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Filed: 8/15/2016 10:40:17 AM

Lisa David, District Clerk


Williamson County, Texas
Stephanie Aleman

CAUSE NO. 16-0816-C425

THE STATE OF TEXAS EX REL. IN THE DISTRICT COURT


DEE HOBBS, COUNTY ATTORNEY
FOR WILLIAMSON COUNTY, TEXAS
Plaintiff
V.

OF WILLIAMSON COUNTY, TEXAS

JANA DUTY A/K/A JANA L.


HUNSICKER, IN HER OFFICIAL
CAPACITY AS DISTRICT ATTORNEY
OF WILLIAMSON COUNTY, TEXAS

Defendant 425 JUDICIAL DISTRICT


DEFENDANT'S BRIEF ON ISSUANCE OF CITATION
OPPOSITION TO THE ISSUANCE OF CITATION
AND MOTION TO DISMISS
COMES NOW Williamson County District Attorney Jana Duty ("Ms. Duty") and
submits this Motion To Dismiss and Brief On Issuance Of Citation as follows:
Introduction
1) This is a statutory removal lawsuit filed against Ms. Duty pursuant to Texas Local
Government Code Chapter 87. County Attorney Dee Hobbs has filed an application for the
issuance of citation, which is pending before the Court. Subject to and without waiver of the
statutory requirement of an order by the district judge regarding the application for citation
pursuant to Loc. GOV'T CODE 87.016, Ms. Duty requests that the Court deny the application for
issuance of citation and dismiss the petition because the petition fails to state grounds for
removal under Chapter 87 and the purpose of this suit, and the outcome if successful, is not for
the protection of the public welfare.

Envelope# 12162483

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Brief on the Issuance of Citaiwsi


2) The Court has broad discretion to deny the issuance of citation. In a removal suit, the
district judge exercises gatekeeper discretion through the decision of whether or not to order the
issuance of citation. Section 87.016(c) of the removal statute states: "If the judge refuses to issue
the order for citation, the petition shall be dismissed at the cost of the person filing the petition.
The person may not take an appeal or writ of error from the judge's decision." Because the
statute expressly denies the ability to appeal a denial of citation, all appellate decisions on
attempts to appeal a denial are dismissed for lack of jurisdiction and there are no published cases
setting forth any standard to be utilized by the district court in making its decision.
3) Because the denial of citation is not reviewable on appeal, the district judge clearly has
broad discretion to deny citation. An example of this is the 2012 removal proceeding against
Cameron County District Attorney Armando Villalobos. D.A. Villalobos was the subject of a
multi-count federal extortion indictment involving egregious official misconduct that involved
District Judge Abel Limas. D.A. Villalobos was eventually tried and sentenced to 13 years in
prison. Despite clear grounds for removal set forth in his indictment, the district judge denied
citation and dismissed the removal petition. (See Exhibit A). The Villalobos case demonstrates
that the district judge has broad discretion to deny the issuance of citation. Assuming, for the
sake of argument, that the Court chooses to make a substantive decision on the issuance of

1 See Reger v. State, No. 02-12-00178-CR, 2014 WL 4656632, at *4 (Tex. App.Fort Worth Sept. 18, 2014, pet.
refd) (mem. op.) ("The trial courts refusal to proceed on Appellant's petition for removal was within the trial
court's discretion and is not appealable."); Mendoza v. Ochoa, No. 13-08-00588-CV, 2009 WL 1396135, at *1 (Tex.
App.Corpus Christi May 21, 2009, pet. denied) (mem. op., per curiam) ("This Court does not have jurisdiction.
An appeal may not be taken from a dismissal of a petition to remove an elected judge where the trial court refused to
issue citation."); See Also Duncan v. Peabody, No. 09-05-00227-CV, 2005 WL 1906965, at *1 (Tex. App.Beaumont Aug. 11, 2005, no pet.) (mem. op.) and Burks v. Yarbrough, No. 14-02-00958-CV, 2002 WL 31835504,
at *1 (Tex. App.Houston [14th Dist] Dec. 19, 2002, no pet.) (not designated for publication) (both to same
effect).

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citation in the absence of the county attorney, Ms. Duty suggests that the district court should
apply to two step inquiry:
a. Does the removal petition allege grounds for removal?
b. If so, then does the removal proceeding protect the public welfare?
4) Does the petition allege grounds for removal? As discussed above, there is no statutory
or case law precedent identifying a standard to be applied by the district judge in the decision of
whether or not to order the issuance of citation. However, one reasonable standard to apply is to
examine whether or not the allegations of the petition are sufficient to allege grounds for removal
under the statute. In the absence of factual allegations constituting grounds for removal, the
issuance of citation would merely prolong a pointless proceeding and result in a waste of judicial
and public resources. In the case at bar, as discussed below, the allegations of the petition do not
constitute grounds for removal, therefore the district judge should deny the application for
issuance of citation.
5) Does the removal proceedine protect the public welfare? If the only standard to be
applied by the district judge were an inquiry into whether or not the petition stated a viable claim
for removal, then the statute could have articulated such a standard and provided for appellate
review. However, the removal statute does not provide such a limited discretion and expressly
prevents appellate review of the denial of citation. Therefore, it is reasonable to conclude that
the legislature intended the district judge to exercise broader discretion in its gatekeeper role
even if the petition contained facially valid grounds for removal. The Texas Supreme Court has
provided guidance as to the purpose of the removal statute that informs the exercise of this
discretion. "[T]he object is not to punish the officer for his derelictions or for the violation of a
criminal statute but to protect the public in removing from office by speedy and adequate means

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those who have been faithless and corrupt and have violated their trust." Meyer v. Tunks, 360
S.W.2d 518, 520 (Tex. 1962). "The remedy ofouster is one which 'belongs to the state, in its
sovereign capacity, to protect the interests of the people as a whole and guard the public welfare
by ousting incumbents of office who wrongfully hold to the injury of the public." Dishman 359
S.W.2d at 458. Wolfe, 341 S.W.3d at 932. Based on these statements of the Texas Supreme
Court, it is reasonable to conclude that even if the petition states a facially valid basis for
removal, the judge should deny the issuance of citation if the judge concludes that the removal
suit is for the purpose of punishment of the officer and does not protect the interests of the people
or guard the public welfare. In this case, Ms. Duty's current term of office expires on December
31, 2016, at which time her successor will take office. This fact alone indicates that the object of
this suit is to punish Ms. Duty because the waste of public and judicial resources necessitated by
this suit will not materially guard the public welfare by removing an officer whose term of office
is set to expire within months.
6) The district judge is not limited to an in camera review of the pleadings. The county
attorney's application requests that the Court limit itself to an in camera review of the pleadings
and requests that the Court hold no hearings and not consider "outside influences" citing to Smith
v. State ex r el. Letson, 07-04-003 8-CV, 2004 WL 2029609, at *2 (Tex. App.AmariUo Sept. 9,
2004, no pet.) However, Letson does not limit the Court's basis for making a decision on the
issuance of citation. In that case, the petition "included a myriad of allegations" supporting the
removal of Leon "Bubba" Smith from his office as Constable of Precinct 4 of Potter County,
including actions in his official capacity to threaten and intimidate the victim of a crime
committed by his own brother. The court in that case was reviewing the denial of a plea to the

2 There are several documents attached to the County Attorney's petition. Presumably the County Attorney wants
the Court to consider these as evidence in support of the petition. Accordingly, the County Attorney's own pleading
is inconsistent with the request that the Court consider only the contents of the petition.

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jurisdiction, not the district judge's decision on citation. Nothing in that case speaks to the trial
judge's decision on citation, therefore this case does not constitute authority for any limitation on
the court's consideration matters outside the pleadings. Furthermore, nothing in Chapter 87 sets
forth any limitation on the Court's discretion to consider matters outside the pleadings in making
this decision. If the Legislature had intended for the Court to so restrict its consideration, it
could have easily expressed such a limitation in the statute.
7) The Villalobos case mentioned above demonstrates that district judges do not limit their
consideration to the contents of the petition. The removal petition in that case incorporated the
34-page federal indictment ofVillalobos for, among other things, soliciting and accepting bribes
for reduced charges and dismissals in criminal proceedings, bond reductions, and handing out
forfeiture cases to private attorneys. (See Exhibit A). These allegations of an ongoing criminal
enterprise clearly stated more than adequate grounds for removal. If, as suggested by the
application in this case, the Court's decision on the issuance of citation is limited to an in camera
review of the petition to determine whether it alleges grounds for removal, then the allegations in
the Villalobos petition should have resulted in the issuance of citation. The judge's order
denying citation in that case recites that the court held a hearing and heard argument in which
counsel for Villalobos participated. (See Exhibit A). The judge's decision not to issue citation
in that case demonstrates that the Court's consideration is not limited to an in camera review of
the petition.
8) Other district judges in district attorney removal cases have also considered matters
outside the pleadings in making decisions on the issuance of citation. In the case filed against
Dallas County District Attorney Susan Hawk, Ms. Hawk filed a motion to be heard prior to the

3 Exhibit A includes the original petition for removal with the indictment as well as Judge Banales' order denying
citation.

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court's determination on citation. (See Exhibit B). Judge Peoples entered an order denying the
issuance of citation reciting that the court held a hearing on defendant's opposition to citation
and request for dismissal, demonstrating that in making the decision on citation, Judge Peeples
considered pleadings outside the petition and held a hearing in which counsel for Ms. Hawk
participated. (See Exhibit B). Accordingly, district judges in other district attorney removal
cases have not considered themselves restricted to an in camera review of the petition in making
a decision on the issuance of citation.
The petition fails to state valid grounds for removal.
9) The petition in this case asserts that Ms. Duty should be removed from office for
incompetence and official misconduct based on two events in State v. Harmel:
a. Providing the defense with a DVD of security camera footage that included time
stamps, but not explaining to defense counsel that viewing the time stamps required
the use of a specific video software application.
b. Speaking to a reporter to respond to defense allegations that she had withheld
evidence in after Judge Kennon had issued a gag order.
10) The foregoing allegations fail to state grounds for removal for the following reasons:
a. Ms. Duty did not withhold any evidence from the defense in State v. Harmel.
b. To the extent that the failure to disclose the method of accessing the time stamp
information constitutes withholding of evidence, such evidence was inculpatory for
which there is no obligation to disclose.
c. The gag order issued by Judge Kennon was on its face an unconstitutional prior
restraint of free speech.

4 Exhibit B includes Ms. Hawk's motion to be heard (without exhibits) and Judge Peeples' order denying the
issuance of citation.

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11) Ms. Duty did not withhold any evidence from the defense in State v. Harmel. The
evidence at issue in the Harmel case is security camera footage with time stamps showing
Harmel's early morning retrieval of his truck from a Wal-Mart parking lot at the same time that
the murder victim was left in a car across the street from the Wal-Mart. The prosecution
provided a complete copy of the footage to the defense, however the time stamps could only be
viewed with a specific video player application. It is undisputed that the actual evidence is the
video footage, all of which was provided to defense counsel. The only thing that was not
provided was an explanation of how to view the time stamps. The statutory definition of
"official misconduct" requires unlawful behavior relating to official duties, including the refusal
"to perform a duty imposed on the officer by law." LOG. GOV'T CODE 87.011(3). There is no
law that imposes a duty on a prosecutor to explain to defense counsel how to access and utilize
evidence provided in disclosure, therefore this does not constitute grounds for removal under the
statute.

12) There is no duty to disclose inculpatory evidence. The time stamp video was not
exculpatory evidence because it showed that Harmel, who admitted to being with the murder
victim the night before, retrieved his truck at the same time and location where the victim's body
was left. To the extent that the failure to explain how to access the time stamps could be
construed as a failure to disclose evidence, it could only be a failure to disclose inculpatory
evidence. Although there is a legal duty to disclose exculpatory evidence imposed by Brady v.
Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963), such legal duty
does not extend to evidence that is not exculpatory. Ex parte Dixon, 964 S.W.2d 719, 723 (Tex.
App-Fort Worth 1998, pet. refd) ("[W]e find that the test results on the bullet casings are not
exculpatory and thus the prosecution had no duty to disclose the results.") Similarly, Texas

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Code of Criminal Procedure Art. 2.01, cited in the petition, states that district attorneys "shall not
suppress facts or secrete witnesses capable of establishing the innocence of the accused." This
prohibition only applies to exculpatory evidence. The explanation at issue in this case, which
does not constitute suppressed evidence, only tends to establish the guilt of Harmel, therefore the
failure to provide the explanation cannot constitute a breach of any provision of Art. 2.01.
Accordingly, there is no duty imposed by law for the disclosure at issue and the failure to
disclose cannot constitute grounds for removal.
13) Judge Kennon's gag order demonstrates on its face that it is an unconstitutional prior
restraint on free speech. The gag order at issue is a blanket prohibition on public comment or
communication with the media regarding State v. Harmel and contains no findings or recitation
of any evidence demonstrating the need for a gag order. (See Exhibit C). No evidence was
submitted at any hearing in support of the gag order. "A gag order in civil judicial proceedings
will withstand constitutional scrutiny only where there are specific findings supported by
evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants
of a just resolution of their dispute, and (2) the judicial action represents the least restrictive
means to prevent that harm. Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992, orig.
proceeding). The Davenport requirements also apply in criminal proceedings. In re Graves, 217
S.W.3d 744, 748 (Tex. App.Waco 2007, no pet.). The gag order in this case was not
supported by evidence, contains no findings, and clearly is not the least restrictive means because
it is a blanket prohibition of any communication. Accordingly, it is an unconstitutional prior
restraint of speech. "[0]ne may not be held guilty of contempt for refusing to obey a void
order." Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983). Because the gag order was
facially unconstitutional, it cannot constitute a valid order or impose a legal duty to comply.

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Therefore, Ms. Duty's statements to the reporter do not constitute a refusal to perform a duty
required by law and are not grounds for removal.
14) Ms. Duty's statements to the press merely defended against a false allegation that she
withheld evidence. The article in question quoted from a defense motion that accused Ms. Duty
of withholding evidence in the Harmel case. The statements of Ms. Duty quoted in the article
merely respond to the allegation of withholding evidence. (See Exhibit D). These statements
cannot constitute an imminent and irreparable harm to the judicial process that could deprive Mr.
Harmel of a just trial as required by Davenport in order to support a gag order. Because the
statements made in the article cannot constitute a basis for anyone to claim harm to the judicial
process or administration of justice, they cannot constitute a basis for removal from office.
15) Allowing the failure to comply with an unconstitutional gag order to constitute grounds
for removal of district attorney under 87.031 would yiolat^the constitutional of separation of
powers. Art. 2 1 of the Texas Constitution provides for the separation of legislative, executive,
and judicial branches of government. The proposal of this petition is that a judge could enter an
unconstitutional gag order and then remove the district attorney from office for failure to comply
with the unconstitutional order. Such a mle, if allowed, would grant the judicial branch control
over the executive branch in violation of the constitutional separation of powers. Accordingly,
the court should decline the petition's invitation to undertake the removal of Ms. Duty under for
failure to comply with the unconstitutional gag order.
16) Verification on information and belief is insufficient to support a suit for removal.
County Attorney Hobbs signed a verification attached to the petition stating the "facts stated in
the foregoing pleading are all within his personal knowledge, or information and belief, and are
true and correct." (emphasis added). The affidavit in support of a petition for removal must

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"positively and unqualifiedly represent the facts as disclosed in the accounting to be true and
within the personal knowledge of the affiant." State ex rel. Driscoll v. Lindsay, 877 S.W.2d 856,
857 (Tex. App.-Houston [1st Dist] 1994, writ denied). An affidavit stating that the facts are
"true and correct to the best of his knowledge" is insufficient to support a removal petition. Id.
Because the verification states that the facts are either within County Attorney Hobbs personal
knowledge or are within his "information and belief, the verification fails to "positively and
unqualifiedly represent the facts as disclosed in the accounting to be true and within the personal
knowledge of the affiant" as required for a removal petition. Accordingly, the verification is
insufficient to support a removal petition and the issuance of citation should be denied.
This removal suit is not for the protection of the public welfare.
17) As discussed above, the Court should dismiss this lawsuit on the basis that the petition
fails to state a statutorily valid basis for removal. However, even if these grounds were
sufficient, the Court should consider whether removal is necessary to "protect the interests of the
people as a whole and guard the public welfare." Wolfe, 341 S.W.Sd at 932. The basis for this
removal arises entirely from a conflict amongst counsel and between Ms. Duty and the court in
State v. Harmel. The actions of Ms. Duty, at worst, reflect an error in judgment in dealing with
opposing counsel and responding to the court in that case. Nothing in the petition alleges any
actual harm to the people as a whole or any need to remove Ms. Duty to guard the public
welfare. Accordingly, the Court should deny the application for issuance of citation and dismiss
this case.

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WHEREFORE PREMISES CONSIDERED, District Attorney Jana Duty respectfully


requests that the Court grant the relief requested herein, deny the application for issuance of
citation, dismiss the petition, and grant Ms. Duty all_such further relief to which she may be

justly entitled at law and in equity. /


Respectfully Submitted,

Daniel R. Richards

State Bar No. 00791520


drichards(%rrsfirm,com
dark Richards

State Bar No. 90001613


crichards(a)/rrsfirm,com

Richards Rodriguez & Skeith, LLP


816 Congress, Suite 1200

Austin, TX 78701
Tel 512-476-0005
Fax 512-476-1513

ATTORNEYS FOR
DISTRICT ATTORNEY JANA DUTY

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
via email and facsimile on this 15th day of August 2016 to the following counsel of record:
Dee Hobbs
Williamson County Attorney
Brandon Dakroub
First Assistant County Attorney
405 M.L.K. Street, Suite 240
Georgetown, Texas 78626
dhobbs(%wilco. org
bdakroub(a)/wilco. org

ards

Motion To Dismiss

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Exhibit A to Brief on Issuance of Citation/Motion to Dismiss


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Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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FILED
DALLAS COUNTY
10/19/2015 10:14:13 AM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-15-12517


CINDY STORMER, Individually and on Behalf of
the STATE OF TEXAS,
Plaintiff,

IN THE DISTRICT COURT OF

v.

DALLAS COUNTY, TEXAS

DALLAS CRIMINAL DISTRICT ATTORNEY SUSAN


HAWK,
Defendant.

101ST JUDICIAL DISTRICT

DEFENDANTS CONSOLIDATED MOTION TO BE HEARD; MOTION TO QUASH AS VOID CITATION


INVALIDLY ISSUED BY CLERK AND OPPOSITION TO JUDICIALLY ORDERED ISSUANCE OF CITATION;
ALTERNATIVELY, MOTION TO ABATE; MOTION TO QUASH DISCOVERY; AND MOTION TO DISMISS
REQUEST FOR TEMPORARY RELIEF
Dallas Criminal District Attorney Susan Hawk (DA Hawk) files this consolidated set
of motions directed to the original petition filed by Plaintiff Cindy Stormer, Individually and
purportedly on Behalf of the State of Texas (Ms. Stormer). To summarize, DA Hawk will
demonstrate that

Ms. Stormers request that this Court order issuance of citation on DA Hawk and
temporarily remove her from office on an ex parte basis should be denied because DA
Hawk is entitled to be heard on these important matters;

this Court should quash the citation issued by the Clerk against DA Hawk and decline
to order issuance of citation because
under the Ouster Statute the Clerk had no authority to issue citation;
Ms. Stormer has no capacity to proceed individually on behalf of the State of Texas
as she purports to do, and only the State, through a proper state official, is
authorized to request issuance of citation in an ouster suit;
Ms. Stormers allegations cannot be the basis for an ouster; and
application of the Ouster Statute to remove someone because of a federally
protected medical condition is preempted by federal law;

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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alternatively, this Court should abate this proceeding unless and until a person
authorized to represent the State joins the suit;

this Court should quash the discovery sought by Ms. Stormer because only a properly
authorized representative of the State may pursue discovery in an ouster suit, and the
medical records that Ms. Stormer seeks are an inappropriate subject of discovery under
the circumstances of this case in any event;

this Court should dismiss Ms. Stormers request for temporary removal of DA Hawk
because only an authorized representative of the State can seek such extraordinary
temporary relief and, thus, this Court lacks jurisdiction to grant Ms. Stormer
individually such relief, and because the additional statutory prerequisites for that
relief have not been met; and

DA Hawk has successfully obtained medical treatment for a common human affliction,
and Ms. Stormers attempt to stigmatize that affliction should be condemned.
I.
Motion to be Heard
Plaintiff Cindy Stormer requests both judicially ordered issuance of citation and

temporary removal of DA Hawk [o]n an ex parte basis. See Original Petition at 8 V, 9


VII. Ex parte means: Done or made at the instance and for the benefit of one party only, and
without notice to, or argument by, any person adversely interested. BLACKS LAW DICTIONARY
657 (9th ed. 2009).
Ms. Stormers extraordinary allegations and request for relief are adverse not only to
the interests of DA Hawk and the Dallas County residents who duly elected her, but, most
importantly, are an affront to all persons who suffer from treatable mental illness and who
therefore are subject to comparable stigmatization and threats to continued employment
despite their ability to seek help and recover. These broader public-policy concerns are
reflected in the highly-respected National Alliance on Mental Illnesss request that Ms.
2

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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Stormer withdraw her Petition. See attached Ex. A. Because of the profound personal and
public-policy implications of this case, this Court should decline Ms. Stormers request to
resolve the important questions presented to this Court on an ex parte basis. Fundamental
justice demands that both sides be heard.
Moreover, the evident threat of bias or prejudice militates against this Court proceeding
on an ex parte basis. By having brought suit not only in her individual capacity but also
purportedly on behalf of the State of Texas,1 Ms. Stormer improperly arrogates to herself
representation of the interests of the State in this proceeding. In a matter of this gravity, it is
critical that the State be represented by one who can fairly represent the States interests, not
her own personal interests. Yet it is undisputed that Ms. Stormer was recently fired and
attributes her firing to DA Hawk. Thus, Ms. Stormers self-interest creates, at a minimum, an
appearance of impropriety. Rather than having an unbiased and unprejudiced representative
of the State acting on the States behalf in the best interests of the State, this lawsuit creates
the appearance that the State is acting through a disgruntled ex-employee of the District
Attorneys office with a personal axe to grind, without regard to the interests of the many
citizens of this State who lead full and productive lives despite their having treatable mental
illnesses.

As explained in Section II.B, the applicable statute, Texas Local Government Code section 87.018,
expressly limits those who may bring ouster suits on behalf of the State of Texas to certain County and
District Attorneysthey may never be maintained or prosecuted by individuals like Ms. Stormer.

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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This appearance of bias or prejudice is compounded by Ms. Stormers request for ex

parte relief, which is relief for the benefit of one party only, and without notice to, or
argument by, any person adversely interested. BLACKS LAW DICTIONARY 657 (9th ed. 2009).
Any action taken by this Court should not be done for the benefit of one party onlyMs.
Stormer; it should (indeed, it must) be done for the benefit of the State of Texas. To make
balanced and reasoned decisions about what benefits the State of Texas, this Court should hear
both sides of the story, not just one.
This conclusion is reinforced by the fact that Ms. Stormer has confined herself to
allegations regarding DA Hawks conduct before she sought and obtained treatment.
Completely absent from her petition are any allegations that DA Hawk has shown the slightest
sign of incompetency or misconduct in her official duties as District Attorney since her
successful treatment. Following the usual course of providing notice and holding a hearing
will give DA Hawk the opportunity to be heard and demonstrate why the relief sought by Ms.
Stormer should not be granted, but rather the relief sought by DA Hawk should be granted.
As demonstrated below, not only do fundamental considerations of justice and public
policy compel this result, but the governing statutory scheme does as well.
The Ouster Statute precludes ex parte issuance of citation.
Ms. Stormers petition seeks the ex parte issuance of citation to DA Hawk. Petition at
8, V. But in a matter of this gravity it is critical that the lawsuit proceed in accordance with
orthodox procedural and substantive law. Applying these instruments of law, embodied in the
Ouster Statute, Ms. Stormers request for relief must be denied.
4

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County officers may be removed only pursuant to the specific statutory procedures of
Chapter 87, subchapter B of the Local Government Code. While an ouster proceeding is a civil
case, these rules are not the same as the rules governing other civil cases, Meyer v. Tunks, 360
S.W.2d 518, 520 (Tex. 1962), although the rules and practices applicable in other civil cases do
apply, as much as possible, given the specific requirements of the Ouster Statute. TEX. LOC.
GOVT CODE 87.018(b).
One of the specific differences between a statutory removal case and a regular civil case
is in the issuance of the citation to the defendant. In a regular civil case, issuance of the citation
is a ministerial act performed by the district clerk upon request. TEX. R. CIV. P. 99a. But in a
statutory removal case, the citation process works differently.
After a petition for removal is filed, the person filing the petition shall apply to
the district judge in writing for an order requiring a citation and a certified copy
of the petition to be served on the officer.
TEX. LOC. GOVT CODE 87.016(a).
This application by the petitioner triggers an exercise of discretion by the trial court,
which has the authority to either refuse or grant the citation:
If the judge refuses to issue the order for citation, the petition shall be dismissed
at the cost of the person filing the petition. The person may not take an appeal
or writ of error from the judges decision. If the judge grants the order for
citation, the clerk shall issue the citation with a certified copy of the petition.
The judge shall require the person filing the petition to post security for costs in
the manner provided for other cases.

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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Id. 87.016(c). In either case, the person who filed the petitionMs. Stormeris liable for
costs: those related with the dismissal of the petition if the judge refuses to issue the citation
and security for costs if the judge issues the citation. Id.
Should this court exercise its discretion to refuse to order the citation, that exercise of
discretion acts as a final dismissal of the petition and is not subject to appeal. See Reger v.

State, No. 02-12-00178-CR, 2014 WL 4656632, at *4 (Tex. App.Fort Worth Sept. 18, 2014,
pet. refd) (mem. op.) (The trial courts refusal to proceed on Appellants petition for removal
was within the trial court's discretion and is not appealable.); Mendoza v. Ochoa, No. 13-0800588-CV, 2009 WL 1396135, at *1 (Tex. App.Corpus Christi-Edinburg May 21, 2009, pet.
denied) (mem. op., per curiam) (This Court does not have jurisdiction. An appeal may not be
taken from a dismissal of a petition to remove an elected judge where the trial court refused to
issue citation. Accordingly, appellant's motion to proceed is DENIED and the appeal is hereby
DISMISSED FOR WANT OF JURISDICTION. (citations omitted)); see also Duncan v.

Peabody, No. 09-05-00227-CV, 2005 WL 1906965, at *1 (Tex. App.Beaumont Aug. 11, 2005,
no pet.) (mem. op.) and Burks v. Yarbrough, No. 14-02-00958-CV, 2002 WL 31835504, at *1
(Tex. App.Houston [14th Dist.] Dec. 19, 2002, no pet.) (not designated for publication) (both
to same effect).
Because the trial court has discretion to either refuse or grant the application to issue
the citation, it is imperative that DA Hawk be heard so that this Court can make a reasoned
decision about how to exercise that discretion. DA Hawks right to be heard is particularly
important given that the trial courts decision may be case dispositive in her favor. In that
6

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regard, some of DA Hawks arguments can be analogized to a motion under Federal Rule of
Civil Procedure 12(b)(6)establishing that Ms. Stormers petition fails to state actionable
claims. By contrast, Ms. Stormer seeks to deprive DA Hawk of the right to make those casedispositive arguments by presenting her application for issuance of citation ex parte. Nothing
in the Local Government Code, and no authority cited by Ms. Stormer, suggests that is proper.
Moreover, Ms. Stormer and her counsel have widely released their petition and
affidavits to the media, where the story has garnered a great deal of coverage. Thus, while DA
Hawk has not been served with a valid citationand cannot be officially served until this
court makes a rulingshe cannot help but be aware of the petition, its allegations, and its
demandsincluding the application for this Court to issue the citation. So, given their actual
awareness of these proceedings, despite their lack of procedural notice, it makes no sense to
exclude DA Hawk and her counsel from the courtroom when this Court hears Ms. Stormer
and her counsel on their application.
Accordingly, DA Hawk respectfully requests a hearing so that she can present the
reasons, set forth in Section II below, why the court should refuse to issue the citation and
should instead dismiss the petition.
The Ouster Statute precludes ex parte temporary removal.
The petition seeks the immediate, ex parte temporary removal of an elected
representative of the people of Dallas County. Petition at 9, VII. But the Ouster Statute does
not permit that relief.

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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1.

Stormers motion for DA Hawks temporary removal is not ripe.

The Local Government Code gives the trial court judge discretion to temporarily
suspend the challenged officer only if the judge has exercised discretion to order the issuance
of citation and after that initial exercise of discretion.
After the issuance of the order requiring citation of the officer, the district judge
may temporarily suspend the officer and may appoint another person to perform
the duties of the office.
TEX. LOC. GOVT CODE 87.017(a). So, at a minimum, Ms. Stormers motion for DA Hawks
temporary suspension is not yet justiciable.
2.

Additional statutory prerequisites to temporary suspension have not


been met.

The Ouster Statute recognizes that the officials sought to be removed do work that is
critically important for the public good in the counties they serve. Accordingly, they may not
be suspended before arrangements have been made for a suitable temporary replacement and
security by which that replacement may pay damages if a jury ultimately finds the grounds for
the officers removal to have been insufficient or untrue.
The judge may not suspend the officer until the person appointed to serve
executes a bond, with at least two good and sufficient sureties, in an amount
fixed by the judge and conditioned as required by the judge. The bond shall be
used to pay damages and costs to the suspended officer if the grounds for
removal are found at trial to be insufficient or untrue.
TEX. LOC. GOVT CODE 87.017(b).2

There are additional requirements for the officers ultimate recovery on the bond. See id.

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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Ms. Stormers petition merely alleges that, There is an attorney in Dallas County, Texas
qualified to hold said office on a temporary basis . . . . Petition at 9, VII. But to satisfy the
statute, that qualified attorney would have to be identified and vetted and agree to serve and
would have to qualify for and obtain the required bond (with at least two sureties) before this
Court could suspend DA Hawk on even a temporary basis.
Even if this Court were properly to order the issuance of citation, the process of
identifying and selecting potentially qualified temporary replacements has not even begun.
For this reason as well, Ms. Stormers motion for immediate, ex parte relief is not ripe.
Finally, DA Hawk knows the demands of her position and, even assuming a temporary
hiatus, will return to lead the DAs office when her rights are vindicated at trial. Accordingly,
shemore than anybody elsemust be heard in any and all proceedings regarding a
temporary replacement if the court exercises its discretion to proceed down that path. Given
the fatally defective procedural deficiencies in Ms. Stormers filing, it is not yet necessary for
DA Hawk to respond on the merits to the allegations regarding her competency. However, if
and when this case ultimately proceeds to trial, DA Hawk can and will show with objective,
unbiased evidencecontrary to the caricature painted by Ms. Stormerthat DA Hawk is
presently in good health, and has been at work performing the duties of her office
exceptionally.
For all of these reasons, deciding whether there should be a temporary replacement
and who it might be on an ex parte basis simply makes no sense.

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


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Page 10 of 24

3.

Stormers motion for ex parte removal is not allowed by the Ouster


Statute.

Although ouster cases are not handled like other civil cases because of the specific
statutory framework, they do operate like other civil cases, as much as possible, where the
statute does not require a different procedure. Thus, we can look to the Rules of Civil
Procedure regarding temporary injunctions for guidance here, since the case law is not well
developed.
Ms. Stormers request for ex parte temporary relief is like a request for a Temporary
Restraining Order, except that she wants it to operate like a Temporary Injunction. She cannot
have it both ways. The Rules of Civil Procedure permit parties to obtain TROs at ex parte
hearings only when:

it clearly appears by affidavit or from a verified petition that immediate and irreparable
harm will result before notice can be served and a hearing had;

the TRO must define the injury, state why it is irreparable, and explain why there was
not time for notice and hearing;

a TRO may not exceed 14 days plus one 14-day extension for good cause;

notice of a temporary injunction hearing on the earliest possible date certain, taking
precedence over all other matters, must be given; and

the party against whom the TRO was entered may obtain a hearing on 2-days notice
to seek its dissolution or modification.

TEX. R. CIV. P. 680. Ms. Stormer seeks the immediate ex parte removal of DA Hawk from her
position for the entire length of trial with none of these procedural protections. Essentially,

10

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she is seeking a temporary injunction that will alter rather than maintain the status quo,3
without notice or the opportunity to be heard, in violation of Rule 681. No temporary
injunction shall be issued without notice to the adverse party. TEX. R. CIV. P. 681. Her request
should be denied.
II.
Motion to Quash as Void Citation Invalidly Issued by Clerk
and Opposition to Judicially Ordered Issuance of Citation
This Court should quash as void the citation invalidly issued by the Clerk.
On October 13, 2015, the same day the petition was filed, the Clerks office apparently
issued a citation pursuant to ordinary ministerial practices under Texas Rule of Civil Procedure
99a. See attached Ex. B. But, as demonstrated above, a lawsuit for ouster is not an ordinary
proceeding and is governed by a unique set of procedures under which the trial court has
exclusive discretion to either order the issuance of citation or refuse to do so. See TEX. LOC.
GOVT CODE 87.016. Plaintiffs own petition recognizes this fact through its Motion to Issue
Citation. Petition at 8, V. Accordingly, DA Hawk requests that the Court quash the citation
that was invalidly issued as void and direct the Clerk to remove it from the Courts docket.
And, for the reasons set forth below, this Court should decline Ms. Stormers motion for this
Court to order issuance of citation.

A temporary injunctions purpose is to preserve the status quo of the litigations subject matter pending
a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Where, as here, the
statutory framework permits a temporary framework contrary to this norm, that is all the more reason to
require notice and an opportunity to be heard.

11

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Ms. Stormer lacks authority to request issuance of citation.


The Local Government Code makes clear that the proceedings connected with a suit
for the removal of an officer like DA Hawk must be conducted by a proper representative in
the name of the State of Texas. Section 87.018 specifically provides that the action must be
pursued by either the county attorney from the county of suit, the district attorney from the
county of suit, or a county or district attorney from an adjoining county selected by the
commissioners court. TEX. LOC. GOVT CODE 87.018(d)-(f). Ms. Stormer and her attorneys
meet none of these requirements.
Moreover, Ms. Stormer has no capacity to proceed individually on behalf of the State
as she purports to do. See Petition at 1. She may request the action be initiated, TEX. LOC.
GOVT CODE 87.015, but the decision to maintain or prosecute the action, including the
decision to seek citation, discovery or trial are all decisions made by the State and its authorized
representative as a matter of prosecutorial discretion.
The Texas Supreme Court decided this issue as far back as 1955, holding that ouster
suits belong to the public and cannot be maintained by individuals without joinder by a proper
state official:
In order that the district judge and the district court may have jurisdiction to
hear and determine the cause, it is necessary that the parties bringing the action
possess the legal capacity to institute and maintain the suit. Individual citizens
have no private interest distinguishable from the public as a whole and have no
right to maintain an ouster suit without being joined by a proper state official.

Garcia v. Laughlin, 155 Tex. 261, 265, 285 S.W.2d 191, 194 (1955) (orig. proceeding) (citations
omitted); see also State ex rel. Dishman v. Gary, 163 Tex. 565, 568-69, 359 S.W.2d 456, 458
12

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(1962) (citations omitted) (holding The remedy of ouster is one which belongs to the state,
in its sovereign capacity, to protect the interests of the people as a whole and guard the public
welfare by ousting incumbents of office who wrongfully hold to the injury of the public. In
such proceeding the district attorney is a proper representative of the State and by virtue of
his office has control of the prosecution of the cause.).
This rule was reiterated by the Supreme Court as recently as 2011 when it held:
But [i]ndividual citizens have no private interest [in ouster] distinguishable
from the public as a whole.... Rather, [t]he remedy of ouster is one which
belongs to the state, in its sovereign capacity, to protect the interests of the
people as a whole and guard the public welfare.... Without joinder of the proper
state official, the court does not have jurisdiction to hear and determine the
cause....

In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (orig. proceeding; per curiam) (mem.).
Because Ms. Stormer and her attorneys lack authority to maintain or prosecute this
action to remove DA Hawk, including the request that this court order issuance of the citation,
the Court lacks jurisdiction to hear and decide the matter and should deny her Motion to
Issue Citation, and dismiss the petition.
Stormers allegations cannot be the basis for ouster.
Tellingly, all of the allegations in Ms. Stormers petition are based on alleged prior
conditions and conduct. They ignore that DA Hawk sought treatment and, as a result, is now
effectively discharging the duties of her office. As demonstrated below, preexisting conditions
cannot be the basis of an ouster, nor can allegations of purportedly improper personnel
decisions in the past.

13

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1.

Preexisting depression and ADD cannot be basis of ouster.

The statutory provision Ms. Stormer invokes says this:


Incompetency means :... (C) unfitness or inability to promptly and properly
discharge official duties because of a serious physical or mental defect that did

not exist at the time of the officers election.


TEX. LOC. GOVT CODE 87.011(2)(C) (emphasis added). DA Hawk has been afflicted in the
past with ADD and depressioneach of which is a treatable mental illness, not a serious . . .
mental defect. Moreover, Hawk suffered from these conditions before the voters elected her
as DA. Thus, even if these treatable conditions could be characterized as serious . . . mental
defectswhich the mental health community assiduously disputesit cannot be said that
they did not exist at the time of the officers election. Thus, as a matter of law, they cannot
be employed now to claim incompetency compelling ouster. For this additional, independent
reason, the Court should not issue citation.
2.

Complaints about personnel decisions cannot be the basis for ouster.

Ms. Stormer repeatedly claims that eight specific personnel decisions were improper.
These include her own firing, which, as addressed above, demonstrates why she cannot
properly represent the interests of the State of Texas impartially.
The District Attorney is empowered to make personnel decisions within the office.
Alleged improper firing or bad personnel decisions are not one of the exclusive grounds to oust
a public official. See TEX. LOC. GOVT CODE 87.013. And for good reason. Were it otherwise,
any disgruntled public employee, upset at his or her own termination, could file an ouster
proceeding on behalf of the State against the official responsible for the firing. Ms. Stormer
14

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points to no law supporting the proposition that termination of an employee is grounds for
ouster.
Application of the Ouster Statute to remove someone because of a federally
protected medical condition is preempted by federal law.
As a matter of public policy, the United States and Texas prohibit discrimination,
stigmatization or punishment of people with mental illness. That policy is codified in the
Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 et seq., and Texas law, TEX.
LABOR CODE 21.001 et seq., which prohibit discrimination against individuals who are
dealing with mental illness and require certain accommodations by employers. See 29 C.F.R.
1630.2(h) (applying ADA to any mental or psychological disorder, such as ... mental
illness); TEX. LABOR CODE 21.002(6), (11a) (applies to any mental impairment that
substantially limits a major life activity, such as work).
The ADA was passed, among other reasons, because, after years of research and
hearings, Congress found that mental illness does not diminish a persons right to participate
in society but the mentally ill were historically precluded from doing so because society tends
to isolate and segregate them.

Congress found that unfair discrimination, which often

precludes independence, costs the United States billions of dollars in unnecessary costs and
lost productivity. 42 U.S.C. 12101(a). Accordingly, it passed the ADA to invoke the sweep
of congressional authority to provide a clear national mandate and consistent, enforceable
standards for the elimination of discrimination against people with mental illness. Id.

15

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12101(b). And Texas passed its anti-discrimination laws to provide for the execution of the
policies embodied in the ADA. TEX. LABOR CODE 21.001(3).
Under this sweeping legislation, not only are discriminatory employment policies
unconstitutional, so too are discriminatory state laws. See, e.g., Hargrave v. Vermont, 340 F.3d
27 (2d Cir. 2003) (state statute invalidating durable powers of attorneys executed by those who
are subsequently determined to be mentally ill permanently enjoined because it facially
violated ADA); Hoback v. City of Chattanooga, No. E2001-00484-COA-R3-CV, 2012 WL
2974762, at *5 (Tenn. App. July 20, 2012) (discussing provision of Tennessee Code that is
unenforceable pursuant to a consent decree entered into with the Justice Department after it
sued the state alleging that several of its statutes violated the ADA by excluding persons with
certain types of mental disorders from certain types of employment).
Ms. Stormer seeks to enforce the Ouster Statute in just such an impermissible,
discriminatory fashion. If DA Hawks ADD or depression constitutes a mental illness subject
to ADA or Texas Labor Code protection, then she cannot be discriminated against by having
her job taken from her under the Ouster Statute and she must be granted reasonable
accommodations. If they do not, then she is not suffering from a serious physical or mental
defect permitting ouster. See TEX. LOC. GOVT CODE 87.011(2) (C). Either way, the Ouster
Statute does not permit the outcome Ms. Stormer seeks.

16

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III.
Alternatively, Motion to Abate
Even if this Court were to order the issuance of citation, the Court should nonetheless
abate this lawsuit unless and until a person authorized to represent the state joins the suit. As
explained in Section II.B, Ms. Stormer lacks the authority to maintain or prosecute this action
in the name of the State. Only a statutory representative of the State may do so, and in this
case, the only proper representative is the county attorney of an adjoining county as selected
by the commissioners court of Dallas County. See TEX. LOC. GOVT CODE 87.018 (d)-(f).4
Ms. Stormers lack of authority to represent the State of Texas disqualifies her from
taking any action to maintain or prosecute this ouster suit beyond the filing of her petition
according to the strict requirements of Local Government Code section 87.015(c).

As

explained in Sections I.A and II.B, she lacks authority to seek ex parte issuance of an order of
citation. As explained in Section I.B, she cannot obtain ex parte the temporary suspension of
DA Hawk pursuant to any procedure. And as explained in Section IV, below, she lacks
authority to pursue discovery of any kind.
For all of these reasons, if the Court refuses to quash the citation or exercises its
discretion to order issuance of citation on DA Hawk, it should immediately abate all
proceedings in this action until such time, if any, that a proper State official joins this action.

Subsection (d) cannot apply because Dallas County does not have a County Attorney. Subsection (e)
cannot apply because this is not a proceeding to remove a County Attorney.

17

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IV.
Motion to Quash Discovery
Ms. Stormers Petition seeks the Disclosures required by Texas Rule of Civil Procedure
194.2. Petition at 9 VII.5 She has also served Interrogatories seeking similar information.

See attached Ex. C.


As explained in Section II.B, Ms. Stormer lacks the authority to represent the State of
Texas in this ouster action. That means that she lacks the authority to seek discovery from DA
Hawk. The Texas Supreme Court decided this issue in 2011. See In re Wolfe, 341 S.W.3d at
932. There the Court reiterated the rule that [i]ndividual citizens ... have no right to maintain
an ouster suit without being joined by a proper state official. Id. (quoting Garcia, 285 S.W.2d
at 194). The specific question the court had to decide was whether, without joinder by a proper
state official, individual citizens (members of the Harris County Department of Education)
could obtain pre-suit discovery in support of an ouster suit pursuant to Rule 202. Id.
Wolfe objected to the discovery requests, arguing that only the county attorney could
seek discovery that might lead to his ouster under Section 87.018(d), providing that the
county attorney shall represent the state in a proceeding for the removal of an officer .... Id.
The Court noted that the county attorney did not join in the request for pre-suit discovery.
Rejecting the departments argument that their Rule 202 request preceded the actual ouster
proceedings, so the county attorneys joinder was not required, the Court said,

The Petition contains two Sections captioned VII on page 9. This section refers to the second one
Requests for Disclosures.

18

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But pre-suit discovery is not an end within itself; rather, it is in aid of a suit
which is anticipated and ancillary to the anticipated suit. To prevent an endrun around discovery limitations that would govern the anticipated suit, Rule
202 restricts discovery in depositions to the same as if the anticipated suit or
potential claim had been filed. In an ouster action, prosecuted in the State's
name, the county attorney would control discovery from the official sought to
be removed. The Department cannot obtain by Rule 202 what it would be
denied in the anticipated action.

Id. at 933 (emphasis added; citations omitted). The Supreme Court conditionally granted the
mandamus petition, overruling the trial courts order granting the improper discovery.
Likewise in this case, only the county attorney may seek discovery from DA Hawk
not Ms. Stormer. The scope and subject matter of that discovery will fall solely within that
county attorneys prosecutorial discretion. Ms. Stormers discovery requests must be quashed.
Moreover, these discovery requests are a transparent attempt by Ms. Stormer to obtain
copies of DA Hawks protected health information (PHI), including privileged medical
records and bills, about which Ms. Stormer (not DA Hawk) has made allegations. Rules
194.2(j) and (k) require a plaintiffi.e., one who voluntarily initiates a lawsuitto disclose
medical bills and records regarding a physical or mental injury and damages about which the

plaintiff is making claims. TEX. R. CIV. P. 194.2(j), (k). That is different from this situation
where a plaintiff is making claims against a defendanti.e., one involuntarily made a party to
a lawsuitand asserting allegations about the defendants alleged mental defect and seeking
discovery of the defendants medical records and bills to support those allegations. Ms.
Stormers petition includes no authority suggesting that she is entitled to DA Hawks PHI
pursuant to rules of civil procedure that, on their face, do not apply. Nor has she alleged or
19

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


PAGE 20
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proven any exception to the physician-patient privilege or HIPAA privacy laws that would
allow her to discover these materials. Accordingly, and additionally, the discovery should be
quashed at least to the extent it seeks PHI from DA Hawk.
V.
Motion to Dismiss Request for Temporary Relief
DA Hawk has explained in Section II.B that Ms. Stormer lacks the authority to move
for the temporary suspension and replacement of DA Hawk, because only a person qualified
to act in the name of the State of Texas pursuant to Texas Government Code section 87.018
may do so. Moreover, DA Hawk has explained in Section I.B that Ms. Stormers motion for
temporary removal is premature because (1) this court has not yet decided to exercise its
discretion to order issuance of citation and (2) the statutory bonding requirements for a
temporary replacement DA have not occurred. For these reasons, Ms. Stormers motion for
temporary relief, Petition at 9, VII, should be dismissed.
Conclusion and Prayer
For all of the foregoing reasons, this Court should decline to conduct any proceedings
in this case ex parte, as Ms. Stormer has requested, and should decline to grant Ms. Stormer
the relief she seeks. Instead, this Court should hear and duly consider the arguments of all
parties, and grant DA Hawk the relief she seeks pursuant to the various motions presented
above.

20

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


PAGE 21
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Respectfully submitted,
/s/ Daniel K. Hagood
DANIEL K. HAGOOD
State Bar No. 08698300
dhagood@fhsulaw.com
FITZPATRICK HAGOOD SMITH &
UHL LLP
Chateau Plaza Suite 1400
2515 McKinney Avenue
Dallas, Texas 75201
Telephone: (214) 504-1133
Facsimile: (214) 237-0901

WALLACE B. JEFFERSON
State Bar No. 00000019
wjefferson@adjtlaw.com
DOUGLAS W. ALEXANDER
State Bar No. 00992350
dalexander@adjtlaw.com
JENNIFER JOSEPHSON
State Bar No. 11031450
jjosephson@adjtlaw.com
ALEXANDER DUBOSE JEFFERSON &
TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303

/S/ Charla G. Aldous


CHARLA G. ALDOUS
State Bar No. 20545235
caldous@aldouslaw.com
BRENT R. WALKER
State Bar No. 24047053
bwalker@aldouslaw.com
HEATHER L. LONG
State Bar No. 24055865
hlong@aldouslaw.com
ALDOUS\WALKER LLP
2311 Cedar Springs, Suite 200
Dallas, Texas 75201
Telephone: (214) 526-5595
FACSIMILE: (214) 526-5525
ATTORNEYS FOR THE HONORABLE SUSAN HAWK,
DISTRICT ATTORNEY FOR DALLAS COUNTY
21

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CERTIFICATE OF SERVICE
On October 19, 2015, I electronically filed this motion with the Clerk of the Court
using the CM/ECF filing system, which will send notification of such filing to the following
(unless otherwise noted below).
Mark A. Haney
State Bar No. 08908480
mark@pulshaney.com
W. Kelly Puls
State Bar No. 16393350
kelly@pulshaney.com
PULS HANEY, P.L.L.C.
300 Burnett Street, Suite 160
Fort Worth, Texas 76102
Telephone: (817) 498-9911
Facsimile: (817) 332-1333

/s/ Brent R. Walker


Brent R. Walker

22

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


Page 23 of 24

CAUSE No. DC-15-12517

STATE OF TEXAS, ex t-el. ClNDY STORM 1-:K,

PlaintiK
IN THE DtSTRICf COURT OF
V.

DALLAS COUNTY, TEXAS


SUSAN HAWK, CRIMINAL DISTRICT A'lTtfRNRY
101;1T]UD1CIAI.. DISTRICT

OF DAI.IJYS COUNTY, TEXAS,


Defendant.

ORDER DENYING ISSUANCE OP CITATION AND DISMISSING CASE

On January 8,2016, the Court heard the following matters;


1. Relator's Motion to Issue Citation pursuant to Texas Local Government Code

87,016 as requested by the State of Texas in it's Second Amended Petition far
Removal;

2. Defendant's Motion to Quash the Citation Issued by ihe Clerk on October 13,
2015; and
3, Defendant's Opposition co Citation and Request for Dismi-isal under Texas Local
Government Code 87.016,
After considering the pleadings, the Court's file, and arguments of counsel, the Courr
hereby orders as follows;

1. The October 13, 2015 Citation issued by the Clerk is QUASHED.


2, The State's and Relator's requests for issuance of citation under Texas Local

Government Code 87.016(a) are DENIED.

ORDER DHXYING ISSUANCE Ol-' CITATION ANB Dl.SMISSINC; CASE Psf.c 1 of 2

^(^
0-7 (

Exhibit B to Brief on Issuance of Citation/Motion to Dismiss


Page 24 of 24

3. Th6 above cause is DISMISSED WITH PRI';}UDICE ai the coiit of Relator.'


This Order k Final and roay not be appealed or subjected to a writ of error as declared by

LOCAL Gov't CODE 87.016 (c),

f/

Dated; January IS.. 2016.

/)^^ &/^^
H9N. DAVID PfiEI'L.ES,

Judge Sitting by Assignment hy Qrder of the


Texas Supreme Court for this roacrcf in the

tJie 101" Judicial DisLrict Court of Dallas


County

Approved as ro ToTTft:
.'"'

./

^..^ ..-""^ .-'..-.. ..^"''

-/ ...^^>-~" /' .,,-' ;../-' y^t.

^Ch^&

Patrick M, Wikon

Mark A. Haney

County Altprney - Ellis Coi-mty, Texas

W. Kclly Puls

ATTOR?-KY FOR THE STATE OF'f'KXA.S

ATTOKNKYS KOR RELATOR ClNDV


STOKMP.R ;

and

/?/ Daniel .K.l-lagppA.


Daniel K. Hagood
Charla G. Aldous
Brent R. Walker
Douglas W. Alexander
Jennifer jose'phson
Arj'ORNRYS THE DEFENDANT DlSTKICT ATI'ORNKY SUSANHAWK

' ,$'i>('TEX. 1.,<XAI. (5oy. CORK ij 87.016(c) ("If thi;'jiiilgc rcfiises in issue the onkr for ciration, the peitlion shall be
dismisifd ai the rose of thf (lorsoi) (ilinK ti'ir imition.").
OUDt'.R Dl'NYING ISSDANCE O!1' CH-A'riON AND DISMISSING CASL

Page 2 of 2

Exhibit C to Brief on Issuance of Citation/Motion to Dismiss


Page 1 of 1

Exhibit D to Brief on Issuance of Citation/Motion to Dismiss


Page 1 of 2

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American -Statesman Staff |iy:.,ifei

Williamson prosecutors accused

of withholding evidence from


hearing
011:59a,m. Wednesday, May 6,2015 | Filed in: Crime

MyStatesman

A hearing on whether or not the Williamson County district attorney's office


withheld evidence before a capital murder trial was rescheduled Tuesday after

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defense attorneys said prosecutors withheld information for the hearing.


The hearing in the case of Crispin Harmel had been set for Thursday but was
moved to May 29 after defense attorneys asked for more time. Their motion for a
continuance alleges that prosecutors withheld evidence again by giving defense
attorneys only 1 percent of the results they had requested in April from a search of
District Attorney Jana Duty's computer.
Duty said Wednesday that the district attorney's office has never withheld evidence
in the case.

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Prosecutors released a report to the


defense April 24 that showed there were

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about 300 hits on certain keywords on


Duty's computer, the motion said.
ADVfcRTISING

A defense expert learned Monday


from the detective who did the computer search that there were 29,000 hits on
the keywords requested, according to the motion.
Duty said Wednesday that the detective doing the search for 10 keywords on her
computer didn't have seven to 10 days to download the 29,000 hits, so he just sent

f ^t \^ COMMEM

Exhibit D to Brief on Issuance of Citation/Motion to Dismiss


Page 2 of 2
a sampling of them. "One phone call to Acevedo (the detective) would have cleared
this issue up, but instead, the defense attorneys crank out another ridiculous
motion claiming that we 'withheld' roughly 28,600 pieces of evidence," Duty said.
Harmel is accused of strangling Jessika Kalaher in
2009 in Cedar Park after following her out of a Walmart.
Harmel's first trial was declared a mistrial in May 2014.
Halfway through it, prosecutors discovered software
that would put time stamps on a crucial surveillance
video from the Wal-Mart. The time stamps were at odds
with the defense's timeline of events,
He was scheduled to be retried March 30 before
defense lawyers filed court documents alleging that the
district attorney's office had withheld time stamp
information from the video, which violated Harmel's
right to due process. The defense also alleged in other
court documents that Duty knew the time stamps were
on the video before the first trial because a former court
employee Royger Harris said he saw them when he watched the video with
her.

"Although Royger downloaded the correct player to my computer, I was using the
default player on my computer, not realizing there was a difference," Duty said
Wednesday.
The motion for continuance filed Tuesday said that the results of the computer
search showed the program used to view the video with time stamps "was used on
Ms. Duty's computer on several different dates including as late as February 27,
2014."

The trial started in late April 2014,


Duty also said Wednesday that the defense was given the correct video with the
time stamps on it at the beginning of the trial but they didn't know how to use the
player to show the time stamps.
"When we discovered, during the first trial, that there was a better way to watch the
footage (with the correct player) we did not tell the defense attorneys, as they had
the correct player all along," Duty said.
District Judge Rick Kennon will consider during the hearing May 29 an allegation
from one of Harmel's attorneys that Harmel cannot be tried again because that
would be double jeopardy.
Double jeopardy "bars a retrial where the prosecutor's conduct was intentional in
provoking the request for a mistrial," according to court documents filed by the
defense attorney.

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