State's Motion to Quash Subpoenas Duces Tecum

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Special prosecutors in the securities fraud case against Texas Attorney General Ken Paxton filed a motion to quash the defense's requests for information on grand jury selection.

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CAUSE NOS.

416-81913-2015, 416-82148-2015,416-82149-2015

THE STATE OF TEXAS
V.

WARREN KENNETH PAXTON JR.

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§
§
§
§

IN THE DISTRICT COURT
COLLIN COUNTY, TEXAS

416TH JUDICIAL DISTRICT

STATE'S MOTION TO QUASH SUBPOENAS DUCES TECUM
AND MOTION FOR PROTECTIVE ORDER

To THE Honorable George Gallagher, Presiding Judge:

COMES NOW, THE STATE OF TEXAS, by and through its undersigned Collin

County District Attorneys Pro Tern, and pursuant to Article 39.04,' Texas Code of
Criminal Procedure, and Rule 176, Texas Rules of Civil Procedure, files its Motion to

Quash the Applications for Subpoenas Duces Tecum filed in these causes by Warren

Kenneth Paxton ("Paxton") to Cynthia Jacobsen, Sue Maienschein, Jan Dugger, Kathy
Bounds, and Sheri Veccera ('Svitnesses"). For those reasons set out below, Paxton's

applications are an improper, indeed, desperate attempt at obtaining pre-trial discovery,

fall far short of meeting the standard of materiality and relevance required by controlling
legal authority, and constitute an unsupported and unsupportable attempt to conduct the

very type of fishing expedition anathema to the criminal justice system. See Sparkman v.
State, 997 S.W.2d 660, 667 (Tex.App.- Texarkana 1999, no pet.)(when accused fails to
shoulder his burden of materiality, "frivolous and annoying requests [c]ould make the

' "The rules prescribed in civil cases for issuance of commissions, subpoenaing witnesses,
taking the depositions of witnesses and all other formalities goveming depositions shall, as to the
manner and form of taking and retuming the same and other formalities to the taking of same,
govem in criminal actions, when not in conflict with this Code."
1

trial endless and unduly burdensome on the Court and all officers thereof.")(citation

omitted). Accordingly, this Court should grant the State's motion to quash, and order
that no further subpoenas be issued to the witnesses absent prior written consent of the
Court.

I. Procedural History and Factual Statement

On July 7, 2015, Paxton was indicted for the third-degree felony of acting as an
investment advisor representative without being registered by the State Securities Board

by a grand jury empaneled by Judge Chris Oldner, 416"^ Judicial District Court of Collin
County, Texas. On August 28, 2015, Paxton was indicted by that same grand jury for
two counts of first-degree securities fraud. Paxton appeared in court with counsel- and
entered pleas of not guilty on all three felony charges on August 27, 2015. On October 1,

Paxton filed five applications for subpoena duces tecum' with the clerk of the 416"^
Judicial District Court, requiring the following witnesses to appear before court on
October 9, 2015 by 12:00 p.m., with the following material:

Sheri Vecera, court reporter for the 199^'^ Judicial District Court,^ to produce
"Complete transcript and audio recording of proceedings for the selection and/or
empanelment of the 199''^ Judicial District Court's January-June 2015 Grand
Jury."

Kathy Bounds, court reporter for the 417^'^ Judicial District Court,^ to produce
"Complete transcript and audio recording of proceedings for the selection and/or
- After accepting Paxton's pleas of not guilty, this Court granted the motion to withdraw as
Paxton's counsel filed by his then-counsel, Joe Kendall and the Kendall Law Group. Paxton has
ultimately obtained new counsel.

^ True copies of these applications is attached hereto as exhibits. Moreover, this Court can take
judicial notice of the contents of its file in this matter. See Tex. R. Evid. 201(b) & (d).

^ The Honorable Angela Tucker. Judge Presiding.
The Honorable Cynthia Wheless. Judge Presiding.

empanelment of the 417"^ Judicial District Court's January-June 2015 Grand
Jury."

Jan Dugger, court reporter for the 296^'^ Judicial District Court/' to produce
"Complete transcript and audio recording of proceedings for the selection and/or

empanelment of the 296"' Judicial District Court's July-December 2015 term
Grand Jury."

Sue Maienschein, court reporter for the 416"' Judicial District Court, to produce
"Complete transcript and audio recording of proceedings for the selection and/or

empanelment of the 296"' Judicial District Court's July-December 2015 tenn
Grand Jury."
Cynthia Jacobsen, Human Resource Manager, Collin County, Texas to produce
"Copies of any and all documents, statements and/or affidavits related to a

personnel action involving a deputy clerk involving the 416"' Judicial District
Court's July-December 2015 Grand Jury."
11» The Staters Standing to Assert this Motion

As a party to these proceedings, the State is entitled to file a motion to quash an

application for subpoena duces tecum, which has been served on a non-party witness.^
Tex. R. Civ. Proc. 192; May v. State, 139 S.W.3d 93, 101 (Tex.App. - Texarkana 2004,

pet. refd); Ealoms v. State. 983 S.W.2d 853, 858 (Tex.App.- Waco 1998. pet. refd).

Because the State is a party to this criminal proceeding, it has standing to file this motion
to quash.
111. Paxton Cannot Demonstrate the Evidence Sought is Material

Before a clerk or his deputy is required or permitted to issue a subpoena in any
felony case pending in any district or criminal district court. Article 24.03(a), Code of

The Honorable John Roach, Jr., Judge Presiding.

^ In civil cases, courts have concluded that a party may quash a subpoena served by an opposing
party on a non-party witness. In re Shell E & P, Inc., ami Swepi, LP., 179 S.W.3d 125, 127
(Tex.App. - San Antonio 2005)(orig. proceeding); Pelt v. State Board ofInsuranee, 802 S.W.2d
822, 826 (Tex.App.- Austin 1990, no writ).

Criminal Procedure requires that the defendant or his lawyer must file an application
stating, inter alia, the name and location of a witness and that "the testimony of said
witness is material to the ...the defense."

While Paxton's applications, as they must,

recite this conclusory claim, even a cursory review of the evidence he seeks to obtain

reveals that none of the evidence sought in any of the applications even approaches the
threshold standard of materiality.

See Sparkman v. State, 997 S.W.2d at 667 ("To

exercise the federal constitutional compulsory process right, the defendant must make a

plausible showing to the trial court, by sworn evidence or agreed facts, that the witness'
testimony would be both material and favorable to the defense."). On this basis alone,
this Court should grant this motion to quash. See Martin v. Darnell, 960 S.W.2d 838,

840-41 (Tex.App.- Amarillo 1997)(orig. proceeding)(if defendant does not shoulder
burden of demonstrating materiality, court must quash application for subpoena).
While the Rules of Evidence do not define what type of evidence may be

"material," the Court of Criminal Appeals has held that for evidence to be "material," it
"must be shown to be addressed to the proof of a material proposition, i.e., 'any fact that

is of consequence to the determination of the action.' if the evidence is offered to help
prove a proposition which is not a matter in issue, the evidence is immaterial.'" Miller v.
State, 36 S.W.3d 503, 501 (Tex.Crim.App. 2001)(citing 1 Steven Goode et al., TEXAS

Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 401.1 (2"''
ed 1993 & Supp. 1995); see also Brown v. State, 757 S.W.2d 739, 740 (Tex.Crim.App.

1988)("[F]or an item to alter the probabilities of the existence of the consequential fact...

it must logically increase one's knowledge and enhance the likelihood of ascertaining the

truth about the fact."); Black's Law Dictionary (7"' ed.)(defining "materiar' evidence
as that which is "significant to the issue or matter at hand").

Viewed against this

backdrop of authority, none of the evidence Paxton seeks to obtain comes within an area

code of meeting this standard of materiality.

At the outset, the applications for subpoena duces tecum seeking the court

reporters of the 199"' and 417"' Judicial District Courts to produce "Complete transcript
and audio recording of proceedings for the selection and/or empanelment" of their

respective January-June 2015 Grand Juries, or for the court reporter of the 296"' Judicial
District Court to produce this material from the July-December 2015 Grand Jury, comes

perilously close to make-work. It is un-contradicted that the State did not present

evidence of Paxton's criminality to either January-June grand jury,^ or for that matter, to
the 296"' Judicial District Court. July-December grand jury.Accordingly, Paxton cannot
shoulder his burden of showing that any evidence relating to the selection or

^ The media has speculated that the transcripts from the two January-June grand juries before
whom the Special Prosecutors did not appear, grand juries selected and empaneled well in
advance of the investigation in Collin County spearheaded by the Texas Rangers, might "reveal
what, if anything, came up about [Paxton] and possible criminal charges during the selection
process." www.dallasnews.com ("Paxton team seeks details on grand jury selection")(October
1, 2015)(last visited October 3, 2015). Assuming the media has managed to hone in on Paxton's
stratagem for filing this application, even if Paxton's name or his ongoing legal troubles were
broached during the selection processes, this information, if any, neither provides any safe haven
for Paxton, nor sheds any light on his three pending felonies, so as to meet the required standard
of materiality. See Miller v. State. 36 S.W.3d at 507; Brown v. State, 757 S.W.2d at 740.
Whether the Special Prosecutors elected to present evidence of Paxton's criminality to the

416^*^ Judicial District Court grand jury as opposed to the grand jury selected and empaneled by
the 296"' Judicial District Court is a decision neither subject to judicial review nor a proper
matter for the subpoena duces tecum Paxton has sought to file in this matter.

empanelment of any of these three grand juries is "addressed to the proof of a material

proposition, i.e., 'any fact that is of consequence to the determination of [this] action,"'
Miller v. State. 36 S.W.3d at 507. or that this evidence will somehow ''alter the

probabilities of the existence of [any] consequential fact [and] ... logically increase one's
knowledge and enhance the likelihood of ascertaining the truth about the [consequential]
fact." Brown v. State. 757 S.W.2d at 740.

Paxton's request for evidence surrounding the empanelment and selection of the

416^'^ Judicial District Court's grand jury suffers from the same fatal deficiencies as his

boilerplate applications for infonnation regarding the three other grand juries. Make no

mistake, the grand jury empaneled in the 416^'' Judicial District Court indicted Paxton for
the third-degree felony of acting as an investment advisor representative without being

registered by the State Securities Board, and for two counts of first-degree securities
fraud. But that is hardly the end of the matter as it relates to the Paxton's application.
Absent a claim that members of a identifiable minority group were purposefully excluded

from serving on the grand juiy,'^' nothing about the random selection and empanelment of

In Castenecia v. PartidcL 430 U.S. 482, 494-495 (1979), a case that dealt with the now-

repealed "key-man" system of selecting grand jurors in Texas, the Supreme Court held that an
equal protection violation occurs when the government purposefully excludes certain identifiable
groups from serving on a grand jury. One of the elements the Court looked to in Casteneda was
the fact that the "key-man" system, sometimes referred to as "pick-a-pal," was "a selection
procedure that was susceptible of abuse or is not racially neutral." Id. at 494. This Court can
take judicial notice that even though he was not required to do so under the law that existed at
the time his grand jury was selected and empaneled. Judge Oldner selected and empaneled this
grand jury from a random driver's license venire as he would with the venire assembled for the
selection and empanelment of any petit jury. And a review of the racial makeup of the grand
jury that indicted Paxton readily reveals that any such claim would be as baseless as it would be
gratuitous.

this grand jury could ever come close to meeting the threshold mandate of materiality.

Indeed, nothing about the selection and empanelment of this grand jury has any bearing
whatsoever on the ultimate facts that are of consequence in this matter, including but not
limited to:

Did Paxton knowingly and intentionally render services as an investment advisor
representative to James and Freddie Henry when he was not registered as an
investment adviser representative by and with the Securities Commissioner of the
State of Texas?

Did Paxton unlawfully and intentionally, offer to sell and sell to Byron Cook
securities in an amount of $100,000 or more, namely, stock issued by Servergy,

Inc., and Paxton did then and there directly and indirectly engage in fraud by

intentionally failing to disclose to Cook the material facts known Paxton for the
purpose of inducing Cook to purchase said securities, to wit: that Paxton would be
compensated by Servergy, Inc. in the form of 100,000 shares of Servergy, Inc.
stock, for selling stock in Servergy, Inc., to Cook, and that Paxton had not, and
was not, investing his own funds in Servergy, Inc.?

Did Paxton unlawfully and intentionally, offer to sell and sell to Joel Hochberg
securities in an amount of $100,000 or more, namely, stock issued by Servergy,
Inc.. and Paxton did then and there directly and indirectly engage in fraud by

intentionally failing to disclose to Hochberg the material facts known to Paxton for
the purpose of inducing Cook to purchase said securities, to wit: that Paxton would
be compensated by Servergy, Inc. in the fonn of 100,000 shares of Servergy, Inc.
stock, for selling stock in Servergy, Inc., to Cook, and that Paxton had not, and
was not, investing his own funds in Servergy, Inc.?

Finally. Paxton's application for subpoena duces tecum to the Human Resource
Manager, Collin County. Texas to produce ''Copies of any and all documents, statements

and/or affidavits related to a personnel action involving a deputy clerk involving the 416'"^
Judicial District Court's July-December 2015 Grand Jur>'," is as devoid of merit as its

ancestors." Once again, even assuming that any such documentation exists, nothing
about it comes close to meeting Paxton's burden of demonstrating materiality.

This

Court, accordingly, must grant this motion to quash. See Coleman v. State, 966 S.W.2d
525, 528-29 (Tex.Crim.App. 1998)(court correctly granted motion to quash subpoena

where defendant failed to demonstrate evidence sought to be elicited was material).
IV. Paxton Improperly Uses his Subpoenas as Weapons for Discovery

Paxton does not have a general right to discover evidence in the State's

possession, but has instead been afforded limited discovery as set out in Article 39.14,

Code of Criminal Procedure.'- Shpikula v. State, 68 S.W.3d 212, 221 (Tex.App.Houston [14"' Dist.] 2002, pet. refd). Article 39.14 provides the exclusive manner by
which Paxton may obtain pretrial discovery and provides that a trial court may order the

State "before or during'' the trial of a criminal action to produce certain evidentiary items
more fully described in that article. Liivano v. State, 183 S.W.3d 918 (Tex.App.- El Paso

2006, pet. refd). Although Article 24.02,'^ Code of Criminal Procedure provides that
Paxton may file an application for subpoena duces tecum. Article 39.14 also mandates

" Given the wholly conclusor>' nature of this request, the State's best guess is that this
application involves the accidental dissemination of the names and addresses of the grand jurors
by a Collin County deputy district clerk, and what involvement, if any. Judge Oldner had in any
investigation of the incident or discipline of those involved. See www.chron.com, "Paxton grand
jury names mistakenly released after judge orders them sealed,*' (July 9, 20l5)(last visited
October 2, 2015).

While this case is not governed by the changes to pre-trial discovery as embodied in the
changes to Article 39.14 wrought by the Michael Morton Act. the State is nevertheless
conducting discovery under the Morton Act.

"If a witness have in his possession any instrument of writing or other thing desired as
evidence, the subpoena may specify such evidence and direct that the witness bring the same
with him and produce it in court."
8

thai Paxton must first show that the material sought are not otherwise privileged and

"constitute or contain evidence material to any matter involved in the action." (emphasis

added). As set out above, Paxton does not, because he cannot, meet this threshold
standard.

Moreover. Paxton's applications ignore the well-settled precept that a

subpoena duces tecum is not to be used as a discovery weapon, but as an aid to discovery

based upon a show ing of materiality and relevance. Ealoms v. Slafe. 983 S.W.2d at 859.
Because Paxton's ploy in filing these applications for subpoena duces tecum is an

impermissible attempt at obtaining pre-trial discovery, indeed, one wholly bereft of
materiality, this Court should grant this motion to quash. See Martin v. Darnell, 960
S.W.2d 838, 840-41.

THEREFORE, the State respectfully prays that this Court set this matter for a

hearing, and, at the conclusion thereof, grant the foregoing Motion to Quash, and order
that no further subpoenas be issued to these witnesses absent prior written consent of the
Court.

Respectfully submiUed.

BRIAN W/WICE

"Thrtyri(/Z'eplre

440 Louisttrtia. Suite 900

Houston, Texas 77002

(713) 524-9922 PHONE
(713) 236-7768 FAX
Bar No. 21417800

KENT A. SCHAFFER

712 Main, Suite 2400
Houston. Texas 77002

(713)228-8500 PHONE
(713)228-0034 FAX
Bar No. 17724300
NICOLE DeBORDE

712 Main. Suite 2400
Houston. Texas 77002

(713)228-8500 PHONE
(713)228-0034 FAX
Bar No. 00787344

ATTORNEYS PRO TEM
THE STATE OF TEXAS

CERTIFICATE OF SERVICE

Pursuant to Tex.R.App.P. 9.5(d). I certify that a copy of this motion was served
upon all counsel for Paxton by e-mail on October 6. 2015.

IAN W. WI

10

CAUSE NOS.

416-81913-2015, 416-82148-2015, 416-82149-2015

THE STATE OF TEXAS

§

V.

§

WARREN KENNETH PAXTON JR.

§

IN THE DISTRICT COURT

§

COLLIN COUNTY, TEXAS

§

416TH JUDICIAL DISTRICT

ORDER

It is hereby Ordered, Adjudged and Decreed that the State's Motion to Quash
and Motion for Protective Order is hereby GRANTED.
No further process shall be exercised against Cynthia Jacobsen, Sue Maienschein,
Jan Dugger, Kathy Bounds, and Sheri Veccera without prior written approval by the
Court.

DONE and ENTERED this

day of

. 2015.

George Gallagher
Assigned Judge
416^'^ Judicial District Court

Collin County, Texas

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