No. - -___

IN THE 

COURT OF CRIMINAL APPEALS OF TEXAS

IN RE JANA DUTY,

RELATOR

IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY 

FOR THE STATE OF TEXAS, WILLIAMSON COUNTY

RELATOR’S MOTION FOR LEAVE TO FILE 

PETITION FOR WRIT OF MANDAMUS

TRIAL COURT CAUSE NUMBER 13-0826-K277

IN THE 368TH DISTRICT COURT

OF WILLIAMSON COUNTY, TEXAS

HON. RICK J. KENNON

Brent Webster

State Bar No. 24053545

Assistant District Attorney

405 MLK Street, #1 

Georgetown, Texas 78626

Telephone: (512) 943-1234

Facsimile: (512) 943-1255

bwebster@wilco.org 

J. Woodfin Jones 

State Bar No. 10911700

ALEXANDER DUBOSE

JEFFERSON & TOWNSEND LLP

515 Congress Avenue, Suite 2350

Austin, Texas 78701

Telephone: (512) 482-9300

Facsimile: (512) 482-9303

wjones@adjtlaw.com

WR-83,585-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 4:20:00 PM

Accepted 7/16/2015 8:26:19 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 7/16/2015 ABEL ACOSTA, CLERK 
1

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

On behalf of the State of Texas, and based upon the arguments contained in

the attached petition, Relator Jana Duty, District Attorney for Williamson County, 

Texas, requests permission to file the attached Petition for Writ of Mandamus. The 

allegations in the petition complain of action taken by the 368th Judicial District 

Court of Williamson County, Texas, hereinafter “Respondent Court.” In support 

of this motion, Relator would show the Court the following:

I.

Jana Duty, hereinafter “Relator,” is a Texas citizen and elected official

whose rights and interests will be directly affected by the issuance of the writ.

II.

Presently in this matter, the Respondent Court has denied the State’s request 

to rescind an unconstitutional and void gag order signed on April 9, 2015. 

Respondent Court signed and entered a gag order, which consisted solely of a onesentence blanket prohibition that constitutes a broad prior restraint on the speech of 

the Relator and multiple others: “The parties, attorneys, and employees of the 

attorneys in this case are prohibited from communicating with the press/media 

regarding this case or publicly commenting on this case during the pendency of the 

proceedings.” Respondent Court is without discretion to violate Relator’s free 

speech rights and enter a gag order without first hearing evidence and making 
2

specific findings based on that evidence, pursuant to the Texas Supreme Court 

holding in Davenport and this Court’s holdings in Ex parte Foster and Ex parte 

McCormick. This gag order, drafted by Defense Counsel, lacks any of the specific 

findings required by law, is not narrowly tailored, and does not use the least 

restrictive means to achieve the goals of the order; nor was evidence heard before 

the gag order was entered. These errors render the gag order unconstitutional and 

void. This Court should allow the accompanying Petition for Writ of Mandamus 

to be filed and grant the requested relief because the Respondent Court lacks 

authority and/or is without discretion to bypass the process of hearing evidence and 

making specific findings supported by that evidence, consistent with Davenport, 

before entering a gag order.

III.

The Court should hear this case, because it involves an attempt by 

Respondent Court to unconstitutionally silence another elected official, the elected 

District Attorney of Williamson County. The obvious harm is exacerbated by the 

fact that the Respondent Court’s actions are now within nine months of the primary 

election for Relator’s re-election. This is a major case personally involving the 

elected District Attorney and the administration of justice in Williamson County; it 

is not a low-level dispute between an assistant district attorney and an associate 
3

judge. This dispute is at the intersection of the first amendment, the sixth 

amendment, and democratic elections. 

Moreover, this case deserves this Court’s attention because the Respondent 

Court is exercising unconstitutional prior restraint over the parties, attorneys, and 

attorney’s staff in the underlying case and, indirectly, over the press itself. Not 

only does the gag order hamper the press’s ability to get accurate coverage of the 

case, but the Respondent Court recently attempted to silence the press in this same 

case by instructing a reporter to remove an article relating to this case that the

Respondent Court thought to be incorrect. As the accompanying mandamus

petition demonstrates in the section titled, “The Court Should Grant Relief 

Through a Writ of Mandamus,” the Public and the democratic process are harmed 

by the gag order and the actions of the Respondent Court. 

III.

Since the Respondent Court is refusing to set aside the order signed on April 

9, 2015, after being notified that courts are without discretion to enter a gag order 

without first hearing evidence and making findings based on that evidence, 

pursuant to the ruling in Davenport, Relator requests this Honorable Court to grant 

Relator leave to file this Petition for Writ of Mandamus.

WHEREFORE, PREMISES CONSIDERED, the State prays the Court grant 

the Relator leave to file its Petition for Writ of Mandamus.
4

/s/ J. Woodfin Jones_______________

J. Woodfin Jones

State Bar No. 10911700 

ALEXANDER DUBOSE 

JEFFERSON & TOWNSEND LLP 

515 Congress Avenue, Suite 2350 

Austin, Texas 78701

Telephone: (512) 482-9300 

Facsimile: (512) 482-9303 

wjones@adjtlaw.com

/s/ Brent Webster_________________ 

Brent Webster

State Bar No. 24053545

Assistant District Attorney 

Williamson County, Texas

405 MLK Street, #1 

Georgetown, Texas 78626 

Telephone: (512) 943-1234 

Facsimile: (512) 943-1255 

bwebster@wilco.org

/s/ Eric Gutierrez_________________

Eric Gutierrez

State Bar No. 24089267 

Special Prosecutor 

Williamson County, Texas 

405 MLK Street, #1 

Georgetown, Texas 78626
5

CERTIFICATE OF SERVICE

A true copy of the above Motion for Leave to File Petition for Writ of 

Mandamus has been served on the Respondent, Hon. Rick J. Kennon, 368th 

District Court, 405 M.L.K. Street, Georgetown, Texas 78626 at 

rkennon@wilco.org, and the Real Party in Interest’s attorneys of record, Kristen 

Jernigan, 207 S. Austin Ave., Georgetown, Texas 78626 at 

kristen@txcrimapp.com, Ryan Deck, 107 N. Lampasas, Round Rock, Texas 

78664 at ryandecklaw@gmail.com, and R. Scott Magee, 107 N. Lampasas, Round 

Rock, Texas 78664 at scott@mageefirm.net on this the 15th of July, 2015.

/s/ Brent Webster_________________ 

Brent Webster

State Bar No. 24053545

Assistant District Attorney 

Williamson County, Texas

405 MLK Street, #1 

Georgetown, Texas 78626 

Telephone: (512) 943-1234 

Facsimile: (512) 943-1255 

bwebster@wilco.org