NO. 12-14-00153-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STATE EX REL. 

MICHAEL E. JIMERSON,

RELATOR

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§

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ORIGINAL PROCEEDING

OPINION

In this original mandamus proceeding, Relator, Michael Jimerson, in his capacity as the 

County Attorney for Rusk County, challenges the trial court’s June 6, 2014 order denying his 

motion to quash a subpoena issued by real parties in interest GlobalFab, L.L.C., and Timothy 

Scott Thomas. The respondent is the Honorable Guy W. Griffin, visiting judge for the Fourth

Judicial District Court, Rusk County, Texas. Joey M. Delarosa, Galyean Equipment Co., Inc., 

Galyean, L.P., and Allen Galyean are additional real parties in interest. We conditionally grant 

the County Attorney’s petition.

BACKGROUND

GlobalFab, L.L.C., Timothy Scott Thomas, and Joey M. Delarosa are defendants (the 

defendants) in a suit filed by Galyean Equipment Company, Inc., Galyean, L.P., and Allen 

Galyean (collectively Galyean).

1

 GlobalFab and Thomas (collectively GlobalFab) filed a 

counterclaim against Galyean seeking damages for defamation and malicious prosecution arising 

out of a criminal investigation initiated by Allen Galyean, the owner of Galyean Equipment 

Company, Inc. and Galyean, L.P. The case was set for trial on June 9, 2014, and GlobalFab 

subpoenaed the County Attorney to testify as a witness on its behalf. 

 

1 We cannot determine from the record what causes of action Galyean asserted against the defendants. 

However, it is clear from the record that the initial dispute between the parties related to the ownership of trade 

secrets.
2

The County Attorney filed a motion to quash the subpoena. In his motion, the County 

Attorney argued that (1) the records and documents requested are privileged work product in 

their entirety,2(2) any and all knowledge the County Attorney has of this matter constitutes work 

product developed in anticipation of litigation for trial, (3) the request would require the County 

Attorney to engage in a misuse of office, and (4) mandating the County Attorney’s testimony 

would impose an unwarranted burden on finite prosecutorial resources. After conducting a 

hearing, the trial court denied the motion to quash. The County Attorney then filed this original 

proceeding.

PREREQUISITES TO MANDAMUS

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty 

imposed by law where there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 

148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 

(Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or 

in applying the law to the facts, and a clear failure to analyze or apply the law correctly 

constitutes an abuse of discretion. Walker, 827 S.W.2d at 840. Mandamus is proper when the 

trial court erroneously orders the disclosure of privileged information because the trial court’s 

error cannot be corrected on appeal. Id. at 843; see also In re Bexar Cnty. Criminal Dist. 

Attorney’s Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig. proceeding); In re Park Cities Bank, 

409 S.W.3d 859, 866 (Tex. App.—Tyler 2013, orig. proceeding). Therefore, in this proceeding, 

we address only the first prerequisite—whether the trial court clearly abused its discretion or 

violated a duty imposed by law.

THE WORK PRODUCT PRIVILEGE

In his mandamus petition, the County Attorney raises the issue of whether a prosecutor 

“can be called to testify in a malicious prosecution case about the information presented to him 

during conversations that took place as part of his criminal investigation.” He argues that all of 

the testimony sought by GlobalFab is “core work product.” But in the event that his testimony is

not core work product, the County Attorney argues, GlobalFab has failed to show it has a 

 

2

The subpoena did not include a request for the production of any documents.
3

“substantial need” for his testimony and cannot show that it is “unable, without undue hardship, 

to obtain the substantial equivalent of the material by other means.” 

In determining whether the trial court abused its discretion in denying the County 

Attorney’s motion to quash, we first consider the application of the Texas Rules of Civil 

Procedure to the evidence and the arguments presented to the trial court relating to GlobalFab’s 

causes of action against Galyean. 

Applicable Law

Texas Rule of Civil Procedure 192.5 defines “work product” as

(1) material prepared or mental impressions developed in anticipation of litigation 

or for trial by or for a party or a party’s representatives, including the party’s attorneys, 

consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party 

and the party’s representatives or among a party’s representatives, including the party’s attorneys, 

consultants, sureties, indemnitors, insurers, employees, or agents.

TEX. R. CIV. P. 192.5(a). The work product privilege includes all communications made in 

preparation for trial or in anticipation of litigation, including an attorney’s interviews with parties 

and nonparty witnesses, and extends to an attorney’s mental impressions, opinion, conclusions, 

legal theories, and the selection and ordering of documents. See id.; In re Bexar Cnty., 224 

S.W.3d at 186; In re Park Cities Bank, 409 S.W.3d at 867. 

Work product falls under one of two categories—“core work product” or “other work 

product.” See TEX. R. CIV. P. 192.5(b)(1), (2). Core work product is “sacrosanct,” “not 

discoverable,” and “its protection [is] impermeable.” TEX. R. CIV. P. 192.5(b)(1); In re Bexar 

Cnty., 224 S.W.3d at 187-88. It concerns an attorney’s mental processes and includes the work 

product of an attorney or an attorney’s representative that contains the attorney’s “mental 

impressions, opinions, conclusions, or legal theories.” TEX. R. CIV. P. 192.5(b)(1).

Discussion

During the hearing on the motion to quash, GlobalFab stated that the County Attorney’s 

testimony was sought to explain three matters: (1) a recusal letter from the County Attorney 

seeking the appointment of a prosecutor pro tem, (2) a statement the County Attorney made 

during an expunction hearing on a case in which Allen Galyean was the alleged victim, and (3)

communications the County Attorney had with Allen Galyean. 
4

All of the County Attorney’s work and discussions in connection with the criminal 

investigation of GlobalFab constitute “work product.” See TEX. R. CIV. P. 192.5(a); In re Bexar 

Cnty., 224 S.W.3d at 187. The County Attorney argues that testimony regarding any of the three 

aforementioned matters is precluded because it would disclose “core” work product. 

i. The Recusal Letter

On September 16, 2011, a letter written on the County Attorney’s official letterhead was 

sent to the Office of the Attorney General.3 The letter contains the County Attorney’s signature 

and requests the appointment of a prosecutor pro tem for “all cases” arising out of “alleged 

thefts” in which Allen Galyean or his business is the victim. The letter references criminal cases 

against two individuals charged with theft who are not parties to the current case. In addition to 

stating that Allen Galyean is the brother-in-law of the county’s sole district judge, and that the 

district judge’s wife could have a financial interest in Allen Galyean’s company, the letter states 

that Allen Galyean is “adamant that additional charges should be filed against additional parties.” 

The letter explains that Allen Galyean “has expressed concerns that the cases have not met with 

the priority that he believes they deserve[,] and he has made known that he could foresee the 

possibility of supporting another candidate for the position” held by the current County Attorney.

The County Attorney argues that this letter is “exclusively a series of mental impressions 

about [his] criminal investigations and the reasoning behind [the] conclusion that a prosecutor 

pro-tem was required.” He further argues that the purpose of the letter was to convey the 

essential need for involvement from the Attorney General’s Office and that it was “nothing more 

than a memorialization of [his] mental impressions, opinions, conclusions[, and thus] should be 

considered core work product not subject to disclosure.” The County Attorney also argues that,

despite GlobalFab’s possession of the letter, there is no indication that the County Attorney 

waived the work product privilege regarding his mental processes. 

During the hearing on his motion to quash, the County Attorney confirmed that the

recusal letter was public in this record. GlobalFab included the letter as an exhibit here in its 

amended response to the County Attorney’s mandamus petition. The top margins of the letter 

indicate that it was either faxed to or faxed by “RUSK CO D A OFFICE” on September 19, 

2011, and was also faxed to or by “Atty J Paul Nelson” on October 9, 2011. Officer Craig 

 

3 The County Attorney’s letter was sent more than one year after a search warrant was executed on 

GlobalFab’s place of business that resulted in the seizure of several business assets, including blueprints, drawings, 

and a full size prototype of GlobalFab’s design.
5

Sweeney, a CID Lieutenant for the City of Henderson Police Department, testified in a 

deposition that he had seen the letter before, but could not remember how he had acquired it. 

Assuming without deciding that the letter contains “a series of mental impressions about 

the County Attorney’s criminal investigations,” we conclude that the work product privilege 

relating to the contents of the letter is waived because the letter was disclosed to individuals 

other than those at the Attorney General’s office. See id. at 189 (stating that DA’s disclosure of 

prosecution file without objection waived work product privilege as to the file’s contents). The 

work product privilege regarding the County Attorney’s mental impressions, opinions, 

conclusions, and legal theories reached in preparing the letter was not waived, and thus, this 

information is not discoverable. See TEX. R. CIV. P. 192.5(b)(1); In re Bexar Cnty., 224 S.W.3d 

at 189 (DA’s waiver of privilege to the documents contained in its file does not waive DA’s 

testimonial work product privilege regarding prosecutor’s mental processes). However, limited 

testimony from the County Attorney to explain what “additional charges” and who the 

“additional parties” were may be subject to disclosure. See TEX. R. CIV. P. 192.5(b)(2).

ii. The Expunction Hearing

On January 22, 2013, the County Attorney participated in an expunction hearing 

involving one of the individuals named in the recusal letter. During the hearing, the County 

Attorney announced that a prosecutor pro tem had written a letter stating that the subject 

individual was entitled to an expunction. The County Attorney then stated before the court that 

“to the extent I’m permitted to, the State will agree to the expunction. And I’ll state that I never 

agree to expunctions, but I’ll state for the record representations were made to me that were not 

correct, and we will agree to the expunctions.”

The County Attorney contends that these statements are core work product because they 

constitute “nothing more than a summation of his final mental impressions of the case.” We 

disagree. The County Attorney’s assertion that “representations were made to me that were not 

correct” does not constitute a mental impression, opinion, conclusion, or legal theory. See TEX.

R. CIV. P. 192.5(b)(1). Thus, testimony regarding those representations may be subject to 

disclosure. See TEX. R. CIV. P. 192.5(b)(2). 

iii. Communications with Allen Galyean

Lastly, the County Attorney contends that his testimony relating to communications with 

Allen Galyean are not subject to disclosure because the information he gained was made in 
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preparation for trial and is “core work product.” But the County Attorney’s categorization of his 

communications with Allen Galyean as “core work product” is misplaced. Questions relating to 

statements Allen Galyean made to the County Attorney will not reveal the County Attorney’s 

mental impressions, opinions, conclusions, or legal theories. See TEX. R. CIV. P. 192.5(b)(1). 

These communications may be subject to disclosure. See TEX. R. CIV. P. 192.5(b)(2).

SUBSTANTIAL NEED AND UNDUE HARDSHIP

The County Attorney’s testimony relating to the contents of the recusal letter, the 

incorrect representations alleged during the expunction hearing, and communications between 

the County Attorney and Allen Galyean are not core work product. But before the County 

Attorney is required to testify regarding these matters, GlobalFab must show it has a substantial 

need for the County Attorney’s testimony, and is unable, without undue hardship, to obtain the 

substantial equivalent of the testimony by other means. See TEX. R. CIV. P. 192.5(b)(2); In re 

Bexar Cnty., 224 S.W.3d at 188. This is a heavy burden. See In re Bexar Cnty., 224 S.W.3d at 

188.

GlobalFab’s Causes of Action

In its amended response here, GlobalFab contends that the County Attorney’s testimony 

is necessary to prove the elements of its claims for defamation and malicious prosecution against 

Galyean. But during the hearing on the motion to quash, GlobalFab argued that the County 

Attorney’s testimony was necessary to prove the elements for its malicious prosecution claim, 

not defamation. Accordingly, we limit our analysis to whether there exists a substantial need and 

undue hardship as to GlobalFab’s cause of action for malicious prosecution. See TEX. R. APP. P.

33.1. 

To prove a cause of action for malicious prosecution, the complaining party must 

establish (1) the commencement of a criminal prosecution against the plaintiff; (2) causation 

(initiation or procurement) of the action by the defendant, (3) termination of the prosecution in 

the plaintiff’s favor, (4) the plaintiff’s innocence, (5) the absence of probable cause for the 

proceedings, (6) malice in filing the charge, and (7) damage to the plaintiff. Richey v. 

Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); Hernandez v. Porter, 406 S.W.3d 

789, 792 (Tex. App.—El Paso 2013, pet. denied). During the hearing on the motion to quash, 
7

GlobalFab argued that the County Attorney’s testimony was necessary to prove “intent,” 

“malice,” and “[lack of] probable cause.” We construe “intent” as meaning causation. 

The causation (initiation or procurement) element of a malicious prosecution claim may 

be established by proof that (1) the defendant filed formal charges against the complaining party, 

or the defendant’s actions were enough to cause the prosecution, and (2) but for his actions, the 

prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 

293 (Tex. 1994). Generally, a person does not procure a criminal prosecution when the decision 

to prosecute is discretionary. See id. But the exception to this rule is that a person procures a 

criminal prosecution when he provides information that he knows is false. See id.; see also 

Richey, 952 S.W.2d at 519 (“[K]nowingly providing false information to a public official 

satisfies the causation element.”). Moreover, evidence that a person has failed to fully and fairly 

disclose all material information to the prosecutor is relevant not only to the causation element of 

a malicious prosecution claim, but also to the element of malice. See Richey, 952 S.W.2d at 519.

Malice has been defined as ill will or evil motive, or such gross indifference or reckless 

disregard for the rights of others as to amount to a knowing, unreasonable, wanton, and willful 

act. Hernandez v. Mendoza, 406 S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.); Luce v. 

Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex. App.—Dallas 2000, no pet.). To establish 

malice, it is not necessary to prove that the defendant acted with personal spite or ill will; it is 

sufficient to show the defendant committed wrongful acts in reckless disregard of another’s 

rights and with indifference as to whether the party would be injured. Id. This element of 

malice may be inferred from a lack of probable cause and relates to the commencement of the 

proceeding. Id.

Probable cause is defined as “the existence of such facts and circumstances as would 

excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor 

[the complainant], that the person charged was guilty of the crime for which he was prosecuted.” 

Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983). In malicious prosecution cases, there is a 

presumption that the defendant acted reasonably and in good faith and had probable cause to 

initiate the proceedings. Richey, 952 S.W.2d at 517. To rebut this presumption, the plaintiff 

must produce evidence that the motives, grounds, beliefs, or other information upon which the 

defendant acted did not constitute probable cause. See id. at 518.
8

When a complainant reasonably believes a crime has occurred, the reasonableness of that 

belief is not negated by the failure to fully disclose all relevant facts. See id. at 519. Rather, the 

extent of the disclosure indicates whether the complainant may have acted with malice or may 

have, by knowingly providing false information, caused the prosecution. See id.

Discussion

GlobalFab argues that a central issue to its claim for malicious prosecution is “when 

[Allen] Galyean made statements, to whom, what representations were made, and on what they 

were based.” But the information GlobalFab seeks to elicit from the County Attorney relates to 

Allen Galyean’s communications, not whether his belief that a crime had occurred was 

reasonable. See id. Accordingly, we limit our discussion to whether GlobalFab satisfied its 

burden under Rule 192.5(b)(2) as to the elements of causation and malice for its malicious 

prosecution claim.

4

i. “Additional Charges” and “Additional Parties”

The record shows that on March 10, 2010, a search warrant was executed on GlobalFab’s 

place of business as part of a criminal investigation “into the reported theft of trade secrets.” 

This resulted in the seizure of various items, including a computer, one hand drawn trailer 

diagram with part numbers, seven “diagrams/blueprints,” one diagram or drawing of a “tanker” 

with measurements, and one “43001 Apollo 130 vacuum trailer” with a diamond tool box and 

eight tires. 

On December 17, 2012, the presiding judge for the County Court at Law of Rusk County 

signed an order releasing the property and returning it to the “person(s)/entity from whom it was 

seized.” Included in the presiding judge’s order was the statement that “the criminal 

investigation into the reported theft of trade secrets is now concluded by the State of Texas 

Attorney General’s office.” This order was styled, “IN RE: GLOBALFAB, L.L.C., TIMOTHY 

SCOTT THOMAS, JOEY M. DELAROSA, AND MERRILL JENSEN” and filed in cause 

number C-10-025 in the County Court at Law of Rusk County.

This evidence, when viewed in light of the County Attorney’s recusal letter, supports the 

inference that the defendants were among the “additional parties” Allen Galyean was adamant 

 

4

In his brief, the County Attorney argues that GlobalFab has wholly failed to establish that a criminal 

prosecution was ever pursued. However, the County Attorney did not present this argument to the trial court. It is 

well established that arguments not presented to the trial court will not be considered in a petition for writ of 

mandamus. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding); In re Peacock, 421 

S.W.3d 913, 917 (Tex. App.—Tyler 2014, orig. proceeding). 
9

about filing charges against. Had the defendants not been the “additional parties,” the Attorney 

General’s office would have had no need to conduct the criminal investigation regarding the 

reported theft of trade secrets. As a result, there is no substantial need for the County Attorney to 

testify about the identity of the “additional parties” or “additional charges” referenced in the 

recusal letter. 

GlobalFab argues that the County Attorney’s testimony is necessary to authenticate the 

recusal letter in order to admit it at trial. We disagree. The record shows that a prosecutor pro 

tem was appointed to prosecute and conduct a criminal investigation of the individuals named in 

the recusal letter. Thus, the letter would not be hearsay if offered for its effect on the reader 

rather than for the truth of the matter asserted. See In re Bexar Cnty., 224 S.W.3d at 189 (citing 

TEX. R. EVID. 801(d)). Additionally, the letter is a public record; thus, it would be admissible 

under the public records exception to the hearsay rule. See TEX. R. EVID. 803(8). 

ii. Communications with the County Attorney

GlobalFab argues that the County Attorney’s testimony is necessary to explain his 

statement during an expunction hearing that representations had been made to him which were 

not correct. We agree that the record shows a connection between the defendants and the 

individual who received the expunction in the case in which Allen Galyean was the alleged 

victim. But this connection is too remote to establish substantial need. The record suggests that 

Allen Galyean may have made misrepresentations to the County Attorney about the defendants 

in the current case, or that the representations were eventually determined to be untrue without 

any intentional misrepresentations being made by Allen Galyean—not that Allen Galyean 

knowingly provided false information about the defendants to the County Attorney. Moreover, 

the County Attorney’s testimony regarding the expunction could potentially be impermissible 

under Chapter 55 of the Texas Code of Criminal Procedure, particularly if his testimony is used 

to authenticate records or files relating to the arrest of that individual.

5

 See TEX. CODE CRIM.

PROC. ANN. art. 55.04, § 1 (West 2011).

It is undisputed that the County Attorney had communications with Allen Galyean. But 

the County Attorney argues that the defendants have “no idea what [the] statements would be” if 

they were permitted to question him. Indeed, this seems to be the reason GlobalFab seeks the 

 

5 Chapter 55 of the Texas Code of Criminal Procedure sets forth the requirements and procedures for 

expunctions, and the effect of obtaining an order of expunction in felony and misdemeanor cases. See generally

TEX. CODE CRIM. PROC. ANN. arts. 55.01-.02 (West Supp. 2014), arts. 55.03-.06 (West 2011).
10

County Attorney’s testimony. Nevertheless, GlobalFab has not shown that it has a substantial 

need for the County Attorney’s testimony to prove the elements of causation and malice. 

The affidavit for the search warrant for GlobalFab’s place of business is not in the record. 

“No warrant shall issue for any purpose . . . unless sufficient facts are first presented to satisfy 

the issuing magistrate that probable cause does in fact exist for its issuance.” TEX. CODE CRIM.

PROC. ANN. art. 18.01(b) (West Supp. 2014). The record reflects that it is city policy that no 

search warrants will be issued “unless they are authorized by the Chief, Assistant Chief, Deputy 

Chief[,] or CID Lieutenant.” CID Lieutenant Craig Sweeney executed the search warrant on 

GlobalFab’s place of business, was deposed, and was subpoenaed for trial. GlobalFab has not 

shown that Sweeney’s testimony or testimony from any other authorized individual could not 

satisfy the causation or malice element of their malicious prosecution claim. Nor has GlobalFab 

shown that Allen Galyean knowingly provided the allegedly false information to only the County 

Attorney. Therefore, we cannot conclude that the County Attorney’s testimony is the only 

source from which the information GlobalFab seeks can be obtained.

Conclusion

After viewing the record as a whole, we conclude that GlobalFab has not satisfied its 

burden of showing that it has a substantial need for the County Attorney’s testimony to prove its 

claim for malicious prosecution. We agree with the trial court’s and GlobalFab’s assertions that 

In re Bexar County is distinguishable because the County Attorney has refused to disclose the 

prosecution file. See In re Bexar Cnty., 224 S.W.3d at 188-89. But this distinction does not 

create a substantial need for the County Attorney’s testimony when other sources are available to 

prove the elements of a claim. GlobalFab has not shown that other sources are unavailable.

Because we have concluded that GlobalFab has not shown substantial need, we do not address 

the undue hardship prong of Rule 192.5(b)(2). See TEX. R. APP. P. 47.1.

DISPOSITION

Based on the foregoing analysis, we hold that the trial court abused its discretion in 

denying the County Attorney’s motion to quash. Accordingly, we conditionally grant the 

County Attorney’s petition for writ of mandamus and direct the trial court to vacate its June 6, 

2014 order denying the motion. We trust that the trial court will promptly comply with this 

opinion and order. The writ will issue only if the trial court fails to do so within ten days after 
11

the date of the opinion and order. The trial court shall furnish this court, within the time for 

compliance with this court’s opinion and order, a certified copy of its order evidencing 

compliance. 

 

JAMES WORTHEN

Chief Justice

Opinion delivered February 11, 2015.

Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ORDER

FEBRUARY 11, 2015

NO. 12-14-00153-CV

MICHAEL E. JIMERSON,

Relator

v.

HON. GUY W. GRIFFIN,

Respondent

 

 

 ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed 

by MICHAEL E. JIMERSON, who is the relator in Cause No. 2010-017, pending on the 

docket of the 4th District Court of Rusk County, Texas. Said petition for writ of mandamus 

having been filed herein on June 13, 2014, and the same having been duly considered, because it 

is the opinion of this Court that the petition is meritorious, it is therefore CONSIDERED, 

ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, 

conditionally granted.
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And because it is further the opinion of this Court that the trial judge will 

act promptly and issue an order vacating its vacate its June 6, 2014 order denying the motion to 

quash, the writ will not issue unless the Honorable Guy W. Griffin, Judge of the 4th District 

Court of Rusk County, Texas, fails to do so within ten (10) days from the date of this order.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Neeley, J., Bass, Retired J., Twelfth Court of Appeals,

sitting by assignment.