Professional Documents
Culture Documents
416-81913-2015
NO. 416-82148-2015
NO. 416-82149-2015
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qualification for grand jury service not included within the statute.
Qualifications of a grand juror are set forth in Article 19.08 of the Texas
Code of Criminal Procedure. The Court shall test the qualifications of the grand
jurors before being impaneled by interrogation under oath by the Court or under
his direction, touching his qualifications. TEX. CODE CRIM. PRO. ART. 19.2119.22. The statutory questions are:
1.
Are you a citizen of this state and county, and qualified to vote
in this county, under the Constitution and laws of this state?
2.
3.
4.
come over and have a seat on the left-hand side over here if youre
willing to serve. Just, yeah, the left, kind of the left of that wooden
post would be good enough. Yes, maam. That's perfectly fine.
Anywhere in that area right there is fine. Here is what were going to
do to try to save everybody a little bit of time. This is a little bit of a
different way of impaneling panels than weve done in the past.
Since we have these people which by the way, yall should give
them a round of applause, if youre willing to serve on the Grand Jury.
There are still a couple of hoops we have to jump through before I can
say all of yall to go home, but I need to have some time to talk and
get the list of names here and do a little bit of work with the
people willing to serve. So instead of talking to each of you
individually, yall need to sit down, relax for a minute, let me see if
we have enough people here who are qualified and dont meet any of
the issues we need to address. And if that works, will be able to get
our Grand Jury from the people here to my left. So it will involve
all of yall sitting around here a little bit. Relax for a second, let us
work here on these people, and well be back in just a second.
(Exh.A at pp. 10-11) (Emphasis Added).
After inquiring about the various parts of the county where the volunteers
lived, Judge Oldner qualified them individually, beginning [a]ll right. Those of
you willing to serve, I have some more specific questions Im going to ask you
individually. Id. at 15. He examined seventeen regarding the four statutory
qualifications asking four questions of each. Id. at 15-32; TEX. CODE CRIM. PRO.
ART. 19.23. Later, he impaneled a grand jury exclusively from this group,
recognizing because of the willingness of the persons who are going to serve, we
are going to be able to excuse the rest of you at this time. Id. at p. 40. The oath
was administered to the fourteen thus qualified volunteers.
All reported cases, including Becker, addressing irregularities in grand jury selection appear to
deal with the commissioner system, which is no longer the law and was not the method by which
this grand jury was selected.
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
6
public record. The Order includes grand jurors names as being banned from
disclosure. This category is not found in the statute that Judge Oldner cites as
authority. See TEX. CODE OF CRIM. PRO. ART 19.42. By doing so, Judge Oldners
actions hamper Paxtons ability to challenge the Grand Jury array. There was no
precedent for the issuance of this Order in Collin County.
On April 13, 2006, then Attorney General of Texas Greg Abbott addressed
this exact issue in a written opinion demonstrating the impropriety of Judge
Oldners Order. (See Ex. C). In his analysis, Governor Abbott wrote,
Although the proceedings of a grand jury - once it is organized - are
closed to the public, see id art. 20.011 (enumerating those who may be
present during grand jury proceedings); id. art. 20.02(a) (The
proceedings of the grand jury shall be secret.), there are no similar
provisions that release a court during the grand jury organization
process from the general rule articulated in article 1.24 of the
Code of Criminal Procedure that the proceedings and trials in
the courts shall be open to the general public, id. art. 1.24.
Indeed, article 19.27 expressly includes the public in the grand
jury organization process by permitting any person [to]
challenge the array of jurors or any person presented as a grand
juror. See id art. 19.27; see also id. arts. 19.21-.26 (requiring
court to test juror qualifications and present qualified jurors for
impanelment). Therefore, the grand jury organization process is
conducted in open court. As a practical matter, then, grand jurors
identities will become public during the grand jury organization
process. Consequently, grand jury lists do not contain personal
information and must fall outside article 19.42s bounds. See
GEORGE E. DIX & ROBERT O. DAWSON, 41 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE 18.06 (2d. ed. 2001) (stating
that the identity of a grand juror is public information despite article
19.42s language because the qualifications of potential grand jurors
are tested in open court, among other things).
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
7
n.2 from the A.G. Opinion, For both civil and criminal cases, we presume that the courts
records and proceedings are open to public scrutiny. See Ashpole, 778 S.W.2d at 170; TEX. CODE
CRIM. PROC. ANN. art. 1.24 (Vernon 2005).
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
8
protected by his June 25th Order and that he had lied to them regarding their
secrecy now that a list was distributed in violation of his Order. Judge Oldners
appearance before the Grand Jury was impermissible.
Paxton believes at least one witness will testify that Judge Oldner entered
the grand jury room twice while the grand jury was meeting and in session on July
7, the very same day Paxton was indicted. This action is improper because the
grand jury judge is not allowed in the grand jury room. See TEX. CODE CRIM. PRO.
ART. 20.011. Rather, when grand jurors have questions, they are either to go to the
judges courtroom or submit written questions. Id. at ART. 20.06. A judge is not
excepted from Art. 20.02s secrecy requirement. By law, even when seeking
guidance from a Court, the grand jurors shall so guard the manner of propounding
the manner of their questions as not to divulge the particular accusation before
them. TEX. CODE CRIM. PRO. ART. 20.06.
TEX. CODE OF CRIM. PRO. ART. 20.011 authorizes only certain persons to be
present in the grand jury room while it is conducting proceedings. These persons
include the grand jurors, bailiffs, state attorneys, witnesses interpreters (if
necessary) and stenographic and/or video recording operators. Id. The presiding
judge is not listed in Art. 20.011. Therefore the judges presence in the grand jury
room while it is conducting proceedings is unlawful and wholly without authority
or authorization. See id.
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
9
10
(See Exhs.
E,M)3.
Clearly, the July 7, 2015, Indictment bears the Clerks signature. Contrary
to Texas law and the District Clerks procedures, Judge Oldner secreted the
Indictment for the next few weeks. (Exh. E). Curiously, the July 7 Indictment
bears a document header of 7/28/15. (Exh. D) The identical 7/28/15
document header is also found at the top of each page of Indictments 2 and 3
which is the day those indictments were returned by the Grand Jury. (Exh. F).
The Clerk described his/her encounter with Judge Oldner on the afternoon of
July 7, 2015:
3
Original documents obtained from the District Clerks office are unredacted. Because of the
nature of these proceedings, Counsel do not wish to publish the names of the involved employees
at this juncture to avoid intrusion into their private lives.
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
11
11
. . . .I met Judge Oldner at the east door and he entered the office with
two other gentlemen he introduced as a Texas Ranger and Special
Prosecutor. . . .Judge Oldner told me he had just accepted a sealed
indictment from the Grand Jury and needed to file it discreetly. He
had it in a brown envelope about 9x12 in size. He asked me to file
mark the indictment and when I was ready to stamp it he said he was
only going to pull it out of the envelope far enough for me to see that
it was an indictment but he could not reveal the name or any other
information concerning the indictment just yet, as it was sealed. I
could see a blank for a cause number to be added and The State of
Texas. I did not see any other text of the document, but believed it to
be an indictment because Judge Oldner told me it was and we were in
the presence of the prosecutor. I file marked the document on the top
right corner at 2:58pm.
Judge Oldner said he would keep this sealed indictment in his office
until such time he could put it in the regular rotation. He then took the
envelope and I escorted him, the officer and the prosecutor back to the
east door of our office.
. . . .I reported to Ms. Thompson the Judge had filed a sealed
indictment that would be kept in his office until he added it to the
regular rotation.
(See Exh. E).4
The Grand Jury returned the first Paxton Indictment on July 7, yet it was not
properly processed until July 28th, when the Grand Jury issued Indictments Two
and Three. Upon information and belief, Judge Oldner personally held onto the
First Indictment in Violation of Chapter 20 of the Code of Criminal Procedure.
When the indictment is ready to be presented, the Grand Jury shall, through their
formation, deliver the indictment to the Judge or Clerk of the Court. See TEX.
4
See footnote 3.
12
CRIM. PRO. ART. 20.22(b). This provision further establishes the nonpublic waiver
of the indictments processing up to this point.
It is unknown why Judge Oldner held the First Indictment and did not
immediately surrender it to the District Clerk. Failure to do so is also counter to
the Code of Criminal Procedure that states a, Capias shall be issued by the District
Clerk upon each indictment for felony presented after bail has been set or denied
by the Judge of the court. See TEX. CODE CRIM. PRO. ART. 23.02(a). Clearly the
July 7th Indictment was presented on that date, yet Judge Oldner ignored the law by
failing to timely issue a capias or allow Paxton to appear upon summons.
By holding the Indictment and not allowing the District Clerk to process it,
the District Clerk was thwarted in discharging her statutory duty to deliver the
capias/summons to the proper party. See TEX. CODE CRIM. PRO. ART.23.03(a).
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
13
13
Three weeks after, on July 28, two more indictments were issued.
These
Indictments were also handled in a fashion that was inconsistent with standard
operating procedures. Another of the District Clerks employees noted:
At approximately 4:05 p.m., Judge Oldner along with four (4) other
gentlemen came to may desk here in the District Clerks 3 rd Floor
Office. The other gentlemen were two attorneys and two Texas
Rangers.
Judge Oldner presented me with two manila envelopes, one was
sealed and the other was unsealed. He instructed me that in those
envelopes contained indictments, placing them all into the same court.
As one of the envelopes was sealed, Judge Oldner gave me approval
to open the envelope in order to remove the sealed indictment. The
other envelope with two (2) Indictments was not sealed. As I had
never done a procedure like this before, I made various inquiries with
my co-worker, Sylvia Greer. She is my back-up to the Grand Jury
Intake desk.
(Exh. G)5
VI. JUDGE OLDNER VIOLATED GRAND JURY SECRECY
On July 28, 2015, the Grand Jury returned two more Indictments against
Paxton (Indictment Nos. 416-81914-2015 and 416-81915-2015).
None of the
14
15
(Exh. J)6. Curiously, at the end of that same day, Cissy Oldner began texting Ms.
Fletcher about the Paxton matter:
Date Time
7/2
Oldner
Well I actually heard that he
is not running again because
he is somehow involved in
5:53p
Paxton's mess-- speaking of-your friend Paxton has not
had a good week. . .
Not listed
7/2
7/2
Not Listed
7/2
7/2
7/2
Fletcher
7/2
7:26p
7/2
7:27p
See footnote 3.
16
7/2
7/2
7/2
I understand.
During their exchange, Cissy Oldner communicated that Ms. Fletcher is not
to . . . .tell anyone about Mr. Paxtons indictment and that it could not be
discussed until the indictment was unsealed on August 14. (Exh. I, 12). This
was and is information received from a Grand Jury secrecy breach. In an email
from Attorney Pro Tem Kent Schaffer to Paxtons previous counsel, Joe Kendall
on July 29, 2015, Mr. Schaffer confirmed August 14 to be the day Paxton would
turn himself in. (Exh. K). Mr. Schaffer communicated:
. . . .Things have moved along faster than we anticipated.. . . .Although
we said that we could issue a summons for the 14 th of August, the
judge issued the warrants for Mr. Paxtons arrest. . . . .Accordingly
Mr. Paxton needs to surrender to Ranger Henderson at the Collin
County Jail no later than 10:00 on Monday, August 3, 2015. . . .
(Exh. K)(emphasis added).
Judge Oldner violated grand jury secrecy. Disclosure of secret grand jury
information and sealed indictments to his wife is a clear violation of Texas law.
It is well settled that no person may disclose the existence of an indictment
Motion to Quash Indictments Because Judge Oldners Cumulative Actions
Compromised the Integrity of the Indictment Process
17
17
provides that if the defendant is not in custody or under bond at the time of the
presentment of indictment, the indictment may not be made public and the entry in
the records of the court relating to the indictment must be delayed until the capias
is served and the defendant is placed in custody or under bond. Hence, the
Indictments were to remain sealed until Paxtons surrender to the authorities.
Grand jury proceedings are secret. The duty to maintain grand jury secrecy
applies not only to the grand jury members who take an oath of secrecy, but the
judge also has a statutory duty to keep the grand jury proceedings secret. See TEX.
CRIM. PRO. CODE ANN. ART. 19.34. See also Stern v. State Ex. Rel. Ansel, 869
S.W.2d 614, 623 (Tex. App. Houston [14th Dist.] 1994). The Texas Code of
Criminal Procedure places great emphasis on the importance of maintaining grand
jury secrecy. In the instant case, these solemn duties were either failed or were
neglected.
VII. SUMMONS WAS IMPROPERLY REJECTED BY JUDGE OLDNER
WHO ISSUED AN ARREST WARRANT FOR PAXTON
On July 29, 2015 at 2:55 p.m., Attorney Pro Tem Schaffer notified Paxtons
previous counsel, Joe Kendall, by email that:
18
(Exh. K).
recognizing that Paxton was not a flight risk, informed Judge Oldner that they did
not oppose a Personal Bond (PR) which would have allowed Paxton to appear
before the Court upon notice after completing the requisites of a bail bond as set
forth in TEX. CODE CRIM. PRO. ART. 17.03, 17.04 and 17.08.
The Attorney Pro Tem informed Judge Oldner that they would issue a
summons for Paxtons first court appearance for August 14, , 2015. (Exh. K).
Instead Judge Oldner . . . .issued the warrants for Mr. Paxtons arrest. (Exh.
K). The warrants were not only unnecessary and heavy-handed but also in
violation of the Texas Code of Criminal Procedure.
According to District Clerk employees, after the Indictments issued on July
28, a summons for Paxton was about to issue. (Exh. H).7 Curiously, the next
day, on July 29 at 2:30 p.m., Judge Oldner asked that a capias (arrest warrant) issue
for Paxtons arrest and given to Judge Oldner approximately 30 minutes later, at
7
19
3:00 p.m. (Exh. K, H). Judge Oldner later recused himself from Paxtons case
that very day and immediately after he learned that his wife had illegally leaked the
existence of the Indictments. (Exh. L). It is reasonable to deduce that this was a
vindictive action meant to publically embarrass and humiliate Paxton.
The law states that, upon the request of the attorney representing the State,
a summons shall be issued by the District Clerk. TEX. CODE CRIM. PRO. ART.
23.03(a). Judge Oldner had no discretion to deny the Attorney Pro Tems request
for a summons as the Code of Criminal Procedure states that a summons shall
issue.
VIII. CONCLUSION
Judge Oldners engaged in purposeful and cumulative efforts to subvert the
Grand Jury process, all to Paxtons detriment and in violation of his due process
rights under the Fourteenth Amendment to the United States Constitution and
Article 1, Sections 13, 14 and 19 of the Texas Constitution (due course of law). It
appears that Judge Oldner improperly interjected himself into the Grand Jury and
may have systematically leaked sealed Grand Jury information to an unauthorized
person. There is no justifiable basis for Judge Oldner to have engaged in such
conduct and granting this Motion to Quash the Indictments is the only appropriate
remedy for this conduct.
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Respectfully submitted,
Dan Cogdell
Co-Lead Counsel
Cogdell Law Firm, L.L.C.
402 Main Street
Fourth Floor
Houston, Texas 77002
Telephone: (713) 426-2244
Facsimile: (713) 426-2255
Terri Moore
300 Burnett St., Ste. 160
Fort Worth, TX 76102-2755
Telephone: (817) 877-4700
moore@terrimoorelaw.com
Heather J. Barbieri
Barbieri Law Firm, P.C.
1400 Gables Court
Plano, Texas 75075
Telephone: 972.424.1902
Facsimile: 972.208.2100
hbarbieri@barbierilawfirm.com
Bill Mateja
Fish & Richardson, P.C.
1717 Main Street, Suite 5000
Dallas, Texas 75201
214-292-4008
mateja@fr.com
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CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of November 2015, a true and correct
copy of the above and foregoing Motion was served on all counsel of record via
ECF, certified mail, return receipt requested, email, electronically, or hand
delivery.
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