MOTION TO QUASH INDICTMENTS BECAUSE JUDGE · PDF fileMotion to Quash Indictments Because Judge...

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions

Compromised the Integrity of the Indictment Process 1

NO. 416-81913-2015

NO. 416-82148-2015

NO. 416-82149-2015

THE STATE OF TEXAS § IN THE DISTRICT COURT

§

V. § 416th JUDICIAL DISTRICT

§

WARREN KENNETH PAXTON, JR. § COLLIN COUNTY, TEXAS

__________________________________________________________________

MOTION TO QUASH INDICTMENTS BECAUSE

JUDGE OLDNER’S CUMULATIVE ACTIONS COMPROMISED

THE INTEGRITY OF THE INDICTMENT PROCESS __________________________________________________________________

TO THE HONORABLE JUDGE GEORGE GALLAGHER:

Warren Kenneth Paxton, Jr. (“Paxton”), files this Motion to Quash

Indictments Because Judge Oldner’s Cumulative Actions Compromised the

Integrity of the Indictment Process as follows:

I. INTRODUCTION

Paxton was indicted by the 416th Grand Jury sitting in Collin County, Texas,

on July 7, 2015, for acting as an investment advisor representative without being

registered with The State Securities Board. On July 28,, 2015, the same Grand Jury

indicted Paxton on two counts of securities fraud (collectively, “Indictments”).

Christopher Oldner, Collin County District Judge of the 416th Judicial District

Court presided over the Grand Jury. Judge Oldner’s cumulative actions

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surrounding the Indictments justifies their quashing based upon violations of

Paxton’s due process rights under the Fourteenth Amendment to the United States

Constitution and Article 1, Sections 13, 14 and 19 of the Texas Constitution (due

course of law).

Judge Oldner’s cumulative actions which warrant quashing the Indictments

include:

Improper impanelment of the 416th Grand Jury;

The ordering of information restrictions on the identity of grand jurors

contrary to Texas law;

Improper entry into the grand jury room while the 416th Grand Jury

was in session;

Violation of grand jury secrecy by informing an unauthorized person

that Paxton had been indicted when the information was sealed and

non-public;

Improper withholding of the July 7th

Indictment document upon a true

bill and not providing it to the Collin County District Clerk.; and

Improper denial of summons and issuing arrest warrants for Paxton

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II. JUDGE OLDNER’S IMPROPER IMPANELMENT

OF THE 416TH

GRAND JURY

The grand jury that indicted Paxton was impaneled in a manner inconsistent

with law. Indictments were returned by a grand jury of the 416th District Court

impaneled on June 12, 2015, to serve July 1, 2015, thru December 31, 2015

(“Grand Jury”). (See Exh. “A” at p. 33). During the Grand Jury formation, Judge

Oldner only impaneled persons summoned who were “willing to serve.” (Id. at 11-

13, 15, 33, 35). The twelve grand jurors and alternates were exclusively formed

from this group. Id. at 40. In so doing, Judge Oldner improperly added a

qualification for grand jury service not included within the statute.

Qualifications of a grand juror are set forth in Article 19.08 of the Texas

Code of Criminal Procedure. The Court shall test the qualifications of the grand

jurors before being impaneled by interrogation under oath by the Court or “under

his direction, touching his qualifications.” TEX. CODE CRIM. PRO. ART. 19.21-

19.22. The statutory questions are:

1. Are you a citizen of this state and county, and qualified to vote

in this county, under the Constitution and laws of this state?

2. Are you able to read and write?

3. Have you ever been convicted of a felony?

4. Are you under indictment or other legal accusation for theft or

for any felony?

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TEX. CODE CRIM. PRO. ART. 19.23.

There is no statutory qualification for “willingness” to serve as a grand juror

anywhere in Texas law. Instead, persons who appear qualified according the

above questions shall be accepted by the Court unless it is shown that he/she is not

of sound mind or good moral character or not, in fact, qualified. See TEX. CODE

CRIM. PRO. ART. 19.24. Judge Oldner improperly imposed an additional extra-

statutory qualification, “willingness” to serve, and then formed the grand jury

exclusively from those people who raised their hands. (See Exh. “A” at 11-13, 15,

33, 35).

Shortly after beginning voir dire, Judge Oldner listed the statutory

qualifications aloud. (See id. at pp. 5-6). Then he asked that “if any of those

disqualifications apply to any one of you, any of them, please come forward now.”

(Id. at p. 6). Then, after interviewing a few people who stepped forward, he recited

the excuses within Article 29.25. (Id. at 9-10). Finally, Judge Oldner decided to

ask for volunteers to serve on the grand jury, explaining as follows:

I’m going to, since we have such a long line here, I’m going to do

something to try to save everybody a little bit of time, because some

of you have a very similar excuse, like I know you’re in college.

Those of you remaining seated and you do not have a reason, a

disqualification, you -- either a disqualification or an excuse that lets

you out of jury service, how many of you, if you would raise your

right hand, are willing to serve on the Grand Jury if called? Of

those of you who are seated, how many of you would be willing to

do it? All right. If all of you that have your hand raised, if you

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come over and have a seat on the left-hand side over here if you’re

willing to serve. Just, yeah, the left, kind of the left of that wooden

post would be good enough. Yes, ma’am. That's perfectly fine.

Anywhere in that area right there is fine. Here is what we’re going to

do to try to save everybody a little bit of time. This is a little bit of a

different way of impaneling panels than we’ve done in the past. Since we have these people – which by the way, y’all should give

them a round of applause, if you’re willing to serve on the Grand Jury.

There are still a couple of hoops we have to jump through before I can

say all of y’all to go home, but I need to have some time to talk and

get the list of names here and do a little bit of work with the

people willing to serve. So instead of talking to each of you

individually, y’all need to sit down, relax for a minute, let me see if

we have enough people here who are qualified and don’t meet any of

the issues we need to address. And if that works, will be able to get

our Grand Jury from the people here to my left. So it will involve

all of y’all sitting around here a little bit. Relax for a second, let us

work here on these people, and we’ll be back in just a second.

(Exh.“A” at pp. 10-11) (Emphasis Added).

After inquiring about the various parts of the county where the volunteers

lived, Judge Oldner qualified them individually, beginning “[a]ll right. Those of

you willing to serve, I have some more specific questions I’m going to ask you

individually.” Id. at 15. He examined seventeen regarding the four statutory

qualifications asking four questions of each. Id. at 15-32; TEX. CODE CRIM. PRO.

ART. 19.23. Later, he impaneled a grand jury exclusively from this group,

recognizing “because of the willingness of the persons who are going to serve, we

are going to be able to excuse the rest of you at this time.” Id. at p. 40. The oath

was administered to the fourteen thus qualified volunteers. Id. at pp. 43-44.

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However, willingness to serve is not a statutory qualification. By first imposing

this additional improper qualification, Judge Oldner excluded other members of the

array from grand jury service, before even testing their actual statutory

qualifications. This process is inconsistent with Texas law.

Courts are required to follow the "means and methods provided by the

legislature in selecting grand juries," and "an arbitrary disregard of those statutes in

the selection and organization of the grand jury vitiates and renders such grand jury

without authority." Ex parte Becker at 444.1 Judge Oldner did not follow the

“means and methods” rather he arbitrarily disregarded the statutes to, in his own

words, “save everybody a little bit of time.” The addition of this litmus test of

“willingness” to serve so that the Court could “save everybody a little bit of time”

disregarded the statute and deprived the grand jury of authority to indict anyone,

including Paxton.

III. JUDGE OLDNER ISSUED AN ORDER RESTRICTING THE IDENTITY

OF GRAND JURORS CONTRARY TO TEXAS LAW

On June 25, 2015, Judge Oldner issued an “Order Securing the Names and

Personal Information of the Grand Jurors” (“Order”) investigating Paxton.

(Exh.“B”). This Order restricts the release of the Grand Jury list which reflects the

names of individuals obtained in the Grand Jury’s organization which is a matter of 1All reported cases, including Becker, addressing irregularities in grand jury selection appear to

deal with the commissioner system, which is no longer the law and was not the method by which

this grand jury was selected.

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public record. The Order includes grand jurors’ “names” as being banned from

disclosure. This category is not found in the statute that Judge Oldner cites as

authority. See TEX. CODE OF CRIM. PRO. ART 19.42. By doing so, Judge Oldner’s

actions hamper Paxton’s ability to challenge the Grand Jury array. There was no

precedent for the issuance of this Order in Collin County.

On April 13, 2006, then Attorney General of Texas Greg Abbott addressed

this exact issue in a written opinion demonstrating the impropriety of Judge

Oldner’s Order. (See Ex. “C”). In his analysis, Governor Abbott wrote,

Although the proceedings of a grand jury - once it is organized - are

closed to the public, see id art. 20.011 (enumerating those who may be

present during grand jury proceedings); id. art. 20.02(a) (“The

proceedings of the grand jury shall be secret.“), there are no similar

provisions that release a court during the grand jury organization

process from the general rule articulated in article 1.24 of the

Code of Criminal Procedure that the “proceedings and trials in

the courts shall be open to the general public,” id. art. 1.24.

Indeed, article 19.27 expressly includes the public in the grand

jury organization process by permitting “any person [to]

challenge the array of jurors or any person presented as a grand

juror.” See id art. 19.27; see also id. arts. 19.21-.26 (requiring

court to test juror qualifications and present qualified jurors for

impanelment). Therefore, the grand jury organization process is

conducted in open court. As a practical matter, then, grand jurors’

identities will become public during the grand jury organization

process. Consequently, grand jury lists do not contain “personal

information” and must fall outside article 19.42’s bounds. See

GEORGE E. DIX & ROBERT O. DAWSON, 41 TEXAS PRACTICE:

CRIMINAL PRACTICE AND PROCEDURE § 18.06 (2d. ed. 2001) (stating

that the identity of a grand juror is public information despite article

19.42’s language because the qualifications of potential grand jurors

are tested in open court, among other things).

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Returning to your specific questions, we can find nothing in the

law that overcomes the presumption’ that these lists are public

information; therefore, a clerk or a judge has no duty to keep a grand

jury list confidential after the clerk has opened the envelope

containing the names of prospective grand jurors.2

Tx. Op. Att’y Gen. No. GA-0422 (2006) at pp. 3-4. (emphasis added).

Ironically, this Attorney General opinion is cited several times in Part A of

Chapter 2 of “the Collin County District Clerk Manual,” 2013. Judge Oldner

should have been aware that his restriction was improper.

IV. JUDGE OLDNER’S IMPROPER ENTRY INTO THE GRAND JURY ROOM

VIOLATES SECRECY REQUIREMENTS

July 7, 2015, was the first day that the 416th Grand Jury met for business

after impanelment. That was also the day the Grand Jury indicted Paxton for

acting as an Investment Advisor Representative without Being Registered

(Indictment No. 416-81913-2015). (Exh. “D”).

That same day our investigation indicates that Judge Oldner improperly and

without authority, twice entered the Grand Jury room where the 416th Grand Jury

was in session and meeting. Sometime after the return of the Indictment on the

evening of the 7th

, Judge Oldner admitted to four members of the District Clerk’s

staff that he had told the Grand Jury earlier in the day that their confidentiality was

2 n.2 from the A.G. Opinion, “For both civil and criminal cases, we presume that the courts’

records and proceedings are open to public scrutiny. See Ashpole, 778 S.W.2d at 170; TEX. CODE

CRIM. PROC. ANN. art. 1.24 (Vernon 2005).”

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protected by his June 25th Order and that he had “lied” to them regarding their

secrecy now that a list was distributed in violation of his Order. Judge Oldner’s

appearance before the Grand Jury was impermissible.

Paxton believes at least one witness will testify that Judge Oldner entered

the grand jury room twice while the grand jury was meeting and in session on July

7, the very same day Paxton was indicted. This action is improper because the

grand jury judge is not allowed in the grand jury room. See TEX. CODE CRIM. PRO.

ART. 20.011. Rather, when grand jurors have questions, they are either to go to the

judge’s courtroom or submit written questions. Id. at ART. 20.06. A judge is not

excepted from Art. 20.02’s secrecy requirement. By law, even when seeking

guidance from a Court, the grand jurors “shall so guard the manner of propounding

the manner of their questions as not to divulge the particular accusation before

them.” TEX. CODE CRIM. PRO. ART. 20.06.

TEX. CODE OF CRIM. PRO. ART. 20.011 authorizes only certain persons to be

present in the grand jury room while it is conducting proceedings. These persons

include the grand jurors, bailiffs, state attorneys, witnesses interpreters (if

necessary) and stenographic and/or video recording operators. Id. The presiding

judge is not listed in Art. 20.011. Therefore the judge’s presence in the grand jury

room while it is conducting proceedings is unlawful and wholly without authority

or authorization. See id.

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“When addressing a grand jury statutory violation, the proper subject of a

harm analysis is the product of those proceedings: the charging decision.” Mason

v. State, 322 S.W.3d 251, 257 (Tex. Crim. App. 2010).

The prejudicial inquiry must focus on whether any violations had an

effect on the grand jury's decision to indict. If violations did

substantially influence this decision, or if there is grave doubt that the

decision to indict was free from such substantial influence, the

violations cannot be deemed harmless.

Id. (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 108 S. Ct.

2369, 2378, 101 L. Ed. 2d 228 (1988)).

The Mason court instructs trial courts to conduct an independent

examination of the whole grand jury record to evaluate whether the presence of the

unlawful participant influenced the grand jury, and if so, grant the defendant’s

motion to quash. Id. To paraphrase Mason, when the presiding judge that picked

the grand jury supervises and assists in presenting material for the grand jury’s

consideration, his actions are likely to have more than “just a slight effect”

therefore Paxton’s Motion to Quash should be granted. See id. Alternatively, the

Court should Order that all grand Jury Records or mention of Judge Oldner be

released.

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V. JUDGE OLDNER IMPROPERLY RETAINS THE JULY 7, 2015,

INDICTMENT FOR THREE WEEKS

On July 7, 2015, Judge Oldner personally presented a Collin County

Criminal Clerk (“Clerk”) with an original document for filing with the District

Clerk’s Office. Judge Oldner revealed only a small portion of this document to the

Clerk. The Clerk file-marked and signed the corner of Judge Oldner’s document

then returned the original to him. The Clerk was neither given nor did the Clerk

retain a file-stamped copy of Judge Oldner’s document for the District Clerk’s

files. Rather, Judge Oldner took his original, filed stamped document and left the

District Clerk’s Office with it in violation of the Clerk’s policy. (See Exhs.

“E,”“M”)3.

Clearly, the July 7, 2015, Indictment bears the Clerk’s signature. Contrary

to Texas law and the District Clerk’s procedures, Judge Oldner secreted the

Indictment for the next few weeks. (Exh. “E”). Curiously, the July 7 Indictment

bears a document “header” of “7/28/15.” (Exh. “D”) The identical “7/28/15”

document header is also found at the top of each page of Indictments 2 and 3 –

which is the day those indictments were returned by the Grand Jury. (Exh. “F”).

The Clerk described his/her encounter with Judge Oldner on the afternoon of

July 7, 2015: 3 Original documents obtained from the District Clerk’s office are unredacted. Because of the

nature of these proceedings, Counsel do not wish to publish the names of the involved employees

at this juncture to avoid intrusion into their private lives.

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. . . .I met Judge Oldner at the east door and he entered the office with

two other gentlemen he introduced as a Texas Ranger and Special

Prosecutor. . . .Judge Oldner told me he had just accepted a sealed

indictment from the Grand Jury and needed to file it discreetly. He

had it in a brown envelope about 9”x12” in size. He asked me to file

mark the indictment and when I was ready to stamp it he said he was

only going to pull it out of the envelope far enough for me to see that

it was an indictment but he could not reveal the name or any other

information concerning the indictment just yet, as it was sealed. I

could see a blank for a cause number to be added and “The State of

Texas”. I did not see any other text of the document, but believed it to

be an indictment because Judge Oldner told me it was and we were in

the presence of the prosecutor. I file marked the document on the top

right corner at 2:58pm.

Judge Oldner said he would keep this sealed indictment in his office

until such time he could put it in the regular rotation. He then took the

envelope and I escorted him, the officer and the prosecutor back to the

east door of our office.

. . . .I reported to Ms. Thompson the Judge had filed a sealed

indictment that would be kept in his office until he added it to the

regular rotation.

(See Exh. “E”).4

The Grand Jury returned the first Paxton Indictment on July 7, yet it was not

properly processed until July 28th

, when the Grand Jury issued Indictments Two

and Three. Upon information and belief, Judge Oldner personally held onto the

First Indictment in Violation of Chapter 20 of the Code of Criminal Procedure.

When the indictment is ready to be presented, the Grand Jury shall, through their

formation, deliver the indictment to the Judge or Clerk of the Court. See TEX.

4 See footnote 3.

12



CODE CRIM. PRO. ART. 20.21. Afterwards a presentment of an indictment by a

Grand Jury, it shall be entered in the court’s record. See TEX. CODE CRIM. PRO.

ART. 20.22. There is no evidence that this was timely done on or about July 7,

2015.

If the defendant is not in custody or under bond when the indictment is

presented, as Paxton was not, the indictment may not be made public and the entry

in the record of the court relating to the indictment must be delayed until the capias

is served and the defendant is placed in custard or under bond. See TEX. CODE

CRIM. PRO. ART. 20.22(b). This provision further establishes the nonpublic waiver

of the indictment’s processing up to this point.

It is unknown why Judge Oldner held the First Indictment and did not

immediately surrender it to the District Clerk. Failure to do so is also counter to

the Code of Criminal Procedure that states a, “Capias shall be issued by the District

Clerk upon each indictment for felony presented after bail has been set or denied

by the Judge of the court.” See TEX. CODE CRIM. PRO. ART. 23.02(a). Clearly the

July 7th

Indictment was presented on that date, yet Judge Oldner ignored the law by

failing to timely issue a capias or allow Paxton to appear upon summons.

By holding the Indictment and not allowing the District Clerk to process it,

the District Clerk was thwarted in discharging her statutory duty to deliver the

capias/summons to the proper party. See TEX. CODE CRIM. PRO. ART.23.03(a).

13



Three weeks after, on July 28, two more indictments were issued. These

Indictments were also handled in a fashion that was inconsistent with standard

operating procedures. Another of the District Clerk’s employees noted:

At approximately 4:05 p.m., Judge Oldner along with four (4) other

gentlemen came to may desk here in the District Clerk’s 3rd

Floor

Office. The other gentlemen were two attorneys and two Texas

Rangers.

Judge Oldner presented me with two manila envelopes, one was

sealed and the other was unsealed. He instructed me that in those

envelopes contained indictments, placing them all into the same court.

As one of the envelopes was sealed, Judge Oldner gave me approval

to open the envelope in order to remove the sealed indictment. The

other envelope with two (2) Indictments was not sealed. As I had

never done a procedure like this before, I made various inquiries with

my co-worker, Sylvia Greer. She is my back-up to the Grand Jury –

Intake desk.

(Exh. “G”)5

VI. JUDGE OLDNER VIOLATED GRAND JURY SECRECY

On July 28, 2015, the Grand Jury returned two more Indictments against

Paxton (Indictment Nos. 416-81914-2015 and 416-81915-2015). None of the

Indictments were public on July 28, 2015. In fact, absolutely no information

should have been made public as the Indictments were locked up by the District

Clerk at approximately 5:05 p.m. that day. (Exhs. “G,” “H”). No details of the

Indictments should have been disclosed until August 3, 2015, when they were

unsealed in open Court. Nonetheless, Judge Oldner leaked the Indictments and 5 See footnote 3, infra.

14



underlying details to his wife, Cissy Oldner.

On July 28, 2015, at approximately 4:18 p.m., Susan Fletcher, the Collin

County Commissioner for Precinct 1, received a cell call from Ms. Oldner who

informed Ms. Fletcher that “the Grand Jury indicted Paxton that day and the case

was assigned to her husband’s (Judge Oldner’s) Court.” See Fletcher Affidavit,

(Exh. “I,” ¶ 9).

At approximately 5:30 p.m., Ms. Oldner again called Ms. Fletcher and told

her “... that I was not supposed to tell anyone about Mr. Paxton’s Indictment and

that it could not be discussed until the Indictment was unsealed on August 14.”

(See Fletcher Affidavit, Exh. “I,” ¶ 12).

The only conceivable way Ms. Oldner could have learned about Paxton’s

indictments was through her husband, Judge Oldner; who presided over the Grand

Jury and somehow arranged to have Paxton’s case assigned to his trial court. In

fact, Ms. Fletcher was surprised that the case was already assigned to Judge

Oldner. Ms. Fletcher “... asked if Cissy was certain that Mr. Paxton’s case was in

her husband’s court. Cissy confirmed that the matter was definitely in Judge

Oldner’s court.” (See Fletcher Affidavit, Exh. “I,” ¶ 9).

There is further indication of a possible grand jury breach. On July 2nd

, there

was a jury list circulated entitled “Sealed - Grand Jurors for 416th July Term 2015”

15



(Exh. “J”)6. Curiously, at the end of that same day, Cissy Oldner began texting Ms.

Fletcher about the Paxton matter:

Date Time Oldner Fletcher

7/2 5:53p

Well I actually heard that he

is not running again because

he is somehow involved in

Paxton's mess-- speaking of-

-your friend Paxton has not

had a good week. . .

Not listed

Yikes. I have no idea, but I

owe Turner a call. . .When I

asked someone [remaining text

cut off]

7/2 7:18p

This is exactly what we told

you was going to happen to

Paxton

7/2 7:18p

It's worse though then we

ever thought. Over 100k.

Ouch

Not Listed

You were right, bad mojo

indeed. I'm personally leary of

[remaining text cut off]

7/2 7:23p That sounds smart

7/2 7:25p

And don't advise people to

invest, take a 30%

commission you forget to tell

them about, and then watch

them lose their life savings

7/2 7:25p Sorry can't resist

7/2 7:26p

[beginning text cut off] my

agenda. No worries there. And

you know I've never stopped

you from venting. . .

7/2 7:27p This is really more gloating

than venting

6 See footnote 3.

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7/2 7:27p Which is not nice

7/2 7:29p I understand.

7/2 7:37p

Who knows. Maybe the

grand jury will no bill. But

they are presenting 2

different cases to 2 grand

juries and these are just the

charges that are about to run

the statute of limitations,

apparently there are more to

come.

During their exchange, Cissy Oldner communicated that Ms. Fletcher is not

to “. . . .tell anyone about Mr. Paxton’s indictment and that it could not be

discussed until the indictment was unsealed on August 14.” (Exh. “I,” ¶ 12). This

was and is information received from a Grand Jury secrecy breach. In an email

from Attorney Pro Tem Kent Schaffer to Paxton’s previous counsel, Joe Kendall

on July 29, 2015, Mr. Schaffer confirmed August 14 to be the day Paxton would

turn himself in. (Exh. “K”). Mr. Schaffer communicated:

. . . .Things have moved along faster than we anticipated.. . . .Although

we said that we could issue a summons for the 14th of August, the

judge issued the warrants for Mr. Paxton’s arrest. . . . .Accordingly

Mr. Paxton needs to surrender to Ranger Henderson at the Collin

County Jail no later than 10:00 on Monday, August 3, 2015. . . .

(Exh. “K”)(emphasis added).

Judge Oldner violated grand jury secrecy. Disclosure of secret grand jury

information and sealed indictments to his wife is a clear violation of Texas law.

It is well settled that no person may disclose the existence of an indictment

17



as it is to be kept secret until the defendant is in custody or has been released on

bond pending trial. The Texas Code of Criminal Procedure Article 20.22(b)

provides that “if the defendant is not in custody or under bond at the time of the

presentment of indictment, the indictment may not be made public and the entry in

the records of the court relating to the indictment must be delayed until the capias

is served and the defendant is placed in custody or under bond.” Hence, the

Indictments were to remain sealed until Paxton’s surrender to the authorities.

Grand jury proceedings are secret. The duty to maintain grand jury secrecy

applies not only to the grand jury members who take an oath of secrecy, but the

judge also has a statutory duty to keep the grand jury proceedings secret. See TEX.

CRIM. PRO. CODE ANN. ART. 19.34. See also Stern v. State Ex. Rel. Ansel, 869

S.W.2d 614, 623 (Tex. App. – Houston [14th Dist.] 1994). The Texas Code of

Criminal Procedure places great emphasis on the importance of maintaining grand

jury secrecy. In the instant case, these solemn duties were either failed or were

neglected.

VII. SUMMONS WAS IMPROPERLY REJECTED BY JUDGE OLDNER

WHO ISSUED AN ARREST WARRANT FOR PAXTON

On July 29, 2015 at 2:55 p.m., Attorney Pro Tem Schaffer notified Paxton’s

previous counsel, Joe Kendall, by email that:

18



. . . .Things have moved along faster than we anticipated and

instead of indicting your client on 8/11, as we had planned, we

indicted him yesterday. He is now indicted on two counts of

Securities Fraud and the third degree count of selling securities

without being registered by the state. We informed Judge Oldner that

we did not oppose a PR bond however he has set a 15,000.00 bond on

each of the first degree cases and a 5,000 bond on the third degree

case.

Email of K. Schaffer, July 29, 2015. (Exh. “K”). The Attorneys Pro Tem,

recognizing that Paxton was not a flight risk, informed Judge Oldner that they did

not oppose a Personal Bond (“PR”) which would have allowed Paxton to appear

before the Court upon notice after completing the requisites of a bail bond as set

forth in TEX. CODE CRIM. PRO. ART. 17.03, 17.04 and 17.08.

The Attorney Pro Tem informed Judge Oldner that they would issue a

summons for Paxton’s first court appearance for August 14,, 2015. (Exh. “K”).

Instead Judge Oldner “. . . .issued the warrants for Mr. Paxton’s arrest.” (Exh.

“K”). The warrants were not only unnecessary and heavy-handed but also in

violation of the Texas Code of Criminal Procedure.

According to District Clerk employees, after the Indictments issued on July

28, a summons for Paxton was about to issue. (Exh. “H”).7 Curiously, the next

day, on July 29 at 2:30 p.m., Judge Oldner asked that a capias (arrest warrant) issue

for Paxton’s arrest and given to Judge Oldner approximately 30 minutes later, at

7 See footnote 3, infra.

19



3:00 p.m. (Exh. “K,” “H”). Judge Oldner later recused himself from Paxton’s case

that very day and immediately after he learned that his wife had illegally leaked the

existence of the Indictments. (Exh. “L”). It is reasonable to deduce that this was a

vindictive action meant to publically embarrass and humiliate Paxton.

The law states that, “upon the request of the attorney representing the State,

a summons shall be issued by the District Clerk.” TEX. CODE CRIM. PRO. ART.

23.03(a). Judge Oldner had no discretion to deny the Attorney Pro Tem’s request

for a summons as the Code of Criminal Procedure states that a summons “shall”

issue.

VIII. CONCLUSION

Judge Oldner’s engaged in purposeful and cumulative efforts to subvert the

Grand Jury process, all to Paxton’s detriment and in violation of his due process

rights under the Fourteenth Amendment to the United States Constitution and

Article 1, Sections 13, 14 and 19 of the Texas Constitution (due course of law). It

appears that Judge Oldner improperly interjected himself into the Grand Jury and

may have systematically leaked sealed Grand Jury information to an unauthorized

person. There is no justifiable basis for Judge Oldner to have engaged in such

conduct and granting this Motion to Quash the Indictments is the only appropriate

remedy for this conduct.

20



Respectfully submitted,

Dan Cogdell HILDER & ASSOCIATES, P.C.

Co-Lead Counsel

Cogdell Law Firm, L.L.C.

402 Main Street

Fourth Floor /s/ Philip H. Hilder

Houston, Texas 77002 Philip H. Hilder

Telephone: (713) 426-2244 State Bar No. 09620050

Facsimile: (713) 426-2255 Co-Lead Counsel

Stephanie K. McGuire – of Counsel

State Bar No. 11100520

819 Lovett Blvd.

Telephone (713) 655-9111

Facsimile (713) 655-9112

Terri Moore [email protected]

300 Burnett St., Ste. 160

Fort Worth, TX 76102-2755

Telephone: (817) 877-4700 Bill Mateja

[email protected] Fish & Richardson, P.C.

1717 Main Street, Suite 5000

Dallas, Texas 75201

Heather J. Barbieri 214-292-4008

Barbieri Law Firm, P.C. [email protected]

1400 Gables Court

Plano, Texas 75075

Telephone: 972.424.1902

Facsimile: 972.208.2100

[email protected]

ATTORNEYS FOR DEFENDANT,

WARREN KENNETH PAXTON, JR.

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mailto:[email protected]






CERTIFICATE OF SERVICE

I hereby certify that on the 2nd day of November 2015, a true and correct

copy of the above and foregoing Motion was served on all counsel of record via

ECF, certified mail, return receipt requested, email, electronically, or hand

delivery.

/s/ Philip H. Hilder

Philip H. Hilder

CERTIFICATE OF CONFERENCE

This Motion to Quash the Indictments is of a nature that a conference to

resolve difference would not be productive. Therefore, this Court should treat this

motion as opposed.

/s/ Philip H. Hilder

Philip H. Hilder

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