following:
"We clearly want to help Ken." (Jodie Laubenberg).
"Basically we are daring Judge Gallagher to hold Collin County in

contelnpt of court if we are successful in convincing' Keith [Self] to
pay according to state law and not according to [Judge Gallage her's]
orders. Right?" (Scott Sanford).
"I'll ask Keith [Self] if they lowered the fees and discuss options to
stop [this Court's] payment." (Matt Shaheen).
"All of us agree (hopefully) on the end goal. Question is what can

we do to move the ball toward that goal line." (Jeff Leach).
Whether the Collin County legislative faction moved the ball into the
Red Zone, let alone scored, is unclear; what is-clear is that they were bent
and intent on "helping Ken" even while they "dared" this Court to "hold
Collin County in contempt" for disobeying its lawful order, and doing what
they could to defund the Special Prosecutors. But the heads of Collin
County government were still not done trying to defund and derail this
prosecution on behalf of Team Paxton, even if it meant running up their
66. McGaughey, "Collin County lawmakers wanted to intervene in Paxton's legal woes, text
messages show." www.dallasnews.com . October 20,2016.
25
Apx.28
own considerable legal tab in the process. On November 17, 2016, the
Tealll Paxton cabal that had declared war against the Special Prosecutors
"on behalf of all taxpayers of Collin County, Texas," took aim, but, true to
form, only nlanaged to claim an innocent bystander in the crossfire.
9. CollE-lteral Damage: Commissioners Vow ('to Stiff a Public Defender"
On November 17, 2016, Collin County Commissioners Court voted
3-2 to block payment to J. Matthew Goeller, a McKinney defense attorney
,'-.r ho has provided legal services to Collin County for over 20 years. fiR As
recounted by the Dallas Morning News:
In an attempt to lay the legal groundwork to quit funding

Texas Attorney General Ken Paxton's prosecution, Collin
County is refusing to pay [J. Matthew Goeller] a longtime local
attorney for his work in defending indigent clients ....
The comluissioners aren)t refusing to pay Goeller because he

didn't do his job. 69 They're doing so because they hope to set
the stage to refuse future payments to the three lawyers
prosecuting Paxton's fraud case.
68. McGaughey, "Collin County officials have new plan to avoid paying for Ken Pax ton's case: Stiff
a public defender." wwv.'.dallasncws.com., November 17,2016.
69. The Commissioners could not have picked a more competent, hard-working, and sympathetic
advocate to "stiff' to forward their own self-serving agenda. Goeller, "[0 Jnce a top North Texas
defense attorney in [Collin County)" is a veteran criminal lawyer board-certified in criminal law by
the Texas Board of Legal Specialization. "Goeller was recently in a bad car crash that's left him
with some memory loss [and is] now rebuilding his practice in part on cases like the one for which
the county [stiffed] him." Ironically, he is also a Republican precinct chair in Frisco, Texas. Id.
26
Apx.29
The decision means Collin County taxpayers could spend tens
of thousands of dollars to fight paying a man who did nothing
wrong; and whose job is unrelated to the attol'ney general or
hi9 legal trouble~ in the hopes of cutting off funding for
Paxton's prosecution. 70
County Judge Keith Self, who joined COlllluissioners Duncan vVebb
and Cheryl Williams, to supply the tie-breaking vote, channeled the irony
of their decision by declaring, "This looks like it's going to be one of those
ironic things that we may pay more per hour for an appellate lawyer than
we did for the special prosecutors."71 Without a County Attorney's Office
to carry the commissioners' water on appeal, Selfs prediction that Collin
County would have run up a bigger legal tab to stiff Goeller as part of the
county's plan to de~fund the Special Prosecutors was far from a long"shot:
it was a lock. But Selfs Doomsday scenario was averted when, within
days, the cOlnmissioners recognized what every fair~minded resident of
Collin County already knew: they'd made a huge mistake making Goeller
their test case to defund the Special Prosecutors.72
70. fd. (emphasis added).
71. Jd.
72. Judge Self claimed that their change of heart had nothing to do with the "slew of angry emails
from [the public] and friends and supporters of Goeller" but was instead the result oftheir beljefthat
"the case Goeller was defending didn't suit their purposes" of defunding the Special Prosecutors.
McGaughey, "Collin County abandons plan to stiffpublic defender caught in crossfire of Ken Paxton
27
Apx.30
10. The rvBAP-AM Ra.dio Spots Attacking
Byron Cook, Joel Hochberg; and the Special PI'osecutors
Watchdog.org is another adjunct of Team Paxton on the world"wide
web, a 501(c)(3) nonprofit 73 with close ties to Tim Dunn, a Midland oilman,
a noted Paxton supporter who guaranteed a mi1lion~dollar loan for him in
the darkest days of his 2014 runoff election against Dan Branch for
Attorney Genera1. 74 Dunn's Empower Texans PAC also gave Paxton a
$100,000 campaign contribution. 75
During the week of November 1, 2016, Watchdog.org sponsored a
radio ad that aired on WPAB-AM, the highest-rated radio station in the
Dallas-Fort Worth Metroplex, attacking Byron Cook and Joel Hochberg,
prosecution." \vww.dallasnews.com., November 28, 2016. Self's claim that "Goeller's background
and personal circumstances did not factor into their decision [to reverse course]," was, however,
seemingly belied by an email Commissioner Chris Hilt sent to County Administrator Bill Bilyeu
with the note, "We really are first class idiots." ld.
73. While it claims to be an organization dedicated to disrupt the prevailing political narrative ...
and challenge partisans of all political stripes," WVlW. watchdog.org/about/, even a casual search of
its we bsite ., s search engine with '~Paxton" keyed in readi ly reveals a treasure trove of stories that have
two major plot points in common. First, they are all penned by Jon Cassidy; second, they are all
designed to spread The Word to the faithful that Paxton is the victim of a political hit job
orchestrated by the Special Prosecutors, three criminal defense lawyers from Houston appointed and
paid in a sub silentio sweetheart deaJ, aided and abetted by Paxton's political foes, primarily State
Representative Byron Cook and Speaker of the House, Joe Strauss.
74. Jeffers, "Conservative group gets Ken Paxton? s campaign $1 mill ion loan,"
www.dallasnews.com ... May 20,2014.
75.Id.
28
Apx.31
the two victims in this case, as well as the Special Prosecutors. WEAP,
which bills itself as the most powerful radio station in Texas, broadcasts
as a Class A clear-channel non-directional station with 50,000 watts
enabling it to be heard not only in the Dallas-Fort Worth Metroplex, but
throughout north and central Texas, as far away as Austin and College
Station. 76 During the ratings period ending in November 01'2016, WEAP's
signal reached a total of 5,794,200 potential listeners. 77
The script of this first ad that aired on WBAP reads as follows:
I'm Chris Marrou78 with a paid message from Watchdog.org.
Should Collin County taxpayers be obliged to spend millions of

dollars prosecuting Attorney General Ken Paxton? The
count y 's answer c h ange d f rom " " t0 " may b e n w hen
yes
cOlnmissioners unanimously approved a resolution threatening
legal action over a bill expected to be in the millions.
Last month, a federal judge dismissed a fraud case against

Paxton after the Securities and Exchange Comlnission was
unable to identify any law he had broken. The state case is
even more vague. Prosecutors haven't come up with a single
lie or half-truth Paxton is supposed to have told But they're
76. www.wikipedia.org!wiki/WBAP_(AM).
77. www.ratings.radio.onlinc.com .
78. Mal'rOll was an news anchor at KENS-TV, the CBS affiliate in San Antonio. Marrou "was easily
San Antonio's biggest anchor star - you might even call him legendary. He presided over KENS'
news for 36 years and was known for high ratings ... " Jeanne Jakle, "Where are they now? Catching
up with S.A.'s ex-news stars," www.mysanantonio.com . January 29, 2014.
29
Apx.32
still pressing to convict him of defra uding investors.
Since Paxton's win in the federal case, the burden is on

prosecutors to prove they have something the SEC didn't.
Otherwise, the..yre just collecting thousands for a job that
doesn't need doing, one that has cost taxpayers over $300, 000
so far. For 1110re about the case, visit us at watchdog.org.
This message is paid for by Watchdog.org.
(emphasis added).
Watchdog.org then followed up this attack ad with a sequel that ran
during the week of December 5,2016, that reads as follows:
I'm Chris Marrou with a paid n18ssage frolll Watchdog.org.
Byron Cook, a powerful member of the Texas House, is being

sued by a former associate who is accusing a Cook company of
ripping hinl off for nearly a quarter of a Inillion dollars. Cook
and his partner are accused of securities fra ud. Ironically,
they were the source of a similar charge against Attorney
General, Ken Paxton.
The cases couldn't be more different. The Cook case, if the

allegations are true, is simple. According to the plaintiff,
Cook's COlnpany charged the plaintiff an extra quarter of a
million for oil property it lined up, pocketing the difference,
which the suit describes as "brazen securities Ira ud, deception,
and outright theft.~' Is Byron Cook a sharp dealeror is there
some other explanation? To find out, go to watchdog.org.
This message is paid for by Watchdog.org.
(emphasis added).
30
Apx.33
It does not take an expert in the fields of broadcast communications
or jury selection to see that these attack ads are designed to serve but one
purpose: to taint the potential jury pool in this proceeding, not only in
Collin County, but throughout North and Central Texas as well. That the
content of these attack ads violates the spirit and tenor of Rule 3.07, is at
once clear; that a link, whether direct or indirect exists between Team
Paxton and Watchdog.org, the purveyors of these attack ads, is equally
plain.
11. Caleo Land Developnlent v. UIlity Resource6~ et a1.:

'Teall1 Paxton Finds An otil er Avenue to Smear Cook and Hochbel"g
On November 4,2016, Calco Land Development, L.L.C., filed a civil
suit against Unity Resources, L.L.C., Mark Mersman, lVlark Solomon, Jr.,
Trade Rare, L.L.C., Byron Cook and Joel Hochberg in the 417th District
Court of Collin County, Texas. 79 In the words ofwatchdog.org. and Tealll
Paxton tub-thumper Jon Cassidy, Cook "is being sued by a former
business associate who is accusing a Cook company of ripping him offfor
nearly a quarter-million dollars."so In his guise as a legal analyst, Cassidy
79. Calco Land Development, L. L. C v. Unity Resources, L. L. c., et al., cause no. 417-04885-2016.
80. Cassidy, Texas Rep. Byron Cook sued over fraud claim," www.watchdog.org., November 21>
2016.
31
Apx.34
opined that the lawsuit accuses Cook of "securities fra ud ... ironically, the
same accusation that Cook made against [Paxton] ... however, unlike the
particular case against Paxton, which relies on a novel interpretation of
'fraud' that doesn't involve actual dishonesty, Cook is being accused of a
swindle."~31
Try as he Inight to paint Cook, and by extension, Hochberg, as latter-
day versions of Bernie Madoff in the minds of the Collin County jury pool
on the strength of his untested and unwarranted allegations, Cook and
Hochberg's lawyers have distilled this lawsuit to vvhat it. is really about:
[T]his lawsuit has very little to do with the facts of this case,
and everything to do witil an effort to smear and tarnish the
good name of Byron Cook and Joel Hochberg: Why is that?
Because Cook and Hochberg are key witnesses in the
upcolning criluinal trial against Attorney General Ken Paxton
... in Collin County. Due to the close ties of the principal of
Plaintiff in this case, Charles ("Chip") A. Loper ... to Paxton, it
would appeal' this case is nothing more than a vehicle to smear
Cook and Hochberg, to taint the Collin Coun~yjury pool for the
upcolning tria.l of Paxton for securities fra ud ... , and an
attempt to get discovery fron1 witnesses for which Paxton
cannot con1pel discovery in the crin1inal case. 82
81. Id.
82. Ca/co Land Development, L.L.C'. v. Unity Resources. L.L.C, et aI, ANSWER 1~2 (emphasis
added)(footnotes omitted); see also Patrick Svitek, www.texastribune.org, "In SEC case, Paxton
lawyers zero in on Byron Cook," December 14, 2016.
32
Apx.35
To those, including but not linlited to Team Paxton, who might think
that the filing of this lawsuit is coincidence, kismet, or happenstance, and
there is no connection, nexus, or link between Paxton and the Plaintiff,
Caleo Land Developll1ent, L.L.C.) and its principal, Charles ("Chip") A.
Loper, think again:
Loper is the trustee for Paxton's blind trust that was established to
hold Paxton's assets and investments when he took office. 83
Loper donated $20,000 to Paxton's legal defense fund. 84
Paxton sponsored and promoted Unity Resources and the individual

defendants and introduced them to Cook. 85
It was Paxton (along with another individual) who made the initial
introduction between Loper and Unity.86
Paxton was a member in, and 111anager for, Unity at the blue of the
transaction at issue, provided legal services to Unity, and did not
resign as a Inanager of Unity until August 22, 2014. 87
83. ld. at 2 (citation omitted).
84. [d. (citation omitted).
85.ld.
86.1d.
87. ld. 2-3. Accordingly, the defendants have moved to have Paxton "designated as a responsible
third party" under Chapter 33 of the Texas Civil Practice and Remedies Code. Calco Land
Development, L.L.c. v. Unify Resources, L.L.C, et aI, DEFENDANTS' MOTION TO DESIGNATE
RESPONSIBLE THfRD PARTY, 1-5.
33
Apx.36
The law firm that filed the lawsuit against Cook and Hochberg,
Scheef & Stone, is also co'counsel for Paxton in the pending SEC
action pending against him in federal court in the Eastern District
of Texas. 88
Caleo is suing a company and attempting to collect damages froin it

while its principal, Loper, serves as trustee for Paxton's trust that
holds a membership in that same company; Loper, as the trustee} is
attempting to cause harm to the beneficiaries of the very trust he
lnanages. 89
In other words, as aptly phrased by Cook and Hochberg's counsel,
"The ties between Plaintiffs principal [Loper] and Paxton are both wide
and deep.,,90 But the anti-Cook and Hochberg wing' of TealTI Paxton was
not done with its open and obvious ruse of trashing the victims of Paxton's
alleged securities fraud. Far fronl it.
12. Enter the Dragon: Tea1l1 Paxton Investigator rlVayne Dolcefino

Violates this Caul'ts Order by Leaking Confidential
Texas Ranger Work Product to a Team Paxton Propagandist
As part of its ongoing' ethical duty under TEX. CODE CRIM. PROe. Art.
39.14(a), the Michael Morton Act, the State was obligated to turn over to
Paxton's defense tealTI in pre -trial discovery, certain doculnents, evidence,
88. Jd. at 3.
89. Jd. (emphasis added).
90.Id.
34
Apx.37
and witness statements, including two audio-taped interviews conducted
by Texas Ranger Stacy McNeal, with, among others, Byron Cook and Joel
Hochberg. Art. 39.14(e) provides that:
Except as provided by Subsection (f), the defendant, the

attorney representing the defendant, or an investigator,
expert, consulting legal counsel, or other agent ofthe attorJ1ey
representing the defendant l11ay not disclose to a third party
any dOCUJ118J1ts, evidence, materials} or witness statelnents
received froIll the state under this article unless:
(1) a court orders the disclosure upon a showing of good

cause after notice and hearing after considering the security
and privacy interests of any victiln or witness; or
(2) the documents, evidence, 111aterials, or witness

statements have already been publicly disclosed.
(emphasis added), Althoug'h these prosecutions pre"date the advent of the
Michael Morton Act, this Court ordered the parties, and the parties have
agreed, to conduct discovery under the Michael Morton Act.
On December 20,2016, Jon Cassidy, a blogger for the Texas Bureau
ofWatchdog.org, and one of Team Paxton's most vocal and reliable flacks,
posted an entry titled, "TEXAS RANGER FILES: PAXTON CASE BASED ON AN
ASSUMPTION." His post repeatedly quoted from "investigatory records of
the Texas Rangers" and "the Rangers' reports" "obtained by
Watchdog.org." of audio~taped interviews with Cook and Hochberg, and

35
Apx.38
referred to Ranger McNeal by name. Cassidy stated in his blog post that:
"The Rangers interviewed three other investors that Paxton

introduced to Servergy, and two other potential investors who
decided not to put up any money ... ')
Based on Ranger McNeal's report, "It becomes clear why the SECfH
doesn't have any other witnesses it can turn to."
Ranger McNeal's reports cast doubt on the legitimacy of the SEC's

investigation and pending action against Paxton~ because Ranger
McNeal's reports "are casting doubt on the new story" put forth by
the SEC.
"What [Cook and Hochberg] told the Rangers .. , contradicts the

SEC's new line of attack."
Predictably, Cassidy also lnade sure to continue his penchant for
trashing the Special Prosecutors, asserting in his blog post that:
"In July [2015], two wen-paid special prosecutors and a judge 92 who
later recused himself got Paxton indicted93 on state criminal
91. The Securities and Exchange Commission filed securities fraud civil charges against Paxton on
April 11,2016 for allegedly recruiting investors for Servel'gy while hiding the fact that he was being
compensated to promote the company's stock. While a federal judge overseeing the case dismissed
the SEC'} s complaint without prejudice on October 10,2016, the SEC refiled an amended complaint
against Paxton on October 21, 2016. That amended suit remains pending.
92. The Honorable Chris Oldner. former judge of the 416 1h Judicial District Court of Collin County,
Texas. While Paxton loudly contended that Judge Oldner's alleged misconduct in assembling and
empaneling the grand jury that indicted Paxton vitiated the legitimacy of the latter's trio of
indictments, the en bane Dallas Court of Appeals did not linger long in rejecting his complaint. Ex
parte Paxton, 493 S.W.3d at 297~301.
93. Cassidy's unsupported and unsupportable allegation betrays a stunning lack of knowledge about
the criminaljustice system that anyone who squeaked through high school civics class would readily
recognize: trial judges and prosecutors do not indict defendants; grandjurors do. See TEX. CODE.
36
Apx.39
charges. "
"Still, even with Cook and Hochberg, those special prosecutors are
going to have to earn the $1 million-plus they're making ... "94
That day, the Special Prosecutors ilnmediately sought to determine
who was responsible for leaking this highly sensitive, restricted, and
confidential material to Cassidy_ The next clay, one of Paxton's lawyers
contacted the Special Prosecutors and admitted Cassidy was given Ranger
McNeal's reports and interviews by Dolcefino,9G an investigator Paxton
hired. Dolcefinds conduct in leaking Ranger McNeal's sensitive, restricted,
and confidential interviews and reports to Cassidy violated this Court's
standing order and agreement of the parties that the discovery in these
matters would be conducted under the Michael Morton Act, as well as Art.
39.14(e) of the Code of Criminal Procedure. Moreover, his conduct also
flew in the face of a legion of Attorney General Opinions authored by
CRITvl. PROC. arts. 20.19 & 20.21.
94. Cassidy has also accused the Special Prosecutors of "hoping for a $2 million payday." "Court
may be bending rules for Paxton prosecutors," www.watchdoQ.org., September 25,2015.
95. In reality, Dolcefino's forte is not so much investigation as it is opposition research, the art of
which, as he proudly refers to it on his website, of "digging up dirt." Dolcefino boasts on his web
site that he "knows how to dig ... and what to dig for. Wouldn't you want him on you side?"
VI:'Wvv'.dolccfino.com.
37
Apx.40
Paxton's office !J6 that offense reports and related work product of law
enforcement in a pending criminal investigation or crinlinal prosecution
are confidential and privileged and not subject to disclosure under TEX.
GOV'T. CODE 552.108(a)(1),97 the Texas Public Inforlnation Act.
Dolcefino's conduct in leaking Ranger McNeal's highly sensitive,
restricted, and confidential material to Cassidy could not have been lnore
clear. As Dolcefino himself boasts on his web site:
"The opposition must understand the power of your client's

argument and what that will look like if your case goes to a jury."
"Opposition Research is just part of the menu at Dolcefino

Consulting.... An aggressive media strategy is vital to a campaign."
Dolcefino knew fun well that Cassidy was a Team Paxton partisan,
pa tron and most of all, propagandist who could be counted on to inflict the
latest insult and injury in Team Paxton's ongoing gambit of inflicting
death by a thousand cuts to the character and reputation of Cook,
96. See e.g, Attorney General Opinion No. 577523. This opinion, dated July 6, 2015, was in
response to the request of Tan'ant County Assistant District Attomey Ashley Fourt, who sought
Paxton's office's opinion on whether her office was obligated to release an autopsy report in a
pending criminal matter. Paxton concluded that this material could be withheld from public
disclosure pursuant to 552.1 08(a)(1). Paxton's office issues such boilerplate rulings on a weekly
basis.
97. '"Information held by a law enforcement agency or prosecutor that deals with the detection,
investigation, or prosecution of crime is excepted from the requirements of [this section] if: release
of the infOlmation would interfere with the detection, investigation, or prosecution of crime ... "
38
Apx.41
Hochberg, the Special Prosecutors, and the Rangers.98 That Dolcefino
would knowingly engage in manifestly bad-faith conduct9 !) contempt of
court by violating an order of this Court 100 and aiding and abetting
Cassidy in demeaning and defaming the character, reputation and
credibility of the victims in this case is not merely contumacious,101 it is
unconscionable. And, tellingly, as part of Team Paxton's mission to
irreparably taint the pool of prospective Collin County jurors in advance
of trial, Team Paxton financial angel Tinl Dunn did not hesitate to link
Cassidy's blog post to his Facebook page on December 21,2016. Dunn also
98. That Cassidy's anti-Cook, anti-Hochberg, anti-Rangers, and anti-Special Prosecutors screed has
been publicly disseminated in social media and beyond is perhaps best fortified by a Facebook post
from trusted Team Paxton lieutenant Michelle Smith. See n. 61, supra. In a December 20, 2016,
Facebook post, Smith trumpeted Cassidy's blog post constructed on the Do1cefino '5 contumacious
conduct to her almost 1,900 foHowers and untold others as a "BREAKING NEWS ALERT! ... the
news scoop of the year ... [a] blockbuster news story [that] points the finger at State Rep. Byron
Cook as the CUlprit for the political persecution of [Paxton]. ... More chickens coming home to
roost." Smith invites her followers ~ who are only too happy to do so - to "share" this story with
all of their Facebook friends and Team Paxton faithful.
99. "Bad faith" is defined in Texas as a "conscious doing ofa wrong for a dishonest, discriminatory,
or malicious purpose." Stites v. Gillum, 872 S.W.2d 786, 795 (Tex.App.- Fort Worth 1994, writ
den'd). Simply put, Dolcefino's misconduct falls squarely within this definition.
100. In re Escareno, 297 S. W.3d 288, 292 (Tex.Crim.App. 2009)("Thc power to punish for
contempt of court when a party fails or refuses to obey a prior court order or decree is 'an inherent
power of a court and is an essential element of judicial independence and authority. "').
10 1. Ex parte Norton, 191 S. W.2d 713) 714 (Tex. 1946)CGenerally speaking, he whose conduct
tends to bring the authority and administration ofthe law into disrespect or disregard, interferes with
or prejudices parties or their witnesses during litigation, or otherwise tends to impede, embarrass,
or obstruct the court in discharge of its duties is guilty of contempt.").
39
Apx.42
directed the faithful to read an article by Empower Texans flack and
Team Paxton publicist Tony McDonald. McDonald rails that, "Taxpayers
[i.e., potential jurors} in Collin County should be demanding that their
leaders end the corrupt travesty of the criminal justice system that is the
Paxton criminal prosecution." 102 (emphasis in original).
13. Blackard's War Against the Special Prosecutors: the Sequel
Less than 48 hours after the dismissal of his initial lawsuit against
the Special Prosecutors on "behalf of the taxpayers of Collin County" was
affirnled by a unanimous panel of the Fifth Court of Appeals, Blackard
was back at it. Although Blackard's transparent and unavailing attempt
to turn the pote ntial jury pool against the Special Prosecutors had already
cost Collin County some $106,000 in attorneys fees and court costs, 103 he
filed another petition and application for a temporary restraining order
("TRO"), rehashing all of the patently frivolous allegations set out in his
102. In linking the faithful to McDonald's rant, Dunn uses the Paxton prosecution as an example of,
"J fa DA hates you and lies to a grand jury to get you indicted, there is no legal remedy in judicial
[sicJ appeal."
103. McGaughey, "Ken Paxton donor sues CoIJin County over prosecution's price tag ... again,"
Dallas Morning News, January 20,2017.
40
Apx.43
initial lawsuit. 104 Even a cursory review of this docunlent reveals that the
allegations it recycles against the Special Prosecutors and this Court,
achieve no additional cachet from their mere rote repetition. To no one's
surprise, this repackaging of the original script into a hollow excuse for a
sequel was not lost on Judge Greenberg; on January 27, 2017, one week
after this tired tOlne was filed, Judge Greenberg denied Blackard's request
for a TRO. L05
14. Tealfl Paxton's MOTe Recent Personal Attacks on Byron Cook
vVith jury selection in these lnatters fast approaching, Empower
Texans and Team Paxton propagandist, Tony McDonald, has stepped up
his personal attacks against Byron Cook on social media. In a recent blog
post on the Empower Texans web site, McDonald accused Cook of hiring
a fellow state legislator, Rep. Rene Oliveira of Brownsville, to "purchase
[Oliveira's] legislative privilege so it can be used to shield Hochberg and
lOJ . .IefJory Blackard v. Allorney Pro Tern Kent A. Schafler, in his C?fficial capacity, Allorney Pro
Tern Brian W Wice, in his official capacity, Attorney Pro Tem Nicole DeBorde, in her official
capacity, et aI, 380th District Court, trial court no. 380-00320-2017 "PLAINTIFF'S VERIFIED FIRST
AMENDED ORIGINAL PETITION AND ApPLlCA TION FOR TEMPORARY RESTRAINING ORDER," at I. See
11.4, supra.
104. On January 30, 2017, the Fifth Court of Appeals issued a stay in the proceedings, temporarily
precluding Collin County Commissioners Court from authorizing payment on the second round of
bills submitted by the Special Prosecutors. In re JeffrJry Blackard, No. 05-17-00093-CV.
41
Apx.44
others from having to give testimony that could be beneficial to Paxton in
the crilninal prosecution and SEC cases." www.elllpowertexans.c0111, "Cook
teams with Democrat to avoid testimony in Paxton lllatter," January 20,
2017. This ad bOJnineln screed effectively accuses Cook of committing the
second-degree felony of bribery. See TEX. PENAL CODE, 36.02(a)(1). Just
days later, McDonald's EUlpower Texans blog post asked if Cook "will be
forced to plead the Fifth in order to protect himself in his own trial?" "Will
Cook plead the Fifth?" www.enlpOWel'texans.coln, January 24, 2017. <all
emphasis in original). He accused Cook of "walking [his] allegations back,
apparently out of fear that Cook will snare [sic] himself with his own
lies." Id.
15. The Prelude to Collin County Commissioners Court Convening
As soon as the ink was dry on the January 30, 2017 agenda of Collin
County Comnlissioners Court at which the paYlnent of the second round
of invoices submitted by the Special Prosecutors was to be voted upon,
Team Paxton's social media apparatus w as working overtime. On January
27, 2017, Team Paxton soldier, Brian Newman, extended a Facebook
invitation to almost 100 of his Facebook friends urging theln to JOIN US:
The moment we have been waiting for has arrived. We have

42
Apx.45
the legal right to challenge this illegal bilL Encourage our
elected Commissioners to [sic] Refuse this massive paYlnent
for an immoral prosecution of a great man, Texas Attorney
General Ken Paxton.
A judge from Fort Worth has, regretfully, authorized fees for

the prosecuting attorneys that would bankrupt a smaller
county. How do we fund prosecutions? NOT THIS WAY.
Commissioners, let's get the legal analysis frOln that [Fort
Worth] Judge. DON'T PAY THE BILL.
See you Monday at the Commissioners Court. 1:30 p.m.
Appended to Newman's call to arms was an invitation instructing
Paxton's minions to come to Commissioners Court on January 30,2017,
to "DEFEND KEN PAXTON & STOP BYRON COOK." Newman's entreaty was
joined by Team Paxton cheerleader Michelle Smith, who took the time to
once again trash Byron Cook. "Based on Byron Cook's lies," she railed,
"Collin County tax payers are having to pay what could be in the millions
for his witch hunt against General Paxton."106 Newman followed up with
a Facebook post on January 30, urging all "Collin and Tarrant County
Resident's [sid" to come to Commissioners Court and 'ifill up this room."
Not surprisingly, Team Paxton answered the calL
106. Smitll prayed that "each person tagged on this post will share this ... "
43
Apx.46
16. Team Paxton Fills the House at Commissioners Court
As seen on the videotape of the January 30 meeting of Collin County
Commissioners COurt,107 the room full of potential Collin County jurors
burst into applause when County Judge Keith Self noted that the Dallas
Court of Appeals had granted a temporary stay.1OS While those present no
longer had to fear that Commissioner Court would authorize paYlllent of
the Special Prosecutors' second round of invoices, that did not keep a
dozen or more of them from demanding that this round of bills not be paid.
A cavalcade of potential jurors approached the podium and, in the three
luinutes afforded to them, told Commissioners Court:
Priva te investigators had found that this political witchhunt against

General Paxton, budgeted for over $2,000,000 by Judge Becker and
run by celebrity attorneys from Houston, had exposed Judge Oldner
and his wife. (Jeff Blackard).
This out of control attempt by the Special Prosecutors to "dethrone

General Paxton" was being led by defense attorneys with a political
agenda and who were on a scale with the lawyers who represented
O.J. Simpson. 109 (Linda Blackard).
107. This video is available at WVv-w.collincOlmtytex.gov (Commissioners Court Videos).
108. As Team Paxton member Suzanne Blackstone trumpeted on her Facebook page on January
30,2017, "The citizens packed the courtroom today! When Judge Self read the Court's order of
a 'stay' for payment, the audience erupted with applause!"
109. In galaxy far, far away, this might have passed as a compliment. Given the tenor and context
of Ms. Blackard's rejoinder, nothing could be further from the truth.
44
Apx.47
Jesus Christ would not want to see a man like General Paxton, who
had done no harm and no wrong, prosecuted and would certainly not
want to see the Special Prosecutors get paid. (J.D. Lee).
Because this witch hunt and the Special Prosecutors' request to be

paid was reminiscent of King Solomon and the two harlots and
stunk to high heaven, Commissioners Court needed to draw their
swords against the Special Prosecutors, one of whOln also stunk to
high heaven and whose boldness was offensive. (Brian Newman).
Those individuals objecting to this Court's order to pay the Special

Prosecutors, conduct evincing its willingness to spend Collin County
money, should be able to vote him out of office but cannot "because
we can't get to him" even though the citizens of Tarrant County who
elected this Court "don't give a rip about what he spends of our [sic]
money," (Mike Giles).
The Commissioners were obligated to go to jail before agreeing to

pay the invoices submitted by the Special Prosecutors because "our
way of life" was "under attack in Collin County," (Ms. Richardson),
In the face of this temporary stay, Team Paxton could not help but
take a victory lap and doing what they do best: piling on. In a February
1,2017 Facebook post, Team Paxton's Michelle Smith linked a blog post
written by Empower Texans publicist Tony McDonald about Kent
Schaffer, 110 sharing it with almost one hundred of her Facebook friends. 111
110. "Paxton Prosecutor Disqualified from Motorcycle Gang Case." Predictably, Smith vilifies and
demonizes Schaffer for defending the Bandidos - "This is the kind of man Judge Scott Becker
picked to use Collin County tax money to go after a [sic] innocent man and his beautiful family."
Equally predictable is her penchant for relying on ruternative facts. While Schaffer was disqualified,
it was not, as Smith avowed, because he was "an urundicted coconspirator in the Bandidos
organization." As the Magistrate Judge found, because two of his former clients were cooperating
45
Apx.48
While taking aim at Schaffer, she also delivered another rabbit punch at
Byron Cook, ranting that, "These political witch hunts MUST STOP!!!
Bryon [sic] Cook needs to be exposed for what he has done. Prayers
appreciated for full exposure of ALL the wrong involved in this."
(emphasis in original).
17. Longstanding Team Paxton Disciple Rick SantoTuHl

Trashes BYTon Cook, Kent SchaffeI~ and tbir:; Court
The most recent, indeed, lnost egregious attelnpt by Team Paxton to
taint the pool of prospective jurors was staged by Rick Santorunl, one of
its veteran menlbers, former U.S. Senator and presidential candidate, and
confidant of Paxton and Blackard. 112 In a February 4, 2017 interview with
with prosecutors, "the continued representation by Mr. Schaffer ... presents either an actual conflict
of interest, or a serious potential conflict of interest. " Contreras, "Feds take out Bandidos lawyers,"
www.chron.col11, February 1,2017. This Court knows what Smith does not - that a lawyer has been
disqualified because of a conflict of interest does not mean that he or she has acted unethically.
111. This list included Paxton, his wife, several of the County Commissioners, and several of the
state legislators who conspired via text to "helping Ken" even while they dared" this Coul1 to "hold
Collin County in contempt" for disobeying its lawful order, and doing what they could to defund the
Special Prosecutors. See pp. 24-26, supra. Clearly, the exponential effect of Smith's post and the
number of her Facebook friends who shared it with their friends and so on is incalculable.
112. www.Youtube.com . "Rick Santorum Joins Team Paxton!" August 19,2013. A close friend
of Paxton who attended his investiture as a state senator, Santorum has long vented in the media that
this is "another political prosecution." Jeffers, "GOP presidential contender Rick SantorulU says
indictment against Texas AG Ken Paxton politically motivated." www.dallasnews.com .. October
12,2015. Santorum is also good friends with Jeffory Blackard, as a review of the latter's Facebook
page reveals. See also Jones, '''I was half wrong about Rick Santomm, www.daHasnews.col11.,
FebruaJY 10, 2012 ("Impressed, Blackard decided to bring Santorum to the Dallas area and open
46
Apx.49
reporter J.D. Miles broadcast on KTVT-TV, the CBS affiliate in the
Dallas- Fort Worth area, Santo rum achieved a rare triple double, trashing
Messrs. Schaffer and Cook, and this Court. Santo rUIn described this case
as ((the worst [example]" of u a pure political vendetta," a "lniscarriage of
justice," and a "witchhunt being funded by [Collin County] taxpayers" and
called for the prosecution against Paxton to be dropped."1l3 And that was
just for openers.
Prefacing his screed with his ironic disclainler that '(you can't make
this stuff up," Santorum nevertheless went on to "make ... stuff upn by:
accusing Cook of being a member of the "cabal" that has handed over
control of the Texas Legislature to Democrats and other members of
the Republican Party.114
repeatedly labeling Cook as someone who has been sued for fraud
and has "changed his story" about Paxton.Hi)
accusing this Court of not merely "breaking the law" but "raping the
taxpayers [of Collin County]" by enforcing its lawful orders to fund
doors for him here."}. In an October 16, 2012 e-mail the State will produce, Paxton aide Ben
Williams invited Bill Mapp, former Servergy honcho, to a Paxton fundraiser featuring Santorum.
] 13. J.D. Miles, reporter for Dallas CBS affiliate KTVT, quoting Rick Santorum, "Former U.S.
Senator Calls For Case Against Texas AG To Be Dropped," www.dfw.cbslocaLcom~ February 4,
2017.
114. Id.
] 15. Id.
47
Apx.50
the Special Prosecutors. 116
accusing Schaffer of being "an unindicted cOkconspirator of a drug'

gang. 117 .
These latest public and unmistakable pronouncements, not Inerely
by a representative cross~sample of Collin County potential jurors taking
time out of their day to speak out at Commissioners Court against paying
the Special Prosecutors, but by Team Paxton's Facebook army, is the
latest chapter in their almost two~year long public relations blitz to taint
the Collin County jury pool by poisoning it against the State, its victinls,
and even this Court. llS This coordinated, sustained, and knowingly false
narrative put forth by Team Paxton persists to this very day, and, as set
116. ld.
117. ld. As set out above, the only reason Santorum, or any other member of Team Paxton, would
continue to make this baseless allegation, one that was not sustained by the federal magistrate judge,
is to assassinate Mr. Schaffer's character and to paint him, albeit without foundation, as the ultimate
unethical and unscrupulous criminal lawyer and all-around bad guy in the hearts and minds of Collin
County jurors.
118. Team Paxton's ongoing efforts a1 defaming and deprecating this Court to taint the jury pool
is itself a compelling basis for changing venue on this Court's own motion. It is precisely because
"'under any system ofjury trials the influence of the trial judge on the jury is necessarily and properly
of great weight. .. ," Starr v. United States, 153 U.S. 614, 626 (1894), that potential jurors will be
open, honest, and forthcoming with the Court - whom they view as the ultimate unbiased authority
figure - about their ability to be fair and impartial in this case. But Teanl Paxton's ploy in painting
this Court as a "law-breaking" figure "raping the taxpayers" and enforcing its "unlawful orders" with
the "judicial tyranny" of threatening to lock up the members of Commissioners Court has reduced
it to just another cast member in this "miscarriage of justice," irreparably damaging this Courfs
ability to preside over jury selection, certainly in Collin County, and probably the Dallas Metroplex.
48
Apx.51
out below, compels this Court) as a matter of law, to order a change venue
fronl Collin County.
III. ARGUMENT AND AUTHORITIES
1. Tile Standard of Review Governing ()hang-es of Venue
This Court's ruling changing venue on the State's lllotion or its own
nlotion cannot be reversed unless it is an abuse of discretion. B.ri1nage v.
State, 918 S.W.2d 466,508 (Tex.Crinl.App. 1994)(op. on rehr'g). A ruling
is not an abuse of discretion so long as it is not arbitrary or unreasonable,
State v. Mechler, 153 S.W.3d 435,439 (Tex.C:rinl.App. 2005), or"so clearly
wrong as to lie outside the zone within which reasonable persons might
disagree." jf([cDonald v. State, 911 S.W.2d 798, 800 (Tex.App.- San
Antonio 1995) pet. dislll'd). This Court does not abuse its discretion just
because an appellate court would have decided this issue differently. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.
1985)("The mere fact that a trial judge may decide a matter within his
discretionary authority in a different lllanner than an appellate judge in
a similar circumstance does not demonstrate that an abuse of discretion
has occurred."). This Court's ruling changing venue on motion of the State
or on its own motion will be upheld if correct on any theory of law

49
Apx.52
applicable to the case. Parks v. State, 330 S.W.3d 675, 679 (Tex.App.-
San Antonio 2010, pet refd). Viewed through this deferential lens,
controlling authority buttresses the conclusion that this Court's ruling
changing venue, either on the State's motion or on its own Illotion, is
virtually unassailable on appeal.
2. Art. 31.02 Changing Venue on the State's Motion
While there is a dearth of authority interpreting art. 31.02,119
common sense and political reality suggest why. In a typical criminal
prosecution, the elected District Attorney or County Attorney would
instinctively and understandably be reticent about filing a motion to
change venue because such a request is necessarily grounded in the notion
that the very people who elected him or her could not be trusted to give
the prosecution a fair shot. Of course, that dynamic is hardly in play in
the case at bar; indeed, just the opposite is true. The defendant is an
exceedingly popular local hero, with an electoral record of 15-0 and almost
600,000 votes garnered in the process; the Special Prosecutors) as noted
above, have been repeatedly and convincingly portrayed as partisan hit-
119. See n. I, supra.
50
Apx.53
men from Houston who are literally at war with the taxpayers of Collin
County, who have not elected them to any post, office, or position.
But one of the few cases interpreting art. 31.02, Garza v. State, 974
S.W.2d 251 (Tex.App.- San Antonio 1998, pet. ref'd\ is perhaps the most
instructive. In Garza, the trial court granted the State's nlotion to change
venue without notice or a hearing and where the State adduced no proof
in support of its motion. The court of appeals affirmed, holding that the
defendant bas no state or federal constitutional right to be tried in his
hOlne COUJ1ty, and, moreover, has no tactical interest in being tried in his
hOlne county simply because he would preferred to be tried there. Id. at
259&260 (emphasis added). On the record before this Court, the holding in
Garza buttresses the conclusions that the State is entitled to a change of
venue, and that such a ruling would not be disturbed on appeaL
3. Art. 31.01: Changing Venue on the Court's Own Motion
TEX. CODE CRIM. PROC. Art. 31.01 120 provides that the Court, on its
own motion, and after notice and a hearing, may order venue chang'ed to
any county beyond an adjoining district if it is satisfied that a fair and
120. See 11.2, supra.
51
Apx.54
impartial trial cannot be had from any cause in the county in which the
case is pending. The body of case law affording this Court with the
inherent discretion to change venue on its own motion makes its task in
doing so clear, and the conclusion that its ruling would not be disturbed
on appeal equally plain.
At the outset) while it is generally considered an article of faith in
the criminal justice system that this Court is not free to change venue on
its own motion unless and until it has attempted, albeit unsuccessfully, to
select a jury in Collin County, the Court of Criminal Appeals squarely
rej ected this urban and legal lege nd in Allen v. Sta te, 488 S. W. 2d 460, 461
(Tex. Crim.App. 1972)(rejecting defendant's argument that trial court was
first required to Inake an attelnpt to select a jury before it could change
venue on its own motion). Indeed the Court of Criminal Appeals has
l
repeatedly stated that, where the trial court changes venue on his own
motion "froln any cause," "[i]t is difficult to envisage a state of facts by
which [an appellate court] would be warranted in finding that an abuse
of discretion has occurred.') Spriggs v. State, 289 S.W.2d 272, 273
(Tex.CrilTI.App. 1956); Cook v. State, 667 S.W.2d 520, 523 (Tex.Criln.App.
1984)(quoting Spriggs with approval); Brimage v. State? 918 S.W.2d 466,

52
Apx.55
508 (Tex.Crilu.App. 1994)(op. on rehr'g)(quoting Spriggs with approval).
Finally, the Court of Criminal Appeals has long held that Art. 31.01 vests
this Court with virtually unlimited judicial discretion to change venue on
its own nlotion, provided it complies with this article. See e.g:~ Spriggs v.
State, 289 S.W.2cl at 273 (upholding trial court's decision to change venue
on its own motion "notwithstanding the strong showing by appellant that
a fair trial could be had in the county where the prosecution was begun.");
Cook v. State, 667 S.W.2d at 522-23 ("The court is authorized to change
the venue of any case ... when he has satisfied hilnself that a trial, alike
fair and impartial to the state or the accused, cannot be held in the
coun ty, witholl t refeTence as to how or from wha t facts and circumstances
such conclusion lFBS reached." (emphasis added); Berwick v. State, 194
S.W.2d 768, 770 (Tex.Crilu.App. 1946)(same).
In Aranda v. State, 736 S.W.2d 702,705 (Tex.Crim.App. 1987), the
court rejected the claims that "a defendant should have the prerogative to
make tactical decisions as to where he wants the case tried" and before a
court could change venue sua sponte, "there should be overwhelming
evidence that both the State and defendant will not receive a fair trial."
In Brimage v. State, 918 S.W.2d at 508, the court held that Art. 31.01 does
53
Apx.56
not require this Court to offer evidence in support of its own motion but
rather nlerely offers the parties a chance to be heard. So long' as this
Court states in its order the grounds for its decision, no abuse of discretion
will be shown, and its decision will not be disturbed on appeal. Id.
4. Case Law h"Oln FOl'eign Jurisdictions MiTrors Texas Authority
In State v. Paulsen, 293 N.W.2d 244,246 (Iowa 1980), the defendant
was the Scott County Sherif( who was charged with running a scheme
that overcharged lawyers under a state law that compensated deputies for
mileage they put on their personal vehicles. The State nl0ved for a change
of venue, which the trial court granted. The Iowa Suprelne Court held the
trial court did not abuse its discretion in granting the State's motion for
change of venue because:
Paulsen enjoyed an inherent hOlne field advantage given his 'flocal

popularity as evidenced by his two-thirds n1ajority vote victory in
the previous sheriffs election."
The trial court correctly reasoned "that the sUlnmoning of jurors

essentially from voter registration lists would result in a high
percentage of prospective voters sympathetic to [Paulsen], hence the
likelihood of starting the State in a position 'less than even' with
[Paulsen]'''
In the fourteen months the case was pending, there was "both a
'deluge' and an 'incessant bombardment of pretrial media publicity"
which the trial court concluded "created excitement and prejudice"
54
Apx.57
in Scott County,"
Id. at 244-47. The reasoning and analysis in Paulsen applies with equal
force here. Unlike Paulsen, whose popularity and home field advantage
was reflected by having won a recent election by a super-majority) Paxton
has won fifteen elections, almost all of the contested ones by a super-
majority. While Paxton's jurors, as in Paulsen, will not be summoned by
voter registration lists, his popularity creates the self-same likelihood of
starting the State in a position "less than even" with hinl as in Pa ulsen.
In State v. SPl'oui, 544 A.2d 743, 744-45 (Me. 1988), the defendant
was a D1ember of the Maine House of Representatives and was convicted
of two counts of ballot tanlpering. The trial court changed venue from
Kennebec County to Knox County on its own lllotion because of Sproul's
"position as an elected representative of the City of Augusta and the heavy
pretrial publicity this matter has received." Id. The Supreme Judicial
Court of Maine held the trial court's ruling was not an abuse of discretion
because the trial court "reasonably assunled that [Sproul's] status as a
public official and heavy pretrial publicity would unnecessarily burden the
jury selection process in Kennebec County." Id. at 746. Because this
Court can similarly presume that Paxton's status as a public official and
55
Apx.58
heavy pretrial publicity will unnecessarily burden jury selection in Collin
County, SproulcoITlpels a change of venue in this case as welL
In State v. Poole, 489 N.W.2d 537, 540-41 (Minn. App. 1992), affd,
499 N.W.2d 31 (Minn. 1993), the defendant was charged with 17 counts
of sexual assault in Traverse County, but the trial court changed venue on
its own motion to Chippewa County. The court of appeals concluded the
trial court did not abuse its discretion changing venue sua sponte because
it correctly concluded that "news articles, letters to the editor and public
criticism by the county attorney prevented a fair and inlpartial trial in
Traverse County." ld at 542-43. If mere "news articles, letters to the
editor and public criticism by the county attorney)) constitute a sufficient
basis for the trial court's change of venue on its own motion in Poole, the
record before this Court as recounted in exquisite detail above, one wholly
without equal in the annals of Texas criminal justice, luakes this Court's
task in changing venue as simple as it is clear.
Conclusion
In resolving this discrete issue, one unfettered by concerns like error
preservation or the standard of review, this Court should relnember the
words of Justice Benjamin Cardozo in Snyder v. Massachusetts, 291 U.S.

56
Apx.59
97, 122 (1934), "But justice, though due the accused, is due the accuser
also. The concept of fairness must not be strained till it is narrowed to a
filament. We are to keep the balance true."
If the State of Texas, represented by the Special Prosecutors, is to
obtain either justice or fairness for its victinls on behalf of the 28 million
m
people it has taken a solemn oath to represent, this Court is constrained
to grant the State>s motion to change venue from Collin County, or in the
alternative, to change venue from Collin County on its own motion. It
comes as no surprise that Paxton will vociferously argue that the State
and the victims of Paxton's alleged criIninality can get a fair trial in Collin
County. At the end of the day, controlling case law and the underlying
facts informing this Court's decision clearly compel a contrary conclusion.
But, in the words of Ernest Hemingway "Isn't it pretty to think

I S01"121
Prayer for Relief
The State of Texas prays that this Court grant its motion to change
venue from Collin County, or in the alternative, to change venue from
Collin County on its own motion.
121. THE SUN ALSO RISES, 247 (Macmillan Puhl'g Co. 1987)(1926).
57
Apx.60
Respectfully submitted,
lsi Brian W. Wice
BRIANW. WICE
440 Louisiana Suite 900
Honston, Texas 77002
(713) 524-9922 PHONE
(713) 236-7768 FAX
Bar No. 21417800
KENT A. SCHAFFER
712 Main Suite 2400
(713) 228-8500 PHONE
(713) 228-0034 FAX
Bar No. 17724300
NICOLE DeBORDE
712 Main Suite 2400
(713) 228-8500 PHONE
(713) 228-0034 FAX
Bar No. 00787344
ATTORNEYS PRO TEM

THE STATE OF TEXAS
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5(d), a copy of this motion was served
upon all counsel and the Court bye-filing on February 9,2017.
lsi Brian W. Wice
BRIANW. WIeE
58
Apx.61
APPENDIX TAB 4
LEGISLATIVE FILE MATERIALS: HB 2949

\
.1 Chief Clem of tho House
FILED MAR 1 0 1995
A BILL TO BE ENTITLED
By:
AN ACT
relating to a change of venue in a felony or misdemeanor Cl:lse

without a formal transfer of the ca~e.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 31.09, Code of Criminal Procedure, is

added to read as follows:
Article 31.09 CHANGE OF V!mJE WITHOUT FORMAL TRANSFER OF
CASE.
ta) When an order for a change of venue of any court in any

criminal cause in this state has been made, the judge ordering
the change of venue may do 80 without formally transferring the
case as specified by law. This option will allow the court to
maintain the original cause number on its own docket" ut,11.1za
the services of the court reporter, the court coordinator and
the clerk of the county from which the ease originated upon
agreement in writing of both the county or district attorney,
defense attorney and the defendanh. The court shall utilize the
courtroom facilities, jury panel a~ required and any other opera-
tional means made available by the county where the change of
venue is made and to be tried.
{b) Should all parties agree to 8 change of venue without

formal transfer of the case to another county, the clerk oft.he
originating county shall not be reguired to tollow Art.icle
31.05, Code of Criminal Procedure, but shall maintain the origi-
nal papers of t.he case and cause them to be present for t.rial
and remain with the papers and act as the clerk for the judge of
t.he originating county who ordered the change of venue wit.hout
formal transfer of the case.
(c) upon COMpletion of a trial in which a change of venue

without formal transfer of case is made, the clerk of the county
in which the change of venue was made and tried. will not be
reqUired to follow Article 31.08, section 20 ~ince the clerk of
the originating county waS present and acted as the clerk for
the court during the proceedings.
SECTION 2. This Act takes effect September 1, 1995.
SECTION 3. The importance of thil legislation and the crowd-

ed condition of the calendars in both houses create an emergency
and an imperative public necessity that the conS'titutional rule
requiring bills to be read on three several days In each house
be suspended, and this rule is hereby suspended.
As primary LU+t-w-tof.u> joint author(s):
printed name of joint author #1
printed name of joint author #2 signature of joint author #2
ORIGINAL FORM--Place in book
SEND COPIES TO:

Debbie Irvine (Legislative Council)
1 st Printing
By Kamel H.B. No. 2949

Substitute the following for H.B. No. 2949:
By Greenberg C.S.H.B. No. 2949
1 AN ACT
2 relating to the use of certain court services and facilities after
3 a change of venue has been ordered in a criminal proceeding.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
5 SECTION 1. Section 2, Article 31.08, Code of Criminal
6 Procedure, is amended to read as follows:
7 Sec. 2. (a) Except as provided by Subsection (b), on [en]
8 an order returning venue to the original county in which the
9 indictment or information was filed, the clerk of the county in
10 which the cause was tried shall:
11 (1) make a certified copy of the court's order
12 directing the return to the original county;
13 (2) make a certified copy of the defendant's bail
14 bond, personal bond, or appeal bond;
15 (3) gather all the original papers in the cause and
16 certify under official seal that the papers are all the original
17 papers on file in the court; and
18 (4) transmit the items listed in this section to the
19 clerk of the court of original venue.
20 (b) This article does not apply to a proceeding in which the
21 clerk of the court of original venue was present and performed the
22 duties as clerk for the court under Article 31.09.
23 SECTION 2. Chapter 31, Code of Criminal Procedure, is
C.S.H.B. No. 2949
1 Art. 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES. (a)
2 If a change of venue in a criminal case is ordered under this

3 chapter, the judge ordering the change of venue may, with the
4 written consent of the prosecuting attorney, the defense attorney,
5 and the defendant, maintain the original case number on its own
6 docket, preside over the case, and use the services of the court
7 reporter, the court coordinator, and the clerk of the court of
8 original venue. The court shall use the courtroom facilities and
9 any other services or facilities of the district or county to which
10 venue is changed. A jury, if required, must consist of residents
11 of the district or county to which venue is changed.
12 (b) Notwithstanding Article 31.05, the clerk of the court of
13 original venue shall:
14 (1) maintain the original papers of the case,
15 including the defendant's bail bond or personal bond;
16 (2) make the papers available for trial; and
17 (3) act as the clerk in the case.

18 SECTION 3. The change in law made by this Act applies to a
19 criminal case in which the indictment or information is presented
20 to the court on or after the effective date of this Act. A
21 criminal case in which an indictment or information is presented
22 before the effective date of this Act is covered by the law in
23 effect when the indictment or information was presented, and the
24 former law is continued in effect for that purpose.
25 SECTION 4. This Act takes effect September 1 , 1995.
26 SECTION 5. The importance of this legislation and the
27 crowded condition of the calendars in both houses create an

C.S.H.B. No. 2949
1 emergency and an imperative public necessity that the
2 constitutional rule requiring bills to be read on three several
3 days in each house be suspended, and this rule is hereby suspended.
We, your COMMITTEE ON CRIMINAL JURISPRUDENCE
to whom was referred 1i.8 ;? q J..j i have had the same under consideration and beg to report
back with the recommendation that it
( ) do pass, without amendment.

( ) do pass, with amendment(s).
C)Q do pass and be not printed; a Complete Committee Substitute is recommended in lieu of the original measure.
( 0yes ( ) no A fiscal note was requested.
(v(yes ( ) no A criminal justice policy impact statement was requested.
( ) yes (~o An equalized educational funding impact statement was requested.
( ) yes (0no An actuarial analysis was requested.
( ) yes ( /no A water development policy impact statement was requested.
( vrThe Committee recommends that this measure be sent to the Committee on Local and Consent Calendars.
F~S~~eM~~re~Ho~eSpoos~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Joint Sponsors
----------------,----------------,----------------,---------------
Co-Sponsors: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
The measure was reported from Committee by the following vote:

AYE NAY PNV ABSENT
Place, Ch. V
Talton, V.C. 1/
Farrar V'
Greenberg ;//
Hudson V'
Nixon V
Pickett v'"
Pitts V
Solis ~
Tota! __1.L-_ aye

_ . 0'--_
.. nay
_ . .0",-__ present, not voting CHAIRMAN ,,,;
~2~-:...-....._ absent
Criminal Jurisprudence Committee
C.S.H.B. 2949
By: Kamel
04-27-95
Committee Report (Substituted)
BACKGROUND
Numerous judges throughout the state order change of venue in criminal cases and would like
the option of using existing court services. The county in which the change of venue is granted
is often under-staffed and cannot handle the daily routine of having a visiting judge in a case in
PURPOSE
If enacted, C.S.H.B. 2949 would allow judges to preside over cases and use the existing court
services when ordering a change of venue.
RULEMAKlNG AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency, or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 2, Article 31.08, Code of Criminal Procedure (RETURN TO

COUNTY OF ORIGINAL VENUE), as follows:
(a) Provides an exception to Subsection (b) regarding the duties of the county clerk on
an order returning venue.
(b) Makes this article inapplicable to a proceeding in which the clerk of the court of
original venue was present and performed the duties as clerk for the court under Article
31.09.
SECTION 2. Amends Chapter 31, Code of Criminal Procedure (CHANGE OF VENUE), by

adding Article 31.09 as follows:
Art. 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES.
(a) Allows the judge ordering a change of venue to maintain the original case number on
its docket, preside over the case, and use the services of the court reporter and other court
staff. Requires the court to use the courtroom facilities and other facilities of the district
or county to which venue is changed. Requires a jury to consist of residents of the
district or county to which venue is changed.
(b) Requires the clerk of the court of original venue to:
(1) maintain the original papers of the case;
(2) make the papers available for trial; and
(3) act as the clerk in the case.

SECITON 5. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
SECITON 1 of substitute is added to amend Section 2, Article 31.08, Code of Criminal

Procedure.
SECITON 2 of substitute (SECITON 1 of original) amends Chapter 31, Code of Criminal

Procedure, by adding Article 31.09. The substitute entitles this article CHANGE OF VENUE;
USE OF EXISTING SERVICES, whereas the original entitles it CHANGE OF VENUE
WITHOUT FORMAL TRANSFER OF CASE. The original bill addresses the judge's right to
order change of venue without formally transferring the case; this is deleted in the substitute.
Both bills allow the court to use existing services and facilities in a case in which venue has
changed. Subsection (c) of the original bill, allowing the clerk of the county in which the change
of venue was made and tried not to follow Article 31.08, Section 2, is deleted from the substitute.
SECITON 3 of the substitute adds applicability clause. It makes effect of the Act prospective.
SUMMARY OF COMMITTEE ACTION
HB 2949 was considered by the full committee in a public hearing on April 19, 1995. The bill
was left pending. HB 2949 was considered by the full committee in a formal meeting on April
27, 1995. The committee considered a complete committee substitute for the bill. The substitute
was adopted by a non-record vote. HB 2949 was reported favorably as substituted, with the
recommendation that it do pass and be printed and be sent to the Committee on Local and
Consent Calendars, by a record vote of 7 ayes, 0 nays, 0 pnv, and 2 absent.
FISCAL NOTE
74th RegUlar Session
May 1, 1995
TO: Honorable Allen Place, Chair IN RE: Committee Substitute

Committee on Criminal Jurisprudence for House Bill No. 2949
House of Representatives
Austin, Texas
FROM: John Keel, Director
In response to your request for a Fiscal Note on House Bill No. 2949 (Relating to the use of
certain court services and facilities after a change of venue has been ordered in a criminal
proceeding.) this office has determined the following:
No fiscal implication to the State is anticipated.
No significant fiscal implication to units of local government is anticipated.
Source: LBB Staff: JK, BR, RR

FISCAL NOTE
74th Regular Session
April 18, 1995
TO: Honorable Allen Place. Chair IN RE: House Bill No. 2949
Committee on Criminal Jurisprudence By: Kamel
Austin, Texas
In response to your request for a Fiscal Note on House Bill No. 2949 (relating to a change of
venue in a felony or misdemeanor case without a formal transfer of the case) this office has
determined the following:
Source:
LBB Staff: JK, DC, RR
LEGISLATIVE BUDGET BOARD
CRIMINAL JUSTICE POLICY IMPACT STATEMENT
May 1. 1995
TO: Honorable Allen Place, Chair IN RE: Committee Substitute for

Committee on Criminal Jurisprudence House Bill No. 2949
Austin, Texas
In response to your request for a Criminal Justice Policy Impact Statement on HB2949 (relating
to a change of venue in a felony or misdemeanor case without a formal transfer of the case.) this
office has determined the following:
No significant impact on the programs and workload of state corrections agencies or on the
demand for resources and services of those agencies is anticipated from any provisions of this
bill that authorize or require a change in the sanctions applicable to adults convicted of felony
crimes.
March 28,1995
TO: Honorable Allen Place, Chair IN RE: House Bill No. 2949
Austin, Texas
In response to your request for a Criminal Justice Policy Impact Statement on HB2949 (
Relating to a change of venue in a felony or misdemeanor case without a formal transfer of the
case.) this office has determined the following:
crimes.
BYW
Substitute the following for~B. No. ~~~
%so No.29Li
By G-;ecEJ]?c2G- CasABa No. ~9
1 AN ACT

7 Sec. 2. (a) Except as provided by Subsection (b), on [e~]


12 directing the return to the original county:






15 including the defendant's bail bond or personal bond~


24 former law. is continued in effect for that purpose.
25 SECTION 4. This Act takes effect September 1, 1995.
By Kamel H.B. No. 2949
1 AN ACT
3 a change of venue has been ordered in a criminal proceeding. ~.~~

7 Sec. 2. (a) Except as provided by Subsection (b), on [9r't]


17 papers on file in the court: and


H.B. No. 2949


20 to the court on or after the effect~ve date of this Act. A



H.B. No. 2949
4 '
4 Justice; May 22, 1995, reported favorably by the following vote:

5 Yeas 5, Nays 0: May 22, 1995, sent to printer.)
6 A BILL TO BE ENTITLED
7 AN ACT
13 Sec. 2. (a) Except as provided by Subsection (b), on [e~l
18 directing the return to the original county:
26 {b) This article does not apply to a proceeding in which the
30 amended by adding Article 31.09 to read as follows:
31 Art. 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES. (al
37 re~orter, the court coordinator, and the clerk of the court of
38 orlginal venue. The court shall use the courtroom facilities and
45 including the defendant's bail bond or personal bond:
57 crowded condition of the calendars in both houses create an
61 * * * * *
SENATE COMMITrEE REPORT ON
SB SCR SJR SR J
By--____~~~~~~~~--r_--
HC . 214'1
s: IJCI p: .
We, your Committee on CRIMINAL JUSTICE to which was referred the attached measure,
have on had the same under consideration and lam instructed to report it
(date ofh aring)
back with the recommendation (s) that it:
(~do pass and be printed
() jP pass and be ordered not printed
<vi'and is recommended for placement on the Local and Uncontested Bills Calendar.
A fiscal note was requested. <~s () no
A revised fiscal note was requested. ( ) yes (lno
An actuarial analysis was requested. () yes (~
Considered by subcommittee. () yes C/no
The measure was reported from Committee by the following vote:
YEJ\.. NAY ABSENT PNV

Whitmire, Chairman ~/
Shapiro Vice-Chairman ~
Brown v/
Moncrief -/
Harris /;
Turner /'
-
West v'
TOTAL VOTES ~ 0 7_ B
CQMMITrEE ACTION
Considered in public hearing

Testimony taken
COMMITrEE CLER~
Paper clip the original and one copy of thislligned fonn to the original bill
CHAI.A\..o...~..
Retain one copy of this fonn fot' Committee files

Senate Research Center H.B. 2949
By: Kamel (Nixon)
Criminal Justice
05-18-95
Engrossed
BACKGROUND
A change of venue is not uncommon in a criminal case. Currently, the use of the judge's
existing services and resources is not an option to the judge.
PURPOSE
As proposed, H.B. 2949 authorizes judges to preside over cases and use the existing court
RULEMAKING AUTHORITY
It is the committee' s opinion that this bill does not grant any additional rulemaking authority to
a state officer, institution, or agency.
SECTION BY SECTION ANAL YSIS
SECTION 1. Amends Section 2, Article 31.08, Code of Criminal Procedure, to provide that
this article does not apply to a proceeding in which the clerk of the court of original venue was
present and performed the duties as clerk for the court under Article 31.09. Makes a conforming
change.
SECTION 2. Amends Chapter 31, Code of Criminal Procedure, by adding Article 31.09, as
follows:
Art 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES. (a) Authorizes

the judge ordering a change of venue in a criminal case, with the written consent of the
prosecuting attorney. the defense attorney. and the defendant, to maintain the original case
reporter, the court coordinator, and the clerk of the court of original venue. Requires the
court to use the courtroom facilities and any other services or facilities of the district or
county to which venue is changed. Requires a jury to consist of residents of the district
or county to which venue is changes.
(b) Sets forth the required actions of the clerk of the court of original venue.
SECTION 3. Makes application of this Act prospective.
SECITON 4. Effective date: September 1, 1995.
SECITON 5. Emergency clause.

Senate Research Center H.B.2949
By: Kamel (Nixon)
Criminal Justice
05-22-95
Senate Committee Report (Unamended)
BACKGROUND
PURPOSE
As proposed, H.B. 2949 authorizes judges to preside over cases and use the existing court
It is the committee's opinion that this bill does not grant any additional rulemaking authority to
SECTION 1. Amends Section 2, Article 31.08. Code of Criminal Procedure, to provide that
change.
SECTION 2. Amends Chapter 31, Code of Criminal Procedure, by adding Article 31.09, as
follows:
Art. 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES. (a) Authorizes

prosecuting attorney, the defense attorney. and the defendant, to maintain the original case
SECTION 4. Effective date: September I, 1995.
SECTION 5. Emergency clause.

FISCAL NOTE
May 16, 1995
TO: Honorable John Whitmire. Chair IN RE: House Bill No. 2949,
Committee on Criminal Justice as engrossed
Senate By: Kamel et al.
Austin, Texas
Source: LBE Staff: JK, cr, RR

May 17,1995
TO: Honorable John Whitmire, Chair IN RE: House Bill No. 2949, as
Committee on Criminal Justice engrossed
Senate By: Kamel; Saunders
Austin, Texas
Relating to the use of certain court services and facilities after a change of venue has been
ordered in a criminal proceeding.) this office has determined the following:
crimes.
FISCAL NOTE
May 1, 1995
TO: Honorable Allen Place, Chair IN RE: Committee Substitute

Committee on Criminal Jurisprudence for House Bill No. 2949
Austin, Texas
Source: LBB Staff: JK, BR, RR

FISCAL NOTE
Apri118, 1995
Austin, Texas
In response to your request for a Fiscal Note on House Bill No. 2949 (relating to a change of
venue in a felony or misdemeanor case without a formal transfer of the case) this office has
determined the following:
Source:
LBB Staff: JK, DC, RR
May 1,1995
TO: Honorable Allen Place, Chair IN RE: Committee Substitute for

Committee on Criminal Jurisprudence House Bill No. 2949
Austin, Texas
In response to your request for a Criminal Justice Policy Impact Statement on HB2949 (relating
to a change of venue in a felony or misdemeanor case without a formal transfer of the case.) this
office has determined the following:
crimes.
March 28. 1995
Austin, Texas
Relating to a change of venue in a felony or misdemeanor case without a formal transfer of the
case.) this office has determined the following:
crimes.
------------------------- ~v~~ ------------------------
Subject: HB 2949 (BILL NO.) WITNESS - CRIMINAL JUSTICE
Revised: WITNESS FORM
74th Legislature
COMMITTEE: Criminal Justice
BILL: HB 2949 DATE: 05 19 95
FOR AGAINST ON
Name: Amalia Rodriguez-Mendoza
Representing: Co. & Dist. Clerks Assc.--o~f-=T~X
City: Austin________________________
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
Name:
Representing:
City:
# # # # PART 01 OF 01 # # # #
======================= END o F FOR M =====================
r
E\'~ROLLED
H.B. No. 2949
1 AN ACT
7 Sec. 2. (a) Except as provided by Subsection (b), on [en]
H.B. No. 2949
25 SECTION 4. This Act takes effecc September 1, 1995.
27 crowded condition of the calendars in both hOll~P~ ~rp~tp ~n
H.B. No. 2949

H.B. No. 2949
President of the Senate Speaker of the House
I certify that H.B. No. 2949 was passed by the House on May
9, 1995, by a non-record vote.
Chief Clerk of the House
I certify that H.B. No. 2949 was passed by the Senate on May
27, 1995, by the following vote: Yeas 31, Nays O.
Secretary of the Senate
APPROVED:
Date
Governor
President of the Senate Speaker of the House
I certify that H.B. No.~was passed by the House

(1)
on ___ ~~~~~~~~~~
.. , , ( / (2)
9
_____________ ,
1
1995, by a non-record vote.
Chief Clerk of the House
I certify that H.B. No. ;<7JI;?was passed by the Senate

on ______-=~~~~~~~~~~~;?~---------,
'73)1 1995, by the following vote:
Yeas ~,
(4)
Nays ~L2~ ____________~~__________________
(5)
Secretary of the Senate
APPROVED:
Date
Governor
**** Preparation: CT26i

~enate Kesearch Center n.n . .I.':JI.f':J
By: Kamel (Nixon)
Criminal Justice
6-7-95
Enrolled
BACKGROUND
PURPOSE
As enrolled, H.B. 2949 authorizes judges to preside over cases and use the existing court services
when ordering a change of venue.
It is the committee's opinion that this bill does not grant any additional rulemaking authority to
SECTION 1. Amends Section 2, Article 31.08. Code of Criminal Procedure. to provide that
change.
SECTION 2. Amends Chapter 31. Code of Criminal Procedure. by adding Article 31.09. as
follows:
Art. 31.09. CHANGE OF VENUE; USE OF EXISTING SERVICES. (a) Authorizes

prosecuting attorney, the defense attorney, and the defendant, to maintain the original case
SECTION 4. Effective date: September 1, 1995.
SECTION 5. Emergency clause.

. . l~'k~-42 _Rep()tted _;_JavOrabJY: '.(as tillie_d)
. '1995" (as substituted)
_ _-
MAY _
04.
_ _ _ _. Senft<) Committee on (C_da,~
'(Local & Consent Calendars)
_ ....HA....-lf~:_'_.'_._-....-_. Read second time (comm. SUbSi.) <_evule"; passed to third reading (~by a (norHecord vote)
, (~d v0t\5 of' 'yeas, flayS, ' ~sent, Dot yoting) _
........_ _....,....."'-"'_ _ _ Constitutionalru1e requiring. bills to be read on three several days suspended (failed to suspend)
by a vote of yeas, nays, ' present. not voting
_._HA...,...-~_._-_8__
"",-__.Readdtirdtime ~ed); finally passed (fmted levfttli) by a (non-record vote)
-- (xm;.d vote of" , ,eM,' ~. . pmstnt not votiEB)
'IIO'919S5 '~grOSsed
_._....,' Sen~' to Senate
.,_1....0___-_.
_'-.....M
....A_'t_1_'0_'.....__
....._.__ ReCeived from tlreHoose
_.;;.;..;.~..;..~--"1..;..1_1_995
__ Read and referred to Committee on _ ........_ _C_RlMlN_._.
__PJ..._....JUS--:n-C-E.----
MAY'>iZ-]995 '"Reported favorably _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
_ _ _- - -___ Reported adversely. with favorable Committee Substitute: Committee Substitute read first time
_ ...............;---___' Ordered not primed
........_ _~_ _ _ _ Senate and Constitutional Rules to permit consideration suspended by (unanimous consent)
( yeas, nays)
X _2"",.+1..1Oi'.~.
_...JIIN!IIIA..... ___ R:~ second time._........______-.;. and passed to third reading by (unanimous consent)
lvavoce~
( ~as,_nays)
;...;'.,...;!M
Wl
A:;&&l....olI!I2!.;.17.....1:,:.;995=o,. _ _ Senate and Constifutional3 Day Rules suspended by It vote of .31 yeas, D nays
MAY 2 71995 Read third time ...,...._ _ _ _ _ _ _" and passed by ~ 'IPJQ vee.. '1ete)
(3 I yeas, -'l.. nays)
J~~'.
_ _ _ _ _ _ _ _..,.. House concurredin senate ~~tsbya(rion-record v o t e ) ' j
(record vote of . yeas~ nays. _ _ _ _ present, not votill8J
i.
r
_ _ _ _ _ _ _..-_ House refused to concW'i~.$cnate amendments and requested tire appOinttnentof:,\~ere,nceCmnmi~:
by a (non~record vote)(~vo~of . yeas, n a y s , . j~,~~)
- - - - - - -.......... House.confereesappo~<I}', Chair;' ./:~:k;' .'.. (f' . . .' ,;.--
',,\; ..
_ _ _ _ _ _ _ _ _ Senate granted House request. SeDate conferees a p p o i n t e d : \ J ; ( : . . . ',',

j'
~ l.
________ c:onfetence comm_re~~(,,"jecied) bydle House by (llOIl"*"<c>fil ~ji

(record VQte of " yeas, .' nays, present, not vOting)
} ..
_______........___ Conf.~ce ~~'~~~ed)by the Senate by a (viva VOO(fvme)';'
(record vote of'
.~:~:,<, nays) . '. . .
,,:,",
-. ~ .. ./
, '
APPENDIX TAB 5
HB 2949 BILL CAPTIONS

Texas Legislature Online - 74(R) Captions for HB 2949 Page 1 of 1
Texas Legislature Online

Captions
Bill: HB 2949 Legislative Session: 74(R) A.uthor: Kamel
Introduced
Relating to a change of venue in a felony or misdemeanor case without a formal transfer of the case.
House Committee Report
Relating to the use of certain court services and facilities after a change of venue has been ordered in a
criminal proceeding.
Engrossed
Senate Committee Report
Enrolled
http://www.legis.state.tx.us/BillLookup/Captions.aspx?LegSess=74R&Bill=HB2949 5/22/2017
APPENDIX TAB 6
AMENDED ORDER OF ASSIGNMENT

FROM REGIONAL ADMINISTRATIVE JUDGE
AUGUST 18, 2015

THE STATE OF TEXAS
FIRST ADMINISTRATIVE JUDICIAL REGION
ORDER OF ASSIGNMENT BY THE PRESIDING JUDGe
Pursuant to Section 74.056, Texas Government Code, I assign the:
Honorable George Gallagher
Active Judge of The 396th District Court
tethe
416th District Court of Collin County, Texas
This assignment is for the cause{s) and style(s) as stated in the conditions of
assignment from this date until plenary power has expired or the undersigned
Presiding Judge has terminated this assignment in writing, whichever occurs first.
CONDITION(S) OF ASSIGNMENT
Cause Nos. 416-82148-2015 and 416-82149-2015; The State of Texas v. Warren
Kenneth Paxton, Jr.
In addition, whenever the assigned Judge is present in the county of

assignment for a hearing in the above cause{s), the Judge is also assigned and
empowered to hear, at that time. any other matters presented for hearing.
It is ordered that the Clerk of the court to which this assignment is made, if it is
reasonable and practicable and if time permits, give notice of this assignment to
each attorney representing a party to a case that is to be heard in whole or in part
by the assigned Judge.
Assigl1# 25712
APPENDIX TAB 7
COURT OF APPEALS' ORDER INVITING PAXTON TO

REPLY TO STATE'S LETTER BRIEF REGARDING THE
COURT OF APPEALS' JURISDICTION
Order entered May 16,2017
In The
([ourt of ~ptal~
jfiftb 11Bi~trirt of Q';txa~ at 11BaUa~
No.05-17-00507-CV
No. 05-17 -00508-CV
No. 05-17 -00509-CV

ORDER
Before the Court are relator's May 15, 2017 petition for writ of mandamus, petition for
writ of prohibition, and request for emergency relief. We GRANT relator's request for
emergency relief and STAY all proceedings in the trial court in cause numbers 416-81913-2015,
416-82148-2015, and 416-82149-2015 pending resolution of this original proceeding. This stay
shall remain in effect until further order of this Court.
The Court requests that real parties in interest and respondent file their responses, if any,
to the petition for writ of mandamus and petition for writ of prohibition no later than May 23,
2017. The Court also requests that relator file his response, if any, to Brian W. Wice's May 16,
2017 letter brief regarding this Court's jurisdiction over this original proceeding no later than
May 23, 2017.

lsi ROBERT M. FILLMORE
JUSTICE

Texas Court of Criminal Appeals Mandamus by Paxton Special Prosecutors June 2017

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Texas Court of Criminal Appeals Mandamus by Paxton Special Prosecutors June 2017

Transféré par

Droits d'auteur :

Formats disponibles

NOS.

COURT OF CRIMINAL APPEALS

IN RE THE STATE OF TEXAS Ex REL. BRIAN W. WICE, RELATOR

ON STATE'S PETITION FOR WRIT OF MANDAMUS

IN CAUSE NOS. 416-81913-2015; 416-82148-2015; 416-82149-2015

RELATOR'S PETITION FOR WRIT OF MANDAMUS

BRIAN W. WICE KENT SCHAFFER

COLLIN COUNTY CRIMINAL DISTRICT ATTORNEYS PRO TEM

ORAL ARGUMENT REQUESTED

Pursuant to TEX.R.APp.P. 38.1 (a), this list of all interested parties

is provided so the Court's members can determine if they are disqualified

to serve or should recuse themselves from participating in this matter:

Defendant-Real Party in Interest:

Counsel for Relator:

Counsel for Defendant-Real Party in Interest:

INDEX OF AUTHORITIES ................................. IV

STATEMENT REGARDING ORAL ARGUMENT ................ 1

STATEMENT OF THE CASE ................................ 1

STATEMENT OF THE PROCEDURAL HISTORY ................ 2

STATEMENT OF JURISDICTION ............................ 2

GROUNDS FOR MANDAMUS RELIEF ........................ 2

1. The Court of Appeals had a clear legal duty to consider its

2. Texas Code of Criminal Procedure art. 31.09(a) gives either

SUMMARY OF ENTITLEMENT TO RELIEF ................... 5

ARGUMENT AND AUTHORITIES ............................ 8

B. The Inadequate Remedy at Law Requirement ............... 8

C. The Ministerial Duty Requirement ........................ 9

D. The Court of Appeals Had a Clear Legal Duty

E. The Court of Appeals Had a Clear Legal Duty to Hold

1. The Legislative History and Intent Behind Art. 31.09 ..... 17

2. Questions of First Impression are

3. The Court of Appeals Ignored

4. Whether Art. 31.09 Violates Separation of Powers is an

PRAYER FOR RELIEF ..................................... 29

CERTIFICATE OF SERVICE ................................ 30

CERTIFICATE OF COMPLIANCE ........................... 31

Armadillo Bail Bonds v. State,

Bowen v. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011) ........... 9

Carroll v. Carroll, 304 S.W.3d 366 (Tex. 2010) .................. 12

Davis v. Crist Industries, 98 S.W.3d 338

Ex parte Giles, 502 S.W.2d 774 (Tex.Crim.App. 1974) ......... 27,28

Ex parte Paxton, 493 S.W.3d 292

In re Allen, 462 S.W.3d 47 (Tex.Crim.App. 2015) ............. 11,24

In re Canales, 52 S.W.3d 698 (Tex. 2001) ...................... 26

In re Dow, 481 S.W.3d 215 (Tex. 2015) ..................... 12,17

In re Medina, 475 S.W.3d 291 (Tex.Crim.App. 2015) ............. 10

In re Republic Parking System of Texas, Inc.,

In re State ex reI. Weeks, 391 S.W.3d 117

Jones v. State, 803 S.W.2d 712 (Tex.Crim.App. 1991) ............. 27

Knowles v. Scofield, 598 S.W.2d 854 (Tex.Crim.App. 1980) ..... 10,29

Lanford v. Fourteenth Court of Appeals,

Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App. 1987) ........... 28

Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App. 1996) ............. 11

Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1987) ............. 28

Sims v. State, 99 S.W.3d 600 (Tex.Crim.App. 2003) .............. 16

State ex reI. Curry v. Gray, 726 S.W.2d 125 (Tex.Crim.App. 1987) .. 16

State ex reI Rosenthal v. Poe, 98 S.W.3d 194

State ex reI. Sutton v. Bage, 822 S.W.2d 55 (Tex.Crim.App. 1992) ... 8

State v. Zuniga, 512 S.W.3d 902 (Tex.Crim.App. 2017) . . . . . . . .. 15,16

Thomason v. State, 892 S.W.2d 8 (Tex.Crim.App. 1994) ........... 25

Walker Sand, Inc. v. Baytown Asphalt Materials,

Williams v. State, 707 S.W.2d 40 (Tex.Crim.App. 1986) ........... 29

CODE OF CRIMINAL PROCEDURE:

Art. 31.05 ................................................. 5