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TEXAS COURT OF CRIMINAL APPEALS
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CASE NO.
WR-83,719-01
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IN RE STATE OF TEXAS EX REL. ABELINO REYNA
Relator
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Trial Cause No. 2015-1955-2
In the 54 District Court, McLennan County th
Honorable Matt Johnson, Presiding
Appellate Cause No. 10-14-00235-CR
10 Court of Appeals th
Waco, Texas
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EMERGENT MOTION BY REAL-PART-IN-INTEREST MATTHEW
ALAN CLENDENNEN TO VACATE STAY BASED ON RELATOR’S
UNCLEAN HANDS
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F. CLINTON BRODEN
TX Bar No. 24001495
Broden, Mickelsen, Helms & Snipes, LLP
2600 State Street
Dallas, Texas 75204
(214) 720-9552
(214) 720-9594(facsimile)
Attorney for Matthew Alan Clendennen
I
On August 7, 2015, the Tenth Court of Appeals entered its unanimous opinion
conditionally granting a Writ of Mandamusin this case in the event the District Court
did not withdraw its unconstitutional gag order by August 14, 2015.
On August 13, 2015 and upon Relator’s opposed motion, this Court stayed the
Court of Appeals’ Writ of Mandamus and ordered the partiesto brief three questions.
After the filing of the briefs in this case, Relator has continued to violate the
very gag order he requested this Court to consider in his Petition for Writ of
Mandamus to this Court.
II
“Mandamus is an extraordinary remedy, not issued as a matter of right, but at
the discretion of the court. Although mandamus is not an equitable remedy, its
issuance is largely controlled by equitable principles.” Riverfront Associates v.
Rivera, 858 S.W.2d 366, 367 (Tex. 1993). Indeed, this Court has noted that
“equitable principles are necessarily involved when we consider whether mandamus
should issue.” Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Cr. App.1987).
Of course, it is also wellsettled that “a party seeking an equitable remedy must
do equity and come to court with clean hands.” City of Fredericksburg v. Bopp, 126
S.W.3d 218, 220 (Tex. App. – San Antonio 2003). In fact, the law recognizes that
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“the doctrine of unclean hands applies to a litigant whose own conduct in connection
with the same matter or transaction has been unconscientious, unjust, marked by a
want of good faith or violates the principles of equity and righteous dealing.” Id. at
221.1
In sum, “Texas courts have held that, because mandamus is governed to some
extent by equitable principles, a party that comes before the court with unclean hands
is not entitled to issuance of a writ of mandamus.” In re Simon Property
(Delaware), Inc. 985 S.W.2d 212, 215 (Tex. App .– Corpus Christi 1999) (emphasis
added), citing, Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n. 2 (Tex.1990).
III
It appearsthat, on September 18, 2015, Relator, Abelino Reyna, again violated
the very gag order he is asking this Court to uphold. Indeed, KWTX News in Waco,
Texas reported:
McLennan County District Attorney Abel Reyna, in a brief statement,
said “someone violated their ethical and legal obligations” in making the
material available to AP.
“Our focus in the Twin Peaks matter will remain on the facts and the law
and not it,” he said.
See also Olmstead v. United States, 277 U.S. 438, 483–484 (1928) (Brandeis, J.
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dissenting) (Regarding unclean hands: “The court's aid is denied only when he who seeks it has
violated the law in connection with the very transaction as to which he seeks legal redress”).
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Attachment A hereto (emphasis added).
2
Mr. Clendennen agreesthat, if itwas a defense attorney who released discovery
materials to the AP, that attorney may very well have violated his/her “ethical and
legal obligations.” On the other hand, Mr. Clendennen strongly disagrees that
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Relator Reyna’s focus has been on the “facts and the law” of this case and submits
that Relator has fully contributed to “the ridiculousness that is occurring all around”
the case.
IV
Mr. Clendennen continues to submit that what has occurred and what is
occurring in relation to the gag order is very transparent to even the casual observer.
Immediately after the May 17, 2015 incident, Relator, personally, along with other
state actors sought to fill the public’s mind with pictures of roving “outlaw biker
gangs” and, only when they believed that they sufficiently accomplished that task,
Relator requested a gag order. But it seems like even that is not enough for Relator.
This is not the first time Relator Reyna has violated the gag order he seeks this Court to 2
enforce using equitable principles. On or about July 8, 2015, Mr. Reyna gave a press interview
discussing the selection of the grand jury foreperson for the grand jury that could possibly
consider Mr. Clendennen’s case. See Appendix 1 to Mr. Clendennen’s September 14, 2015
brief. During that interview, Mr. Ryna told the media: “That’s the system. He was chosen totally
at random, like. the law says.”
Of course, the person who released the material may very well be a conscientious 3
whistleblower from Relator’s own office or from a law enforcement agency associated with the
case.
4
Relator apparently believed he was creating a situation where Mr. Clendennen and
his attorneys were denied their free speech rights under the United States and Texas
Constitutions but he was free to continue to make statements to the press.
As explained in Mr. Clendennen’s September 14, 2015 brief, the ruling by the
Waco Court of Appeals was not an abuse of discretion for several reasons. First, the
district court did not have jurisdiction to enter the gag order. Second, there was no
“imminent or irreparable harm” or even a “substantial likelihood of prejudice” to
justify the extraordinary broad gag order. Third, there was no indication that the
District Court in this case considered any less restrictive means of preserving the
rights to a fair trial- a trial that would be at least a year in the future- instead of
imposing blanket restrictions on free speech rights. Fourth, a gag order in a case
involving 177 defendants in different courts, involving related civil litigation in state
and federal court, and involving judges who give their own press interviews is
unworkable as a practical matter.
To compound all of this, it is now abundantly clear that Relator comes to this
Court with unclean hands. Mr. Clendennen has been denied his free speech rights for
more than two months and Relator has succeeded in persuading this Court to issue
a stay and thereby continue the denial of such rights while, at the same time, Relator
goesright on making statementsto the media. For that reason alone, Mr. Clendennen
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submits that the stay issued by this Court was improvidently granted and requests the
Court to dissolve the stay as soon as practical.
Respectfully submitted,
/s/F. Clinton Broden
F. CLINTON BRODEN
TX Bar No. 24001495
Broden, Mickelsen, Helms & Snipes, LLP
2600 State Street
Dallas, Texas 75204
(214) 720-9552
(214) 720-9594(facsimile)
Attorney for Matthew Alan Clendennen