Cause No. ____________

From the 405th District Court of Galveston County, Texas

In re Kristie L. Walsdorf, Relator In the ___ Court of Appeals

Houston, Texas

Petition for Writ of Mandamus

And

Brief in Support of the Petition

Identity of Parties and Counsel

Relator is Kristie L. Walsdorf, counsel for Susan Nicole Jacob, who is 

one of the two real parties in interests. Relator is represented by Mark 

W. Bennett of Bennett & Bennett, 917 Franklin Street, Fourth Floor, 

Houston, Texas 77002.

The other real party in interest is the State of Texas, represented 

by Galveston County District Attorney Jack Roady, 600 59th Street, 

Suite 1001, Galveston, Texas 77551.

Respondent is the Honorable Michelle Slaughter, Judge of the 

405th District Court in Galveston County, Texas.

Table of Contents

Identity of Parties and Counsel.................................1

Table of Contents ...................................................1

Index of Authorities ..............................................3

Statement of the Case..............................................3

Statement of Jurisdiction........................................ 4

Issue Presented...................................................... 4

Statement of Facts ................................................. 4

Argument.............................................................. 4

ACCEPTED

01-18-00419-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

5/24/2018 10:53 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/24/2018 10:53:13 PM CHRISTOPHER A. PRINE Clerk
2

Relief Sought....................................................... 4

Brief in Support of the Petition................................ 4

Standard............................................................. 5

The Record .......................................................... 5

Clear Right to Relief............................................. 5

Prior restraints are disfavored. ........................... 6

The Davenport standard is the correct 

threshold standard..............................................7

Public policy disfavors this prior restraint..............8

The State’s rationale does not hold up....................8

No Adequate Remedy ............................................ 10

Conclusion .......................................................... 10

Prayer ................................................................. 11

Certification........................................................ 11

Certificate of Service ............................................ 12

Appendices ........................................................... 13

Appendix A: Certified or Sworn Copies.................... 13

Appendix A1: Certified Copy of Protective Order .... 13

Appendix A2: Certified Copy of State’s Motion 

for Protective Order ......................................... 16

Appendix A3: Reporter’s Record............................ 19

Appendix B: [Intentionally Left Blank] ................... 36

Appendix C: Text of Law (Other than Case Law) 

on Which Argument is Based.................................. 37

Section 22.221(b) of the Texas Government 

Code, Writ Power .............................................. 37
3

Selected Portions of Texas Disciplinary Rule of 

Professional Conduct 3.09, Special Duties of a 

Prosecutor, and Comments Thereto...................... 37

Index of Authorities

CASES

Alexander v. United States, 509 U.S. 544 (1993)...............................6

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (orig. proceeding)...6, 7

In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 

2007, no pet.) (orig. proceeding)...................................................7

In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.) 

(orig. proceeding).........................................................................8

In re King, 293 S.W.3d. 376 (Tex. App.—Amarillo 2009, no pet.) 

(orig. proceeding).........................................................................7

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)..........................6

San Antonio Express–News v. Roman, 861 S.W.2d 265 (Tex. 

App.—San Antonio 1993, orig. proceeding).............................8, 10

STATUTES

Tex. Govt. Code § 22.221(b)(1) ...................................................... 4

OTHER AUTHORITIES

Tex. R. Discip. Proc. 3.09(d).............................................................9

Statement of the Case
4

The underlying proceeding is a criminal prosecution.

Respondent is the Honorable Michelle Slaughter, Judge of the 

405th District Court in Galveston County, Texas.

Relator seeks relief from Respondent’s having signed a Protective 

Order comprising a prior restraint on Relator’s speech under article 1, 

section 8 of the Texas Constitution.

Statement of Jurisdiction

Galveston County is a county in this Court’s district. This Court has 

jurisdiction under section 22.221(b)(1) of the Texas Government 

Code. Tex. Govt. Code § 22.221(b)(1).

Issue Presented

Is the Protective Order a void prior restraint?

Statement of Facts

On June 26, 2017 Real Party in Interest the State of Texas filed a 

Motion for Protective Order. On October 2, 2017 Respondent entered 

the Protective Order, restricting Relator’s speech.

Argument

Relief Sought

Relator files this Petition for Writ of Mandamus to ask this Court to 

grant the writ and order Respondent to vacate its Protective Order.

Brief in Support of the Petition
5

Standard

To demonstrate the right to mandamus relief, Relator must establish 

that Respondent clearly abused her discretion, and that Relator has no 

adequate remedy by appeal.

The Record

The record comprises:

• The State’s Motion for Protective Order; 

• The Protective Order; and

• The Reporter’s Record from October 2, 2017.

The Protective Order provides:

[1] The Defendant and counsel shall be admonished that the 

purpose of discovery is case preparation and that sensitive 

information provided within the scope of the Protective Order is to 

be used only for that purpose;

[2] Information disclosed under the Protective Order shall be used 

only by the defendant, the attorney representing the defendant, or 

an investigator, expert, consulting legal counsel, or other agent of 

the attorney representing the defendant solely for purposes of this 

action;

[3] The Defendant and counsel for the defense shall not release or 

communicate the information to any other outside parties.

Clear Right to Relief

This Protective Order is a prior restraint on Relator’s speech.
6

A prior restraint on speech is an order “forbidding certain 

communications when issued in advance of the time that such 

communications are to occur.” Alexander v. United States, 509 U.S. 

544, 550 (1993). “[P]rior restraints on speech and publication are the 

most serious and the least tolerable infringement on First Amendment 

rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

Relator has a clear right to relief because the prior restraint 

violates article I, section 8 of the Texas Constitution, which “provides 

greater rights of free expression than its federal equivalent.” Davenport 

v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992) (orig. proceeding).

Prior restraints are disfavored.

Prior restraints on speech are presumptively unconstitutional. See id.

In the context of a prior restraint affecting attorneys and parties to a 

case:

... federal courts consider three factors. First, the court must 

consider whether the requested order is narrowly tailored. Next, the 

court determines whether a gag order is the least restrictive means, 

or if less burdensome alternatives would achieve the same 

governmental objective. Finally, the court applies the “threshold 

standard for imposing a prior restraint.
7

In re Benton, 238 S.W.3d 587, 593 (Tex. App.—Houston [14th Dist.] 

2007, no pet.) (orig. proceeding) (internal quotation marks and 

citations omitted).

The Davenport standard is the correct threshold 

standard.

In Davenport, the Texas Supreme Court concluded that a gag order in 

a civil proceeding will withstand state constitutional scrutiny only if 

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 at 10.

The trial court made no such findings, and there is no evidence 

that the Protective Order is necessary to prevent an imminent and 

irreparable harm to the judicial process that will deprive litigants of a 

just resolution of their dispute.

While Davenport involved a civil case, the Amarillo, Waco and 

San Antonio Courts of Appeals have applied the Davenport test to 

prior restraints in criminal proceedings. In re King, 293 S.W.3d. 376 

(Tex. App.—Amarillo 2009, no pet.) (orig. proceeding); In re Graves, 

217 S.W.3d 744, 753 (Tex. App.—Waco 2007, no pet.) (orig. 
8

proceeding); San Antonio Express–News v. Roman, 861 S.W.2d 265, 268

(Tex. App.—San Antonio 1993, orig. proceeding).

1

Public policy disfavors this prior restraint.

The State in its Motion for Protective Order describes the records 

subject to the Protective Order:

The State is producing records regarding a law enforcement officer 

and/or state employee, in accordance with the State’s duty to 

disclose Brady / Giglio / Morton evidence.

Motion for Protective Order. The due process clause of the United 

States Constitution requires a prosecutor to seek out and disclose to 

the defense Brady and Giglio evidence. This is an absolute rule, and 

disclosure may not be conditioned on a prior restraint barring the 

defense from discussing such evidence.

The State’s rationale does not hold up.

The State in its Motion for Protective Order relied solely on Rule 3.09(d) 

of the Texas Disciplinary Rules of Professional Conduct:

 

1 The Fourteenth Court of Appeals in In re Benton discussed the various threshold 

standards, and declined to decide which applies to a prior restraint on counsel in a 

criminal cases because the prior restraint in that case failed the least stringent test. In 

re Benton, 238 S.W.3d 587, 597(Tex. App.—Houston [14th Dist.] 2007, no pet.). 

The Davenport test is the only one approved under the more-stringent Texas 

Constitution. Here, as in Benton, though, whichever standard applies, the prior 

restraint in this case fails to satisfy it.
9

Texas Rules of Professional Conduct § 3.09(d) requires that a 

prosecutor “make timely disclosure to the defense of all evidence or 

information ...” exculpatory or mitigating “... except when the

prosecutor is relieved of this responsibility by a protective order of 

the tribunal." Comment 5 of Rule 3 explains the exception. “The 

exception in paragraph (d) recognizes that a prosecutor may seek an 

appropriate protective order from the tribunal if disclosure of 

information to the defense could result in substantial harm to an 

individual or to the public interest.” Texas Rules of Professional 

Conduct §3.09, Comment 5. The State requests that the Court 

enter a Protective Order in this case with the following provisions:

Motion for Protective Order.

Rule 3.09(d) is an ethical rule, not a rule of criminal procedure. It 

does not govern the trial court, but creates disciplinary liability for a 

prosecutor’s failure to comply with his due-process obligations to 

disclose Brady and Giglio evidence. The exception in Rule 3.09(d)

relieves a prosecutor of disciplinary liability under Rule 3.09(d) for 

failing to disclose Brady and Giglio evidence in limited circumstances.

Tex. R. Discip. Proc. 3.09(d).

The “protective order” referenced in Rule 3.09(d) is not an order 

gagging another lawyer (such as Relator) but a protective order 
10

relieving the prosecutor of his ethical duty to disclose Brady and Giglio

information.2

Under the disciplinary rule the prosecutor is subject to discipline 

if he does not either a) disclose Brady; or b) get a protective order 

relieving him of that responsibility. “Disclose Brady and Giglio

material subject to a prior restraint on the defense” is not an option

created by Rule 3.09(d).

No Adequate Remedy

Mandamus is the appropriate method by which to challenge a gag 

order. San Antonio Express–News v. Roman, 861 S.W.2d at 266. Because 

no appealable order has been entered, Relator has no adequate remedy 

by appeal. See id. at 267.

Conclusion

Because the Protective Order is a prior restraint, it is presumptively 

unconstitutional. Because there are no specific findings supported by 

evidence either that an imminent and irreparable harm to the judicial 

process will deprive litigants of a just resolution of their dispute, or 

 

2 Even if a prosecutor got a protective order relieving him of his Rule 3.09(d) 

responsibility, he would still have a Constitutional duty under Brady and its progeny, 

with which Rule 3.09(d) has nothing to do.
11

that the judicial action represents the least restrictive means to prevent 

that harm, the Protective Order does not meet the standard of 

Davenport v. Garcia, it is void. Relator clearly abused his discretion in 

entering this protective order.

Prayer

For these reasons, Relator asks that the Court order the clerk to file 

this Petition for Writ of Mandamus and set it for hearing; order the clerk 

of the court to give notice to all parties of the filing of the petition and 

the hearing date; and, following the hearing, issue a Writ of Mandamus

directed to Respondent to vacate the Protective Order, and grant any 

other relief to which Relator may be entitled.

Certification

I have reviewed the petition and concluded that every factual

statement in the petition is supported by competent evidence included 

in the appendix or record.

___________________________

Mark W. Bennett
12

Certificate of Service

A copy of this petition will be delivered to attorney for the State by the 

efiling system.

___________________________

Mark W. Bennett
13

Appendices

Appendix A: Certified or Sworn Copies

Appendix A1: Certified Copy of Protective Order


16

Appendix A2: Certified Copy of State’s Motion for 

Protective Order


19

Appendix A3: Reporter’s Record
 1

KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

REPORTER'S RECORD

VOLUME 1 OF 1 VOLUME

TRIAL COURT CAUSE NO. 14-CR-1986 and 15-CR-0860

THE STATE OF TEXAS ) IN THE DISTRICT COURT

)

vs. ) GALVESTON COUNTY, TEXAS

)

SUSAN NICOLE JACOB ) 405th JUDICIAL DISTRICT

 

DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR 

PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF 

WITHHELD INFORMATION AND/OR SANCTIONS

 

On the 2nd day of October, 2017, the following 

proceedings came on to be held in the above-entitled 

and numbered cause before the Honorable Michelle 

Slaughter, Judge Presiding, held in Galveston County, 

Texas. 

Proceedings reported by computerized stenotype 

machine.

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

APPEARANCES

ADAM POOLE

SBOT NO. 24042968

Chief Assistant Criminal District Attorney

Galveston County District Attorney's Office

600 59th Street, Suite 1001

Galveston, Texas 77551

Telephone: 409.766.2344

Fax: 409.766.2290

E-mail: adam.poole@co.galveston.tx.us

Attorney for Prosecution, The State of Texas

KRISTIE WALSDORF

SBOT NO. 24076145

Walsdorf Law Firm

305 21st Street, Suite #247

Galveston, Texas 77550

Telephone: 409.766.7330

Fax: 409.750.7131

E-mail: kwalsdorf@walsdorflaw.com

Attorney for Defendant, Susan Nicole Jacob

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

CHRONOLOGICAL INDEX

DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR 

PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF 

WITHHELD INFORMATION AND/OR SANCTIONS

October 2, 2017 

Page Vol. 

Adjournment ....................................16 1 

Reporter's Certificate 17 1 .........................

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

THE COURT: Let's go on the record in

14-CR-1986, 15-CR-0860, State of Texas vs. Susan

Nicole Jacob.

Let's have appearance of counsel for

the record?

MR. POOLE: Adam Poole for the State.

MS. WALSDORF: Kristie Walsdorf for

the defense.

THE COURT: Is this Susan Jacob?

MS. WALSDORF: Yes, ma'am.

THE COURT: Okay. All right. We are

here on the, in each case, on the State's Motion to

Adjudicate Guilt and Revoke Community Supervision.

Ms. Jacob, could you please stand up

for a moment?

MS. WALSDORF: Your Honor, if I may

clarify?

THE COURT: Sure.

MS. WALSDORF: We're only here on the

protective order issue.

THE COURT: Only on protective order?

I thought this was an MRP.

MS. WALSDORF: No, no.

MR. POOLE: They were Motion to Revoke

but --

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

MS. WALSDORF: We're just here today

for the protective order.

THE COURT: So we're here then on

these cases regarding some Brady issues? So do you

want to proceed, Ms. Walsdorf?

MS. WALSDORF: Yes, Your Honor. I

went ahead -- we were here while Judge Garner was on

the bench for you. At that time the State said they

had some Brady information. I had filed for a

Brady -- or I filed for discovery -- I filed for

discovery in June, on June 12th. And in court the

State orally said they had some Brady information

regarding an Officer Coolly. They did not file for a

protective order. I was simply told orally they had

a protective order, and they did give me a copy of

it. Then they gave me a copy of the actual order.

We had a little chitchat in the back

with Judge Garner. Judge Garner said, Wait until

Judge Slaughter is here. So my motion stands. I

went ahead and laid out all the arguments. My

biggest issues is this hasn't even been filed by the

State. So really I'm kind of just going blind. What

I know is in the other hearings that I've had in

these cases, I have called the First Assistant, Kevin

Petroff, to the stand who says, as a general policy,

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

their office will not disclose Brady information

until the case is set for final resolution, which in

some cases can take months. But his testimony is

that they wanted a blanket protective order, although

he understood that the Michael Morton says they shall

disclose, there's indeed a rule for the prosecutors

to follow the discovery rules, they shall disclose,

that they wanted the Courts first to order defense

attorneys to comply with that protective order, even

when the State was not presenting what they have to

present under the comments. They are allowed to get

protective orders when they can show there is

substantial harm to an individual or to the public. 

In this case the State has not put

forth anything in the motion stating there is any

sort of a public harm or any harm to an individual,

let alone it being substantial harm.

And I went ahead and put in the motion

the official transcript where Mr. Petroff testified

that it was not -- it was their policy to induce the

local police agency to give them Brady information in

hopes they would continue to do so. If the State

were to step out and ask for these protective orders

every time something came up only with the police

officer's personnel file.

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

I can only assume that is what this

is. Again, I haven't been given any information

about what this Brady information is. I'm assuming

it must be a personnel file because, according to the

first assistant, that's what they asked for. To my

knowledge they haven't asked for protective orders in

any other cases regarding any other individuals. And

I know that the -- in addition to the fact I don't

have any of this information, the State's kind of

taking on a dual role in that they're creating a

conflict of interest.

The police departments themselves,

they have their own attorneys. And in this case

nobody has excepted, nobody has objected. We don't

know they even have an issue with this. State has

taken it upon themselves to say, on one hand we're

going to prosecute police officers when they do

something wrong. On the other hand we're going to

jump in and protect their personnel files.

So without even having the police

agency's attorneys come in, the State's kind of

taking on a dual role, creating a conflict of

interest. I think the threshold issue is; one, the

State hasn't filed anything in the motion. They

haven't done what they're supposed to do and stated

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

any sort of substantial harm, let alone any harm.

Again, we're just kind of flying blind that the DA's 

Office policy is to bind defense attorneys with the

carrot being -- I say this because it was on the

report and I want to point that out in the transcript

that I provided that was certified, that the DA's

office wants the ability to penalize defense

attorneys for putting any of this information out in

the public, even though Michael Morton does not --

even Michael Morton says you have to disclose this,

there are no specific provisions in there stating

defense attorneys can't use this information for the

betterment of their client and their case.

At one point Mr. Petroff testified

that was a fear that some of these personnel files

might be put on Facebook. As you know, defense

attorneys are bound by our ethical duties. We're not

allowed to put anything on Facebook. Nobody has ever

accused me have putting something on Facebook. That

is not what I would do with the information. I would

use that as I'm allowed to do to work the case.

At the very least, I've got the --

should have the ability to see what it is and discuss

it with my client. I pretty much have been prevented

from working on her case because we haven't been

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

provided this information.

Again, there are very specific means

for the State to get these protective orders. Most

of the case protective orders have to do with

children or child witnesses. In this case they're

specifically asking them for police officers.

Now, police officers are doing

something that needs to be protected, well, then the

State needs to show where I'm going to do something

to harm them substantially. They simply haven't done

that. 

Michael Morton -- what Michael Morton

did in ethical rules, what they've done is they have

removed the gatekeeping process. It is no longer up

to the DAs to say what they shall give to the defense

attorneys. It's no longer, with all due respect,

Your Honor, there is no longer gatekeeping function

for the judiciary that's been taken out. 

The rule is you just have to hand this

information over. And the few times I've actually

had to litigate these, judges have agreed with me so

far the cases where I've been given the information,

I will state on the record, I've never put any of

this information on the Facebook. I have not shared

it with the public. I have not brought it to the

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

media. I have done no such thing with it. And I

don't think I've even been accused of doing that, but

at this point they haven't even said what harm, let

alone anything substantial, would come from them.

Just provide me the information I've asked for and

they're obligated to give me.

THE COURT: Response?

MR. POOLE: Judge, I will agree on one

thing, and that is I think initially this came to the

Court a little differently than most because when it

was first presented it was Judge Garner on the bench.

He basically said, I don't want to sign this

document. I just want to let Judge Slaughter hear it

later. Laimplet that's why the motion hasn't been

filed.

Typical procedure is come -- we come

up with the records and the motion for protective

order. It all gets done, then and there. We have

set for a hearing. I know you're well aware what the

protective order motion states, and they do state the

purpose behind them is to prevent substantial harm,

if these documents, which are confidential, marked

privileged and definitely sensitive material, if they

were released to the public in anyway.

So I very strongly disagree with what

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

Ms. Walsdorf has said repeatedly here and repeatedly

in her motion where she says that we've indicated to

her we have Brady. Brady and this material was

Brady. She hasn't seen it so she has no idea if it's

Brady. I couldn't disagree more that it's Brady.

You look at the officer in question Officer Cooley,

he had no responsibility in one case. He was present

at the arrest of the other. He had no interaction

with the defendant whatsoever, nothing to do with the

drugs -- I can't think of how any of these records

could relate to being impeachable or anything like

that. 

And we're a step removed from that

because this is an MRP. So the underlying case has

already been disposed of. Also the records regarding

Officer Cooley, we're being overly inclusive with

what we're turning over. Their allegations not only

have not been substantiated but actually disproven.

Yet we're still turning it over. That's our policy.

We're overly inclusive even if it's

not Brady, we still turn it over. We simply request

a protective order. The language of the protective

order comes directly out of 39.14 in terms of what it

prevents them from doing. They can only uses it for

criminal purposes for that case. It's just that

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

39.14 doesn't describe any result or remedy if they

were violated. That's what the protective order is

for. The Court could amend it and write it in a

different penalty or no penalty at all. It's

entirely up to the Court. We're going to give the

records over regardless of whether a protective order

is signed and regardless of what it says. But we're

going to keep continuing to ask for that protective

order because if they were to subpoena these records

themselves, then you would have the attorneys for

these individual agencies eation coming in and they

would be requesting a protective order. We're

getting to this same places either way. This is

simply a biproduct of our process of being overly

inclusive, turning the records over regardless of

requesting a protective order.

THE COURT: Can you tell me what's in

those records that would substantially harm the

individual or be against public interest or a problem

in any way, shape or form?

MR. POOLE: Yes, Your Honor. So in

regards to this particular officer, it's a little bit

complicated because one of the investigations sort of

shoehorned in a lot of ciliary documents such as the

officer's divorce decree. I mean, it's pages and

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

pages of records that are not related to anything.

It's like various employee

information, internal memos. There is also a lot of

proprietary information in here. In addition to

that, even under the additional section we always

turn over anyway, there are, for example, complaints

that were not substantiated about a dating

relationship he had that turned out not be in any

violation of any kind of policy. It's just personal

information. Like I said, we still want to turn it

over. We intend to turn it over regardless. We're

just asking there be a protective order in place.

THE COURT: Ms. Walsdorf?

MS. WALSDORF: Well, Your Honor, I

don't think it matters whether it's Brady -- I'm

sorry. I don't think it matters whether it's Brady

information or not. If it's discoverable material,

it does need to be turned over. Again, when I said I

was flying blind, it was simply an oral conversation

we had in chambers with the Judge Garner back in

August.

So I'm going off of memory because

there was nothing filed. Okay? In that respect I do

think we still get the information. And it has been

litigated before. This was an open records request.

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion October 2, 2017

We went through the same problems with Judge Neves.

In fact that's when the city did make an appearance

and said themselves Michael Morton actually changed

local rules in there was no more in camera review.

It had to be disclosed.

So either route we still get this

information, but it has been already addressed by

Judge Neves when he said, Yeah. I understand.

Because I was able to say I've been asking for them

under open records at the same time, which is why we

had the prosecutor's office and city attorney's

office in here testifying about the same issue.

In the end, Your Honor, even though

these might be sensitive documents, yeah, they're

personnel files. They're sensitive, but that does

rise to what is needed in order to show substantial

harm or harm to the public interest. Just because

they might be sensitive does not show I'm going to do

something with that information that is going to

create harm. Just because I might know something as

an attorney doesn't mean that individual, that

officer, is going to be harmed by my basic knowledge

of that information.

THE COURT: All right. Here's what

I'm going to do, just given particular facts as I

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion

October 2, 2017 understand them on this case, I'm going to go ahead

and grant the protective order. But, Ms. Walsdorf,

of course, you're going to receive this information.

If you find something in this information that you

believe is Brady or impeachment evidence or some sort

of evidence that you believe that you actually need

for your client's case, let me know. And then we can

have a hearing on that and if I -- I can decide to

lift that protective order for that purpose. So --

but, of course, protective order is limited and still

allows you to utilize the information, receive the

information. 

That's how we'll proceed in this case.

Okay?

Thank you.

Do you have an order?

MR. POOLE: Yes, Judge.

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KAREN S. BERNHARDT, C.S.R.

(713) 962-2530

Motion

October 2, 2017

STATE OF TEXAS 

COUNTY OF Galveston 

I, Karen S. Bernhardt, Deputy Court Reporter in 

and for the 405th District Court of Galveston, State 

of Texas, do hereby certify that the above and 

foregoing contains a true and correct transcription 

of all portions of evidence and other proceedings 

requested in writing by counsel for the parties to be 

included in this volume of the Reporter's Record in 

the above-styled and numbered cause, all of which 

occurred in open court or in chambers and were 

reported by me. 

I further certify that this Reporter's Record of 

the proceedings truly and correctly reflects the 

exhibits, if any, admitted, tendered in an offer of 

proof or offered into evidence. 

I further certify that the total cost for the 

preparation of this Reporter's Record is $56.00 and 

will be paid by Galveston County voucher. 

WITNESS MY OFFICIAL HAND this the 25th day of 

October, 2017. 

/s/Karen S. Bernhardt 

Karen S. Bernhardt, CSR 1601 

Expiration Date: 12/31/18 

Deputy Court Reporter, 405th District Court 

Galveston County, Texas 

3901 29th Street No. 

Texas City, Texas 77590/ Telephone: 713.962.2530 

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36

Appendix B: [Intentionally Left Blank]
37

Appendix C: Text of Law (Other than Case Law) on Which 

Argument is Based

Section 22.221(b) of the Texas Government Code, Writ 

Power

(b) Each court of appeals for a court of appeals district may issue all 

writs of mandamus, agreeable to the principles of law regulating those 

writs, against :

(1) a judge of a district, statutory county, statutory probate county, or 

county court in the court of appeals district;

....

Selected Portions of Texas Disciplinary Rule of 

Professional Conduct 3.09, Special Duties of a 

Prosecutor, and Comments Thereto

The prosecutor in a criminal case shall:

...

(d) make timely disclosure to the defense of all evidence or 

information known to the prosecutor that tends to negate the guilt of 

the accused or mitigates the offense, and, in connection with 

sentencing, disclose to the defense and to the tribunal all unprivileged 

mitigating information known to the prosecutor, except when the 

prosecutor is relieved of this responsibility by a protective order of the 

tribunal; ....
38

Comment:

Source and Scope of Obligations

1. A prosecutor has the responsibility to see that justice is done, and 

not simply to be an advocate. This responsibility carries with it a 

number of specific obligations. [A] prosecutor is obliged to see that the 

defendant is accorded procedural justice, that the defendant's guilt is 

decided upon the basis of sufficient evidence, and that any sentence 

imposed is based on all unprivileged information known to the 

prosecutor. See paragraph (d). .... Applicable law may require other 

measures by the prosecutor and knowing disregard of those obligations 

or a systematic abuse of prosecutorial discretion could constitute a 

violation of Rule 8.04.

....

5. The exception in paragraph (d) recognizes that a prosecutor may 

seek an appropriate protective order from the tribunal if disclosure of 

information to the defense could result in substantial harm to an 

individual or to the public interest.