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IN THE SUPREME COURT OF TEXAS

IN RE DAVID DOW,

v.

Relator-Petitioner,

THE TEXAS COURT OF CRIMINAL APPEALS,

Respondent.

DAVID DOWS PETITION FOR DECLARATORY JUDGMENT OR, IN THE ALTERNATIVE, WRIT OF MANDAMUS

Nicole DeBorde TBN: 00787344 712 Main St., Ste 2400 Houston, Texas 77002 Office: 713-526-6300 Fax: 713-228-0034 Email: Nicole@debordelawfirm.com

Casie L. Gotro TBN: 24048505 440 Louisiana, Suite 800 Houston, Texas 77002 Office: 832-368-9281 Fax: 832-201-8273 Email: casie.gotro@gmail.com

Attorneys for Relator/Petitioner David Dow

IDENTITY OF PARTIES AND COUNSEL

Relator/Petitioner certifies the following is a complete list of the parties and

their attorneys in accordance with Texas Rules of Appellate Procedure 53.2(a).

Respondent:

The Texas Court of Criminal Appeals

Relator/Petitioner:

David R. Dow TBN: 06064900

University of Houston Law Center

100 Law Center

Houston, Texas 77204-6060

TEL: (713) 743-2171 FAX: (713) 743-2131

Counsel for Relator/Petitioner:

Nicole DeBorde TBN: 00787344

712 Main St., Ste 2400

Houston, Texas 77002 Office: 713-526-6300 Fax: 713-228-0034 Email: Nicole@debordelawfirm.com

Casie L. Gotro TBN: 24048505

440 Louisiana, Suite 800

Houston, Texas 77002 Office: 832-368-9281 Fax: 832-201-8273 Email: casie.gotro@gmail.com

i

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

ii

TABLE OF CONTENTS

 

iv

INDEX OF AUTHORITIES

vi

STATEMENT

OF

THE CASE

1

STATEMENT

OF

JURISDICTION

2

ISSUES PRESENTED

 

3

STATEMENT OF FACTS

4

ARGUMENT…………

9

I. In suspending Dow, the CCA purported to exercise authority that is reserved to this

9

A. Contempt of court

 

10

B. Power to sanction

10

II. The ability to suspend an attorney absent fraudulent or dishonorable conduct or malpractice is within the exclusive jurisdiction of this Court

………

13

III. Mandamus is appropriate

 

16

IV. Declaratory judgment is

19

PRAYER FOR RELIEF

21

CERTIFICATION…….

22

CERTIFICATE

OF

COMPLIANCE

22

CERTIFICATE

OF

SERVICE

22

ii

APPENDIX…………

iii

A-001

INDEX OF AUTHORITIES

Cases

Bonham State Bank v. Beadle,

907

S.W.2d 465 (Tex. 1995)

20

Brager v. State, No. 0365-03, 2004 WL 3093237 (Tex. Crim. App. Oct. 13,

 

2004)

11

Chenault v. Phillips,

914

S.W.2d 140 (Tex. 1996)

3

Christeson v. Roper,

 

135

S. Ct. 891 (2015)

7

Eichelberger v. Eichelberger,

 

582

S.W.2d 395 (Tex. 1979)

2,

9

Etan Indus. v. Lehmann,

359

S.W.3d 620 (Tex.

2011)

21

Harbison v. Bell,

 

556

U.S. 180 (2009)

18

In re Bennett,

 

960

S.W.2d 35 (Tex. 1997)

 

10-11

In re Caballero,

 

441

S.W.3d 562 (Tex. App.—El Paso, no pet.)

 

9

In re Paredes,

 

587

F. App’x 805 (5th Cir. 2014)

 

7

In re State Bar,

 

113

S.W.3d 730 (Tex. 2003)

9,

15, 18

Kutch v. Del Mar College,

 

831

S.W.2d 506 (Tex. App.—Corpus Christi 1992, no writ)

 

11

iv

Mills v. Ghilain, 68 S.W.3d 141 (Tex. App.—Corpus Christi 2001, no pet.)

 

9

State Bar of Texas v. Gomez.

 
 

891

S.W.2d 243 (Tex. 1994)

2,

9, 14

Tabler v. Stephens, No. 12-70013, 2015 WL 327646 (5th Cir. Jan. 27, 2015)

 

7

TransAmerican Natural Gas Corp. v. Powell,

 
 

811

S.W.2d 913 (Tex.

1991)

12

Walker v. Packer,

 
 

827

S.W.2d 833 (Tex.

1992)

16

Rules and Statutes

 

5TH CIR. R. 8.10

 

8

18

U.S.C. § 3599

 

18

TEX. CONST. art. II

2,

9

TEX. CONST. art. V

3,

14

TEX. CRIM. APP. MISC. R. 11-003 (Exhibit B)

 

8

TEX. GOVT CODE § 21.002

 

10

TEX. GOVT CODE § 22.108

16

TEX. GOVT CODE § 81.011

 

2,

9, 14

TEX. GOVT CODE § 81.072

9,

14

TEX. GOVT CODE § 82.061

10

TEX. CIV. PRAC. & REM. CODE § 37.003

3

v

TEX. CODE CRIM. PROC. art. 11.071

17

TEX. R. DISCIPLINARY

vi

14-15

STATEMENT OF THE CASE

Nature of the case: On January 14, 2015, in a per curiam 1 order, the Texas Court of Criminal Appeals (CCA) issued an order sanctioning David Dow and suspending him from practicing before the CCA, without leave of court, for one year. See Exhibit A. Dow seeks review of this order because the CCA lacks the lawful authority to suspend Dow. Only the Texas Supreme Court, under appropriate circumstances, may suspend a lawyer licensed by the State Bar of Texas. Even if the CCA had such authority (which it does not,) its order further deprived Dow his right to due course of law guarantee of the Texas Constitution and his right to due process of law guarantee by United States Constitution. 3

CCA case

information :

IN RE DAVID DOW, CAUSE NO. WR-61,939-01

Motion for rehearing: Dow filed a Motion for Rehearing on January 29, 2015. In a five to four decision, the CCA denied the motion for rehearing on February 25, 2015. The dissenting statements of Judges Alcala, Newell, and Richardson (joined by Johnson) are attached as Exhibits C, D, and E, respectively.

Relief requested: Declaratory relief stating that the order of suspension issued by the CCA is unlawful. In the alternative, a writ of mandamus, directing the CCA to withdraw the invalid order.

1 Judge Alcala dissented and would not have suspended Dow.

3 Dow further contends that the CCA erroneously concluded that he violated the court’s Miscellaneous Rule 11-003 and failed to show good cause.

vii

STATEMENT OF JURISDICTION

The Texas Supreme Court has jurisdiction because:

(1) Pursuant to Article V, section 3 of the Texas Constitution, this Court has the power to issue writs of mandamus “necessary to enforce its jurisdiction” even permitting the issuance of a writ of mandamus to the CCA. TEX. CONST. Art. V, § 3(a). 4 Relator has no adequate remedy by appeal and thus mandamus is the appropriate remedy. In re Coy Reece,

341 S.W.3d 360, 54 (2011). This is the only Court which can provide the

relief to which Relator is constitutionally entitled.

(2)

This Court has exclusive authority to regulate the practice of law. TEX. CONST. art. II, § 1; TEX. GOVT CODE § 81.011(c); see Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex. 1979).

(3)

The State Bar Act further provides this Court has “administrative control over the State Bar and provides a statutory mechanism for promulgating regulations governing the practice of law.” State Bar of Texas v. Gomez,

891 S.W.2d 243, 245 (Tex. 1994) (citing TEX. GOVT CODE § 81.011(c)).

(4) Chapter 37 of the Civil Practice and Remedies Code grants the Court the authority to issue a declaratory judgment that has the force and effect of a final judgment or decree in this case because the Court has jurisdiction over the regulation of the practice of law. 5 TEX. CIV. PRAC. & REM. CODE § 37.003(a).

4 Section 3(a) adds that “[t]he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor.” Tex. Const. Art. V, § 3(a). The Legislature has conferred additional jurisdiction to this Court pursuant to section 3(a). Moreover, while the additional jurisdiction conferred by statute expressly excludes the CCA as subject to a mandamus issued by this Court, the statute does not – and cannot – deprive this Court of its constitutionally-conferred jurisdiction, and that jurisdiction permits this Court to issue a writ of mandamus to the CCA.

5 The Court has held that district courts have jurisdiction in some cases to issue declaratory judgments related to this Court’s power to regulate the bar when those judgments are concerning a judicial (and not administrative) matter. Chenault v. Phillips, 914 S.W.2d 140, 142 (Tex. 1996). However, because the matter presented in this petition concerns whether the Texas Court of Criminal Appeals had the authority to sanction Dow in the manner it did, the matter is

viii

ISSUES PRESENTED

I. Whether the Texas Supreme Court has the jurisdiction to either enter a declaratory judgment or issue a writ of mandamus declaring that the CCA impermissibly exceeded its statutory and constitutional authority when it suspended Dow from the practice of law?

II. Whether the CCA exceeded its authority and violated Dow’s constitutional rights, when it issued an order suspending him from the practice of law, absent fraudulent or dishonorable conduct or malpractice, because the ability to exact such a sanction is within exclusive jurisdiction of the Texas Supreme Court and the CCA further failed to give Dow his due course and process of law?

properly brought only in this Court. All lower courts are inferior to the CCA and incapable of declaring the CCA lacked the authority to sanction Dow in the manner that it did because procedurally, an “appeal” is a review by a superior court of an inferior court's decision. White v. State, 543 S.W.2d 366, 368 (Tex.Crim.App.1976) Republic v. Smith, Dallam 407, 409

(Tex.1841)

ix

STATEMENT OF FACTS AND PROCEDURAL HISTORY

I. Dow’s Work on Parede’s Death Penalty Case Leading Up to the Improper Suspension.

David Dow regularly represents on appeal individuals who have been

sentenced to death.

Many of Dow’s death penalty cases are taken pro bono, and

those that are not pro bono are appointed and only partially billed. Dow performs

this work through the UH Law Center Death Penalty Clinic and the Texas

Innocence Network.

Dow (along with co-counsel Jeffrey Newberry, who is not a party to these

proceedings) represented Miguel Paredes, a Texas death row inmate who was

executed on October 28, 2014. See Show Cause Order, Exhibit F. After agreeing to

represent Paredes in August 2014, Dow and his team undertook an extensive

investigation in an extremely limited period of time. Statement of David R. Dow

pursuant to Miscellaneous Rule 11-003, and Timeline Exhibits G and H

Dow’s

work included locating and reviewing medical records, locating and interviewing

witnesses, evaluating extensive documentation from all phases of Mr. Paredes’

case, and researching previously unaddressed legal issues.

Statement of David R.

Dow pursuant to Miscellaneous Rule 11-003, and Timeline Exhibits G and H.

Paredes first contacted Dow in May 2014, after his execution had been

scheduled. See Motion For Leave to File with Timeline, Exhibit I at 5.

1

Paredes

wrote and explained he had been under psychiatric care and was in fact suicidal at

the time he waived his Wiggins claim, and requested assistance of counsel. Id. In

August, Dow contacted Parades and Paredes’s federally-appointed habeas counsel,

who accepted Dow’s offer to substitute in as lead counsel for any additional

litigation and promptly handed over the case file.

Id. Dow’s delay in reaching to

Parades was due to his heavy caseload.

Also in August, Dow was granted an

extension on a state habeas application for another death row client, which had

been his primary focus throughout the summer because of that case’s deadlines.

Order Granting Extension, Exhibit J.

In addition, Dow was involved in preparing

federal pleadings for two other death row clients.

The pro bono investigation by Dow and his team revealed a variety of new

issues to be considered and developed.

Suggestion to Reconsider, Exhibit K.

To

begin with, Dow discovered previously undisclosed medical records.

Id. at 6-7.

These records revealed that Paredes had been under psychiatric care and was

receiving psychiatric medication both at the time of his trial and during state

habeas corpus proceedings.

Id.

It was also learned that Paredes suffered from

mental illness for most if not all of his life.

Id. at 9-10.

These facts were not

revealed in any transcripts of the proceedings and were unknown to the courts. See

id. at 8-9.

Indeed, the jury that sentenced Paredes to death was unaware of either

his history of mental illness, or the fact he was receiving mental health treatment at

2

the time of his trial.

See id. at 9-10.

In fact, Paredes’s trial lawyers called no

witnesses at all at the punishment phase of his trial (XX R.R. at 124-26, State v.

Paredes, No. 2000-CR-6067B (Bexar County 399th Dist. Ct. Oct. 24, 2001).

When a capital murder defendant’s trial counsel presents no evidence aimed

to persuade the jury to spare the life of the client, the death row inmate has a

potential claim under Wiggins v. Smith, 539 U.S. 510 (2003).

In Paredes’s case,

however, at a brief hearing held in the state court following his conviction and

sentence of death, Paredes purported to waive his Wiggins claim. Exhibit K at 8-9.

At the time, Paredes remained under psychiatric care, although the court which

permitted his waiver was unaware of this fact. See id.

Having learned that Paredes was incompetent when he waived his Wiggins

claim, Dow investigated further. Id. at 9-10. Previous counsel did not investigate

for evidence of a Wiggins claim. See id. Throughout September and the first half

of October, counsel obtained and reviewed medical, prison, and educational

records, and located and interviewed approximately a half dozen witnesses who

possessed salient information about Paredes’s background and could have been

called as witnesses at the punishment phase of Paredes's trial. Id.; Exhibit I at 5.

All of this information had to be located, considered, and applied in a legal context

because again, his trial lawyers did not call any witnesses during the punishment

phase of the trial.

3

The newly obtained medical records revealed the specific medications that

Paredes was taking at the time of trial and during the state habeas hearing where he

purported to waive his Wiggins claim.

the

jury,

Paredes

was

receiving

During trial,

unbeknownst to the court or

strong

antidepressant

and

antipsychotic

medications, often in conjunction with one another.

Exhibit K at 7.

These

medications

included

Doxepin,

Torazine,

Mellaril,

and

Xanax.

Id.

And,

throughout

the

state

habeas

proceedings,

Paredes

was

being

treated

with

antidepressant

medications,

including

Bupropion

and

Wellbutrin.

Id.

at

6.

Another fact of which the court was unaware.

Finally, Dow and Newberry were

able to obtain additional affidavits suggesting that Paredes likely suffered from

mental illness from the time he was very young. Id. at 10.

Counsel also learned significant facts about Paredes’s background, that had

also not been previously discovered and were unknown to the sentencing jury as

well as the state and federal courts which reviewed his case.

For example, when

Paredes was seven years old, his family was chased out of Chicago and forced to

move to Mexico because his older brothers were involved in a war with a Chicago

gang. Id. After living in Mexico for several years, Paredes and his family moved

to San Antonio where gang violence was as bad as it had been in Chicago.

Id.

Paredes was run over by a car driven by gang members when he was only eleven

years old.

Id.

These facts are examples of the newly discovered

4

mitigating

evidence that should have been presented to a jury considering the death penalty.

See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003).

Having determined that the underlying Wiggins claim was meritorious, and

that the purported waiver of that claim did not comport with the dictates of due

process, Dow filed a motion to reopen federal habeas proceedings pursuant to

Federal Rule of Civil Procedure 60 and litigated the matter through the Fifth

Circuit.

See Paredes v. Stephens, No. 5:05-cv-00870-FB, ECF No. 25; In re

Paredes, 587 F. App’x 805 (5th Cir. 2014). 11

In addition to the federal pleadings, Dow filed two pleadings in the state

court. One asked the CCA, on its own motion, to reopen the proceedings where it

had permitted Paredes to waive his Wiggins claim. Exhibit K.

The other, filed at

the request of Paredes’s previous counsel, raised a claim of actual innocence,

which rested on two affidavits obtained by Paredes’s previous counsel. Subsequent

Application, Exhibit L.

All of the above pro bono, highly specialized legal work

occurred in the less than three remaining months of Paredes’s life. Exhibit I at 5-6.

11 Although the Fifth Circuit subsequently denied Paredes relief, it appears likely that had Paredes’s Rule 60 motion been considered by the Fifth Circuit three months later, the court would have held differently, in view of the Supreme Court’s subsequent decision in Christeson v. Roper, 135 S. Ct. 891 (2015). In Tabler v. Stephens, No. 12-70013, 2015 WL 327646, at *1 (5th Cir. Jan. 27, 2015), in a case procedurally identical to Paredes’s, the Fifth Circuit withdrew its previous order which had denied Tabler Rule 60 relief and held that, under Christeson, he was entitled to develop the merits of his underlying claim. The claim Paredes raised was indistinguishable from the claim Christeson raised in the Supreme Court.

5

There are very few attorneys willing to take

on

the task of this very time

consuming and difficult work.

Had Dow and his team not agreed to assist Mr.

Paredes, it is unlikely that Mr. Paredes would have had anyone present

the

complex legal and factual issues raised by Dow and his team, and the grounds that

Dow raised are a settled basis for a new trial if proved in post-conviction

proceedings.

II. The Alleged Rule Violation.

Paredes was scheduled for execution on October 28, 2014.

Counsel filed in the

CCA documents on Mr. Paredes's behalf seven days in advance on October 21,

2014. Motions for Stay of Execution, Exhibits M and N. This was in compliance

with

the

CCA’s

Miscellaneous

Rule

11-003,

which

requires

that

pleadings

requesting the court stay an execution be “filed seven days before an execution.”

(emphasis added). Using counting methods, such as those employed by the

analogous Fifth Circuit rule, and by the Texas Rules of Appellate Procedure,

Dow’s filing was timely. Tex. R. App. P. 4.1(a); Fed. R. Civ. P. 6.(a)(1); 5th Cir.

R. 8.10, which states in part that in death penalty issues, filers “…must exercise

reasonable diligence in moving for a certificate of appealability, for permission to

file a second or successive habeas petition, or in filing a notice of appeal from an

adverse judgment of the district court in any other type of proceeding, and a stay of

6

execution with the clerk of this court at least 7days before the scheduled execution.

Dows Appearance Before the CCA and the CCA’s Subsequent Order of Suspension.

Despite the fact that the language in Rule 11-003 is analogous to the Fifth

Circuit rule (and Texas Rule of Appellate Procedure 4.1(a)) and the CCA express

statement that “rule is modeled upon an analogous rule adopted by the Fifth Circuit

Court of Appeal,” see Misc. R. 11-003, Exhibit J at 2, the CCA interpreted Rule

11-003 differently.

On November 19, 2014, the CCA issued a Notice to Appear

and Show Cause Order directing Dow and Newberry to appear in court on January

14,

2015

to

explain

why they should

not

be

sanctioned

for

“violation

of

Miscellaneous Rule 11-003”. See Exhibit F. In concluding that Dow was untimely,

the CCA relied upon an example contained within the rules that purportedly

indicated that such documents actually needed to be filed eight days before an

execution. Misc Rule 11-003.

Even though Dow disagreed with the CCA’s construction of the rule, he

complied with the request to show cause and filed a statement explaining why

counsel was not able to file the pleadings within eight days of the execution.

Exhibits G and H,

Then on January 14, 2015, Dow appeared before the CCA.

See Show Cause Transcript, Exhibit O.

A court reporter did not transcribe the

7

proceedings, but, there was an audio recording.

It is attached as Exhibit P.

Moreover, undersigned counsel has also attached a certified transcription of the

audio from this proceeding for the Court’s convenience as Exhibit O. During the

appearance, Dow is asked questions by various judges and he attempts to answer

the questions. Most of the questions appear to have come from Judge Keller.

Exhibit P

And, owing to the inquiry into Judge Keller's actions following the

execution of Michael Richard in 2007 that was conducted by the State Commission

of Judicial Conduct, significant tension developed between Dow and Judge Keller,

leading Dow to request that Judge Keller recuse herself in several cases where he

was counsel as a result of her perceived bias toward him. Exhibit P and V

In this

proceeding, the CCA acted as prosecutor, judge and witness. See Exhibit P,

Hearing Audio

Indeed, no other witnesses were called nor sworn and there is no

testimony in the usual sense given.

Neither was there an attorney present

representing either the CCA or the State Bar of Texas.

The CCA issued a written order

on the same

day

of the open court

proceedings. It held that Dow had violated Rule 11-003 and that he had not shown

good cause for doing so. Exhibit A As punishment, the CCA suspended Dow from

appearing before it, absent leave, for a period of one year. Exhibit A. On January

29, and for the first time represented by counsel, Dow filed a motion for rehearing.

Exhibit Q, Motion for Rehearing. The CCA, in a split decision, denied the motion

8

for rehearing on February 25, 2015. See Exhibits C, D, and E.

ARGUMENT

I. The Texas Supreme Court Has Jurisdiction to Issue a Declaratory Judgment Regarding Dow’s Ability to Practice Law, or in the Alternative, Issue a Writ of Mandamus Against the CCA for Exceeding Its Authority.

A. The Court has the Authority to Issue a Declaratory Judgment.

The Texas Supreme Court has jurisdiction over disciplinary actions. And,

because a declaration would resolve the underlying controversy, a declaratory

judgment is appropriate.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467

(Tex. 1995); see Etan Indus. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011).

Declaratory relief is necessary in this case to avoid immediate injury to

Dow's clients. See Exhibit R, Dow's current practice consists primarily of the pro

bono representation of death-sentenced inmates in federal habeas proceedings.

Exhibit R.

The CCA's unlawful suspension order has significant potential impact

on Dow's clients because each of Texas’ four federal district courts require that

Dow report the suspension. 14

In addition, a disciplinary violation permits the

14 See S.D. TEX. DISCIPLINE R. 3(A) (“A lawyer disciplined by another court in the United States shall promptly notify this court in writing and furnish to the clerk of the court a certified copy of the order of discipline. A lawyer suspended or disbarred by another court in the United States shall immediately cease to practice before this court.”); N.D. TEX. R. 83.8(d) (“Any member of the bar of this court who has … been disciplined, publicly or privately, by any court … shall promptly report such fact in writing to the clerk, supplying full details and copies of all pertinent documents reflecting, or explaining, such action.”); E.D. TEX. R. AT-2(b)(1) (“A member of the bar of this court shall automatically lose his or her membership if he or she loses,

9

federal courts to impose reciprocal discipline.

For example, the clerk for the

Southern District of Texas took action to terminate Dow’s filing privileges in that

district. 17 Exhibit S

In the Northern District, a hearing for one of his clients has

been postponed as the district judge in that case awaits a decision from the

district’s chief judge regarding whether reciprocal discipline will be imposed.

Exhibit T

Accordingly, without relief, Dow and his clients will suffer irreparable

harm if Dow is not accorded a right of appeal to the unlawful sanction.

The Court Has the Authority to Issue a Writ of Mandamus.

The Court has held that a relator should not seek mandamus unless the error

is of such importance to the jurisprudence of the state that it requires correction by

the Texas Supreme Court.

Walker v. Packer, 827 S.W.2d 833, 839 n.7 (Tex.

1992).

This case presents an error that rises to that degree of importance.

Additionally, the Texas Constitution gives this Court mandamus power. Texas

either temporarily or permanently, the right to practice law before any state or federal court for any reason other than nonpayment of dues, failure to meet continuing legal education requirements, or voluntary resignation unrelated to a disciplinary proceeding or problem.”); W.D. TEX. R. AT-7(e)(2) (“A member of the bar of this court must promptly report in writing to the clerk, with full details and copies of pertinent documents, if … the attorney loses or relinquishes, temporarily or permanently, the right to practice in any court of record….).

17 This appears to be an action automatically taken by the clerk’s office (and not an indication that any disciplinary panel has decided to impose reciprocal discipline). See S.D. TEX. DISCIPLINE R. 3(A). Counsel anticipates a similar response from the Eastern District may be forthcoming, See E.D. TEX. R. AT-2(b)(3) (“The clerk will thereafter enter a reciprocal order effective in the courts of this district.”)

10

Const. Art. 5, § 3

To the extent that Texas Government Code Section 22.002,

which limits the authority of this Court to mandamus the CCA is in conflict with

the Texas Constitution, the

separation of powers requirement of the Constitution

has been violated because the it would prevent the this Court from exercising its

constitutionally assigned powers. Ex parte Lo, 424 S.W.3d 10, 28 (Tex.Crim.App.

2014)

The Court of Criminal Appeals has the authority to promulgate procedural

rules. Tex. Gov’t Code § 22.108. However, “its rules may not abridge, enlarge, or

modify the substantive rights of a litigant.” Id. § 22.108(a).

Even with the

additional pleading, Dow filed the documents he filed on behalf of Paredes in the

CCA by 6:30 p.m. on October 21, 2014 – seven days before Mr. Paredes was

executed, and even by the eighth day standard, only half an hour into the eighth

day.

Even considering Dow’s reasons filed with the CCA for the “late” filing,

the CCA still found that good cause did not exist to file the pleadings at most half

an hour late.

See Exhibit C.

The CCA’s extraordinary construction of the rule,

and decision that the penalty for the filing would be a one year suspension will

undoubtedly cause other attorneys

in Dow’s

position to decide

not to

file

documents for inmates facing execution.

See Exhibit C at 10-11 (“This Court’s

contempt order also carries with it the possibility of a chilling effect on attorneys

11

who might otherwise be willing to represent capital-murder defendants who are

facing execution and are in need of competent counsel.”). As a result, people may

die, some of them innocent, with valid claims their court appointed and publicly

paid lawyers failed to develop out of fear of sanction by the CCA. This result

would be at odds with the legislative objective, evidenced in Article 11.071 section

5 of the Code of Criminal Procedure, that such inmates be allowed to file

subsequent applications.

Had the Legislature intended there to be a time limit

pertaining to an inmate’s right to seek to file a subsequent application, for post-

conviction relief, it

could have enacted one.

See Tex. Code Crim. Proc. art.

11.071 § 4(a) (setting a filing deadline for an initial application).

Furthermore, this penalty imposed on Dow is already interfering with and

will likely interfere further, with his duties and to inmates’ rights to pursue relief in

the federal courts. Dow currently represents at least twelve death-sentenced Texas

defendants in their federal habeas proceedings. Exhibit R (Dow’s Affidavit). Dow

was appointed to represent these individuals pursuant to 18 U.S.C. § 3599.

Pursuant to that federal statute, Dow is obligated to represent those individuals

“throughout every subsequent stage of available judicial proceedings, including …

all available post-conviction process, together with applications for says of

execution and other appropriate motions and procedures….” 18 U.S.C. § 3599 (e);

see also Harbison v. Bell, 556 U.S. 180 (2009). Fulfilling these obligations often

12

requires federal habeas counsel to return to the CCA to exhaust state remedies.

Dow’s suspension therefore interferes with the duty he owes to his clients whose

cases are pending in the federal courts.

In addition, there exists a possibility that each of the federal district courts in

this state may decided to impose reciprocal discipline upon Dow and suspend him

from practicing for one year.

This action would not be based on any finding that

Dow conducted himself in any inappropriate manner in the federal courts. Rather,

this discipline would be imposed reciprocally, out of respect for the CCA’s

sanction – a sanction that it lacked the authority to impose because a federal court

expects a member of its bar to be in good standing in state court. See Standing

Order from Northern District, Exhibit U.

This Court “has consistently granted mandamus relief when a lower court

interferes with the disciplinary process.” In re State Bar, 113 S.W.3d at 733. The

court that has interfered with the disciplinary process in this case is the Court of

Criminal Appeals.

Due process requires that there must be a remedy. The

contempt punishment in Dow’s case, while not a lawful contempt punishment, is

both punitive or criminal and coercive or civil (requiring him to seek leave to file

before the court). In re Coy Reece, 341 S.W.3d 360 (Tex. 2010) The CCA

exceeded it’s contempt authority.

13

The CCA Erred In Suspending Dow from the Practice of Law.

There can

be

no

doubt that

the CCA’s order suspending Dow from

practicing law before the court is an attempt to regulate his practice of law.

Yet,

the Texas Supreme Texas Supreme Court has the exclusive authority to do so. The

CCA’s attempt to avoid usurping this authority by labeling it as punishment for

contempt or a sanction is nothing but a game of semantics. There is no basis in the

law or the fact that would support the severe sanction of suspension for the alleged

one day late filing of documents that literally could change the course of whether a

person lives or dies.

The power to sanction is allowed to the extent necessary to

deter, alleviate, and counteract bad faith abuse of judicial process, such as any

significant interference with traditional core functions of court. Kutch v. Del Mar

no way to construe the barely late, if it was late, filing as to interfere with the core

functions of the CCA in a significant way, so the CCA’s punishment is also not an

appropriate sanction. Accordingly, the CCA exceeded its authority and its order

suspending Dow from practicing before the CCA should be vacated.

A. The Texas Supreme Court Has the Exclusive Authority to Regulate the Practice of Law and Has Set Forth a Detailed Process for Disciplining Lawyers.

The Texas Supreme Court has exclusive authority to regulate the practice of

14

law. TEX. CONST. art. II, § 1; TEX. GOVT CODE § 81.011(c); see Eichelberger, 582

S.W.2d at 398-99. The Constitution states that:

The Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.

TEX. CONST. art. V, § 31; see also TEX. GOVT CODE §§ 81.072(a), 81.011(c). The

Tex. Rules Disciplinary Procedure preamble recognizes this authority:

“The

Supreme Court of Texas has the constitutional and statutory responsibility within

the State for the lawyer discipline and disability system, and has inherent power to

maintain appropriate standards of professional conduct and to dispose of individual

cases of lawyer discipline.” See also State Bar of Tex. v. Gomez, 891 S.W.2d 243,

245 (Tex. 1994). Any attorney admitted to practice law in Texas is subject to the

disciplinary jurisdiction of the Court and the Commission for Lawyer Discipline

for the State Bar of Texas. TEX. GOVT CODE § 81.071.

An attorney is entitled to due course of law and due process before being

disciplined

To insure that an attorney’s due course of law and due process rights are

met, the Texas Supreme Court has set has established minimum standards and

procedures for processing grievances against attorneys and imposing sanctions for

15

professional misconduct.

TEX. GOVT CODE § 81.072.

Disciplinary proceedings

are initiated by referral to the Chief Disciplinary Counsel of the State Bar of Texas.

TEX. GOVT Code § 81.072(c); see generally In re State Bar, 113 S.W.3d 730 (Tex.

2003); In re Caballero, 441 S.W.3d 562 (Tex. App.—El Paso 2014, no pet.); Mills

v. Ghilain, 68 S.W.3d 141 (Tex. App.—Corpus Christi, 2001, no pet.).

If the CCA believed that Dow’s ability to practice law should be curtailed, it

could

and

should

have

followed

these

procedures

and

initiated

grievance

proceedings, yet it did not. No prosecutor was appointed to handle the contempt

proceedings against Dow. The lack of an independent prosecutor left the CCA in

the position of prosecutor, witness and judge. In a case where a prosecutor also

represents an interested party, there is an intolerable danger that the public interest

will be compromised, and produces at least the appearance of impropriety. Young

v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987).

By disciplining Dow outside the scope of its power and without referring the

disciplinary matter to the appropriate court, the CCA has deprived Dow of his

constitutional rights under the due process clause of the Fourteenth Amendment.

The Due Process Clause of the United States Constitution is applicable in contempt

proceedings. Dunn v. United States, 442 U.S. 100 (1979);

Although

counsel

does

not

believe

his

conduct

warrants

suspension,

imposing that sanction is within the authority of the Disciplinary Counsel and the

16

State Bar because this Court, which has exclusive jurisdiction over matters

pertaining to attorney discipline, delegated that authority to BODA. Sanctioning

Dow by suspending him from practicing before the court was not within the

unilateral power of this Court of Criminal Appeals.

Thus, the CCA usurped the

Texas Supreme Court’s authority by suspending Dow from the practice of law.

B. Dow’s Conduct Did Not Rise to the Level that Permitted the CCA to Suspend Him for Any Alleged Contemptuous Conduct.

The CCA, like all other Texas courts, has broad authority to punish attorneys

for contempt. TEX. GOVT CODE § 21.002(a). And, the CCA did find Dow to be in

contempt. See Exhibit A. However, this authority is not unbridled, and in this case

the CCA’s decision to suspend Dow for contempt was improper.

As a threshold issue, due process applies to contempt proceedings. Id Dunn

Yet, the evidence conclusively shows that the CCA did not properly afford Dow

due process. Dow never had a hearing before an appropriate court, the judges

accusing him of misconduct acted as prosecutor and judge, and the contempt

punishment meted out was not a permitted contempt punishment.

There is no question that Dow was punished for contempt by a court that he

has offended.

Texas law states in these circumstances, a lawyer has a right to

request that the contempt proceedings be adjudicated by a judge other than the one

who claims to be offended. TEX. GOVT CODE §21.002(d)(2004).

17

In what

amounted to contempt proceedings, Dow had the right to an impartial prosecutor

and judge in a proper hearing before the proper court, and he was deprived of this

right.

In addition, the facts to do not support the CCA’s finding of contempt or

suspension as punishment for such contempt. The Texas Government Code states

clearly that “[a]n attorney may not be suspended or stricken from the rolls for

contempt unless the contempt involves fraudulent or dishonorable conduct or

malpractice.”

TEX. GOVT CODE § 82.061.

The CCA did not make any fact

findings about the nature of Dow’s conduct, much less conclude that it was

fraudulent or dishonorable or malpractice. See Exhibits P and A Nor is there any

evidence in the record to support such a finding.

There is no question that Dow is a respected and effective advocated against

the death penalty.

He has appeared numerous times before the CCA and as

mentioned, his criticism of its work has not always been kind.

Yet, the ability to

proffer and advocate differing opinions and for change is the essence of our

judicial system.

Lawyers are not only permitted to zealously and passionately

represent their clients, but this is what the Bar strives towards.

The fact that a

court may find certain methods distasteful is of no consequence.

Rather, only

when an advocate crosses the line and acts fraudulently, dishonestly, or commits

malpractice can he be punished for his actions. As detailed above, Dow’s conduct

18

did not reach such a threshold.

After receiving a letter from an inmate facing

execution and requesting assistance, Dow diligently investigated the case and

prepared filings on his behalf. Exhibits I, K and L Nothing indicates that Dow’s

actions were fraudulent or dishonorable. To the contrary, Dow’s pro bono services

provide a needed and honorable service.

In seeking to defend a client who was

about to be executed, he acted in accordance with the highest ethical, moral and

professional duties of the legal profession.

suspending Dow as punishment for contempt.

Accordingly, there was no basis for

C. The Power to Sanction Dow Did Not Give the CCA the Ability to Suspend Him From Practicing Law.

Courts

also

maintain

the

“inherent

power

to

discipline

an

attorney’s

behavior.” In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (citing Eichelberger, 582

S.W.2d at 398-99); Brager v. State, No. 0365-03, 2004 WL 3093237, at *2-3 (Tex.

Crim. App. Oct. 13, 2004) (not designated for publication).

This includes the

power to sanction attorneys for abuse of the judicial process, or for interfering with

the court's core functions.

See Bennett, 960 S.W.2d at 40; Brager, 2004 WL

3093237 at *2 (citing Kutch v. Del Mar College, 831 S.W.2d 506, 510 (Tex.

App.—Corpus Christi 1992, no writ)).

The CCA’s core functions include deciding issues of fact raised by the

pleadings, deciding decisions of law, entering a final judgment on the facts and the

19

law and executing a final judgment.

Armadillo Bail Bonds v. State, 802 S.W.2d

237, 239-40 (Tex. Crim. App. 1990). As noted by Justice Alcala, Dow’s actions in

filing pleadings on behalf of Paredes seven days before his scheduled execution

did not interfere with these core functions.

Counsel filed all the pleadings they filed on behalf of Paredes by 6:30 p.m.

on October 21 (167.5 hours before Paredes was scheduled to be executed)

(6.97917 x 24 hour days). The CCA handed down its rulings denying relief on all

of the pleadings filed by counsel on behalf of Paredes 39.5 hours after the final

pleading was filed. Counsel’s actions in filing on October 21 did not interfere with

the CCA’s ability to carry out its core functions. Justice Alcala noted that:

Here, Dow filed his pleadings seven days prior to the scheduled execution date, on October 21. Two days later, this Court ruled on the matters raised in the pleadings, and the defendant was executed on schedule on October 28. The fact that this Court ruled quickly suggests that the matters presented in Dow’s pleadings were not so overly complicated that the delay impacted the defendant’s rights or prevented this Court from giving full consideration to those matters.”)

See Exhibit C at 6.

Even if a claim could be made that Dow’s actions had interfered with the

CCA’s core functions, the CCA, in suspending Dow, acted without authority.

First,

counsel

have not

been

able

located

any cases

where

a

court

acting

unilaterally has suspended a member of the Texas Bar from practicing before it as

a sanction.

20

And second, suspension was more severe than necessary to satisfy its

legitimate purpose. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d

913, 917 (Tex. 1991); see also Brager, 2004 WL 3093237, at *3 (recognizing

sanctions only available to the extent that “no lesser sanction was available to

preserve judicial integrity and prevent … significant interference with core judicial

functions”).

Suspending a lawyer for a filing, which would be considered late by

less than a day under even the CCA’s interpretation of the deadlines, is beyond

excessive for the conduct, especially where the filing itself dealt with life and death

issues.

The CCA noted in its order announcing Dow’s suspension, that Dow was

before the Court in 2010 after failing to timely file pleadings on behalf of Danielle

Simpson. See Exhibit A at 3. At that time, the Court took no action against Dow.

Id.

This alleged failure over four years ago hardly makes the case for a repeat

pattern of abuse though. Since 2010, Dow has timely filed pleadings in the CCA

on behalf of at least five inmates facing execution. See Ex parte Garza, No. WR-

70,257-01 (Tex. Crim. App. Sept. 18, 2013); Ex parte Parr, No. WR-65,443-02

(May 3, 2013); Ex parte Cobb, No. WR-68,192-03 (Tex. Crim. App. Apr. 19,

2013); Ex parte Thurmond, Nos. WR-62,425-01, -02 (Tex. Crim. App. Feb. 29,

21

2012); Ex parte Adams, No. WR-65,598-02 (Tex. Crim. App. Feb. 18, 2011). 18

Because the suspension was more severe a sanction than necessary to satisfy

its purpose and is not an allowable even in a legitimate contempt action in these

circumstances the CCA did not have the authority to suspend Dow, even if it

determined that some sanction was warranted.

PRAYER

Relator/Petitioner David Dow request that the Court grant the petition for

declaratory judgment, or in the alternative the petition for writ of mandamus, and

hold that the Texas Court of Criminal Appeals exceeded its authority is in issuing

an order suspending David Dow from practice before the Texas Court of Criminal

Appeals for one year, except with leave of court, and further order the CCA to

vacate the offending order.

entitled.

Dow requests all other relief to which he may be

Respectfully submitted,

/s/ Nicole DeBorde

Nicole DeBorde TBN: 00787344 712 Main St., Ste 2400

18 On behalf of only one client since 2010 has the timing of Dow’s filings been such that a statement pursuant to the CCA’s Rule 11-003 was required, and as Dow explained in that case, the late filing was caused by the fact that the trial court’s order which was appealed to the CCA was not itself issued until less than a week before the execution. The CCA accepted his proceeding and ruled as if timely filed without complaint.

22

Houston, Texas 77002 Office: 713-526-6300 Fax: 713-228-0034 Email: Nicole@debordelawfirm.com

And

Casie L. Gotro TBN: 24048505 440 Louisiana, Suite 800 Houston, Texas 77002 Office: 832-368-9281 Fax: 832-201-8273 Email: casie.gotro@gmail.com

CERTIFICATION

Pursuant to Texas Rules of Appellate Procedure Rule 52.3(j), I certify that I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or pleadings filed in the Court of Criminal Appeals.

/s/ Nicole DeBorde

Nicole DeBorde

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Petitioner/Relator’s Petition for Declaratory Judgment, or in the Alternative Writ of Mandamus has been served pursuant to Texas Rule of Appellate Procedure 9.5 on on Sian Schilhab, General Counsel of the Court of Criminal Appeals via an email to Sian.Schilhab@txcourts.gov.

/s/ Nicole DeBorde

Nicole DeBorde

23

CERTIFICATE OF COMPLIANCE

This is to certify that the Petition for Declaratory Judgment, or in the Alternative, Writ of Mandamus is 3496 words in accordance with Texas Rule of Appellate Procedure 9.4(i)(2)(D).

The following attorneys declare:

I have read this motion and join in its filing.

George McCall “Mac” Secrest Bennett & Secrest, PLLC State Bar Number 17973900

808 Travis Street, Suite 2400

Houston, Texas 77002

713-757-0679

713-650-1602 fax Email: gmsecrest@aol.com

/s/ Nicole DeBorde

Nicole DeBorde

KENT A. SCHAFFER TBA No. 17724300 JPMorganChase Building

712

Houston, Texas 77002 Telephone: (713) 228-8500 Facsimile: (713) 228-0034 Email: kentschaffer@gmail.com Past President TCDLA

Main Street, Suite 2400

Past President TCDLA Main Street, Suite 2400 Dick Deguerin DeGUERIN, DICKSON, HENNESSY & WARD State
Past President TCDLA Main Street, Suite 2400 Dick Deguerin DeGUERIN, DICKSON, HENNESSY & WARD State

Dick Deguerin DeGUERIN, DICKSON, HENNESSY & WARD State Bar No. 05638000 1018 Preston, 7 th Floor Houston, Texas 77002 (713) 223-5959 Telephone (713) 223-9231 Facsimile Email: ddeguerin@aol.com

24

DeGUERIN, DICKSON, HENNESSY & WARD/s/Matt Hennessy Matt Hennessy matt@deguerin.com State Bar No. 00787677 1018 Preston, 7 t h Floor

/s/Matt Hennessy Matt Hennessy matt@deguerin.com

State Bar No. 00787677

1018 Preston, 7 th Floor

Houston, Texas 77002 (713) 223-5959 Telephone (713) 223-9231 Facsimile

77002 (713) 223-5959 Telephone (713) 223-9231 Facsimile Kevin Dubose State Bar No. 06150500 1844 Harvard Street

Kevin Dubose State Bar No. 06150500

1844 Harvard Street

Houston, Texas 77008

Marcy Hogan Greer

State Bar No. 08417650

515 Congress Ave., Suite 2350

Austin, Texas 78701

TRICHTER & MURPHY, P.C. By:

DOUG MURPHY SBN 24013215 The Kirby Mansion 2000 Smith Street Houston, Texas 77002 Tel: (713) 524-1010

Lydia Clay Jackson Law Office of L. Clay-Jackson, PLLC State Bar Number 04332450

504 W. Lewis

Conroe, Texas 77301 Past President TCDLA

/S/ Edward A. Mallett EDWARD A. MALLETT Mallett | Saper | Berg, L.L.P. SBN: 12863000

4306 Yoakum Blvd., Suite 400

Houston, Texas 77006 Tel: (713) 236-1900 Fax: (713) 228-0321

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712 Main Street, Suite 2400 Houston, Texas 77002 Telephone: (713) 228-8500

Facsimile:

Email: David@BSDLawFirm.com Past TCDLA President

(713) 228-0034

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1212 Durham Drive

Houston, Texas 77007 (713) 581-3399 (713) 581-3360 (Facsimile)

Randy Schaffer

State Bar No. 17724500

1301 McKinney, Suite 3100

Houston, Texas 77010 (713) 951-9555 (713) 951-9854 (facsimile) noguilt@swbell.net

Carmen Roe SBN: 24048773

440 Louisiana, Suite 900

Houston, Texas 77002 President of Harris County Criminal Lawyers Association (HCCLA)

of Harris County Criminal Lawyers Association (HCCLA) Chip B. Lewis State Bar Number 00791107 1207 S.

Chip B. Lewis State Bar Number 00791107

1207 S. Shepherd

chipblewis@aol.com

Alicia Devoy ONeill

State Bar Number 24040801

1207 S. Shepherd

713-523-7887 Fax www.chiplewislaw.com alicia@chiplewislaw.com

DON DAVIDSON
DON DAVIDSON

State Bar Number Attorney-at-Law

803 Forest Ridge Drive, Suite 203

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1409 NORTH ELM STREET

DENTON, TEXAS 76201 TEL: (940) 323-9305 FAX: (940) 312-6830 EMAIL: sarah@sarahroland.com

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State Bar No. 10595800

4324 N. Beltline Road, Suite C111

Irving, Texas 75038-3594

972-570-7733

972-570-9094 fax jmj@jayneslaw.com

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TIM EVANS

SBN 06724000

115 W. 2nd St., Suite 202

Fort Worth, TX 76102 (817)332-3822 Phone

(817)332-2763 Fax

LAW OFFICE OF STAN SCHWIEGER

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600 Austin Avenue, Suite 12

P.O. Box 975 Waco, Texas 76703‒0975 (254) 752‒5678 (254) 752‒7792—Facsimile E‒mail: wacocrimatty@yahoo.com State Bar No. 17880500

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Sweeney, Coombs & Fredericks Bldg.

1004 Congress St., 3rd Floor

Houston, Texas 77002 Tel: 713-229-9292

Fax: 713-229-9931

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Sweeney, Coombs & Fredericks Bldg.

1004 Congress St., 3rd Floor

Houston, Texas 77002

Tel: 713-229-9292 Fax: 713-229-9931

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State Bar Number 24070101

2817 W T.C. Jester

Houston Texas 77018 (713) 301-3153 (work) (713) 685-5020 (FAX) jonathan.landers@gmail.com

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SB 24037439

1301 McKinney, Suite 3100

Houston, Texas 77010 (713) 951-9555 (713) 951-9854 (fax) josh@joshschafferlaw.com www.schafferfirm.com

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Law Office of Randall L Kallinen PLLC

511 Broadway Street

Houston, Texas 77012 Telephone: 713/320-3785 FAX: 713/893-6737 E-mail: AttorneyKallinen@aol.com

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254-580-9282

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375 East Chicago Avenue

Chicago, IL 60611

312.503.0135

voice

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facsimile

31

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712 Main St., Suite 2400

Houston, Texas 77002 (713) 228-8500 (713) 228-0034 (Fax)

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723 Main St. #1020

Houston, Texas 77002

Phone 713.256.1993 Fax 713.456.2322

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University of Texas Law School

727 East Dean Keeton Street

Austin, Texas

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78705

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State Bar Number 24037661

1714 Sunset Blvd.

Houston, Texas 77005

713.228.2611Office

888.307.1772Fax

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State Bar No. 03344700

501 Gale Street

Houston, TX 77009

713-301-0381

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Law Office of Sharon Curtis, LLC

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JPMorganChase Bank Building

712 Main Street, Suite 2400

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Law Office of Sandra J. Oballe

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NICOLAS HUGHES

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440 Louisiana, Suite 800

Houston, Texas 77002

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712

Houston, Texas 77002 Telephone: (713) 228-8500 Facsimile: (713) 228-0034 Email: JamesKennedy@BSDLawFirm.com

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36

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210-226-1463

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1103 Nueces Street

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Fax

(915) 532-4549

40

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fax 677-3107 cell 725-8882 mstrb@aol.com

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713.224.5529

office

713.224.5533

fax

s/

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Houston, Texas 77002

713-228-6050

Fax 713-224-1214

/s/ Nancy Byrd Bunin sbot 03561500 Habern, O'Neil & Associates P.O. Box 8930 Huntsville, Tx 77340

(936)435-1380

(936)435-1089 fax Nbunin@paroletexas.com

Vik Vij State Bar Number 24063855 The Law Office of Vikram Vij, PLLC 832-762-1409 Office 281-371-6533 Fax 713-452-0255 Cell

Vivian R King

00784399

2202 Alabama St

Houston, TX. 77004 (713) 222-2019 Office

(877) 753-6706 eFax

/s/ *THEODORE S. HARGROVE, III* Attorney at Law TCDLA District 2 Director San Angelo

/S/ Hiram McBeth Hiram McBeth TBN: 13329500

6060 North Central Expressway, Set 560

Dallas, Texas 75206

Samuel E. Bassett

Minton, Burton, Bassett & Collins, P.C.

1100 Guadalupe

Austin, Texas 78701 (512) 472-0144 sbassett@mbfc.com SBN 01894100

Frank Sellers Texas Bar No. 24080305 Hurley, Guinn & Sellers

1805 13th Street

Lubbock, Texas 79401

806.771.0700

tel

806.763.8199

fax

SCHEINER LAW GROUP, P.C.

By: /s/ GRANT M. SCHEINER

2211 Norfolk St., Suite 735

Houston, Texas 77098-4062 Tel: 713-783-8998 Fax: 1-866-798-9854 TBN: 00784913

_/s/

STEPHANIE K. PATTEN

2101 Moneda St.

Ft. Worth, TX 76117

Fax 817.338.9525 State Bar No. 00784728

David Hurley Hurley, Guinn & Sellers State Bar Number 10310200.

1805 13th Street

Lubbock, Texas 79401

(806)771.0700

(806) 763.8199 fax

s/Ronald L. Goranson RONALD L. GORANSON

2828 Routh Street, Suite 675

Dallas, Texas 75201 (214) 651.1122 / (214) 871-0420 (fax)

State Bar No. 08195000

Scott Markowitz SBOT# 00784527

5610 Southwest Fwy, Ste 104

Houston, TX 77057 713-521-7568 – telephone

713-521-0223 – fax www.highwaylawyers.com

Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028

Tel.:

(830) 257-5005

Fax:

(830) 896-1563

By:

/s/ Clay B. Steadman

Clay B. Steadman State Bar No.: 0785038 Email: jesksted@ktc.com

Jeremy Rosenthal, Esq. Certified in Criminal Law by the Texas Board of Legal Specialization State Bar No. is 24029807 Rosenthal & Wadas, PLLC

4500 Eldorado Parkway, Suite 3000

McKinney, TX 75070 (972) 369-0577 (972) 369-0532 (fax)

44

The Sharkey Law Office

Christopher Sharkey

Christopher Sharkey SBOT: 18114150 7807 Long Point Road Suite 435 Houston, Texas 77055 (713) 683-1007 (713) 683-1067 sharkeylaw@sbcglobal.net

/s/ John P. Denholm

JOHN P. DENHOLM State Bar No. 24063596

SDTX Admission No. 933213

397 N. Sam Houston Pkwy E., Suite 325

Tel: 832-448-1148 Fax: 832-448-1147 john@musicklawoffice.com

/s/ JoAnne Musick

JoAnne Musick Attorney for Defendant Texas State Bar No. 24000371 Federal Admission No. 36104

397 N Sam Houston Pkwy E, Suite 325

Houston, Texas 77060 Phone 832-448-1148 Fax 832-448-1147

Matthew J. Kita Texas Bar No. 24050883 P.O. Box 5119 Dallas, Texas 75208 214.699.1863 (phone) / 214.347.7221 (fax) matt@mattkita.com

Danny Easterling

Past President of Harris County Criminal Lawyers Association Bar # 06362100

1018 Preston Sixth Floor

Houston, Texas 77002

713-228-4441

Fax 713-228-4072 eaepc@swbell.net

Justin C. Harris

24078634

1229 Heights Blvd

Houston, Texas 77008

713-224-5529

713-224-5533 fax Justin@TylerFlood.com

Chris Raesz, P.C.

306 North Carroll Blvd Denton TX 76201

940-380-9505

940-382-2065 fax

Linda Icenhauer-Ramirez SBN# 10382944 Attorney at Law

1103 Nueces

Austin, Texas 78701

512-477-7991

512-477-3580

Robert Pelton

bar 15733500

4001 north shepherd, suite 110

Houston ,Texas 77018 713 524 8471

46

Carole J. Powell Carole J. Powell

Deputy Public Defender

6400 Delta - Juvenile Probation Department

El Paso, TX 79905 Phone 915-849-2014 Fax 915-849-2537

Wes Ball Board Certified Criminal Law Specialist Ball & Hase, P.C., Attorneys at Law

4025 Woodland Park Blvd., Suite 100

Arlington, Texas 76013 Tel.: (817) 860-5000 Fax: (817) 860-6645 Email: wes@ballhase.com

Wayne A. Fowler

24069044

9500 Ray White Rd, Ste 200

Keller, TX 76244 (817) 609-4050 (817) 350-6346 waynefowlerlaw@gmail.com

MARIA I. HERNANDEZ SBN 24000321

2110 East Yandell Drive

El Paso, Texas 79903 Ph. (915) 838-0338 Facsimile (915) 808-6869

Roberto Balli Board Certified in Criminal Lawby Texas Board of Legal Specialization Balli Law Office P.O. Box 1058 Laredo, TX 78042 Tel (956) 712-4999 Fax (956) 724-5830

47

/s/ Vic Sasso Bar# 17653200

Turley Law Center

6440 North Central Expressway

Suite 309 Dallas, Texas 75206

Phone (214) 265-5547

Fax

(214) 919-7248

George E. Renneberg Bar# 16778600

417 Nugent Street, Conroe, TX 77301

Phone 936-756-8181 Fax 936-756-8112 Email lawhall@consolidated.net

Rick Oliver TBN: 24048179

1221 Studewood Street

Houston, TX 77008 Phone: (713) 864-3700 Fax: (713) 864-3703 Email: rickoliverlaw@gmail.com

Don Flanary

Goldstein Goldstein and Hilley

310 South St. Mary's Street, Suite 2900

San Antonio, Texas 78205 Texas Bar No. 24045877

210-226-1463

210-789-3181 cell 210-226-8367 fax

Joseph Hoelscher, II SBN 24042972

The Hoelscher Law Office

115 E. Travis, Suite 1500

San Antonio, TX 78205

210-222-9132

210-223-7455 (Fax) Joe@HoelscherLawOffice.com

Paul Holt Walcutt SBN 24049855

600 W. 13th Street

Austin, Texas 78701 (512) 322-9756 Phone (512) 451-5882 Fax paul@idefendaustin.com

Christopher L King TXBN 24088864

100 N 6th St, Suite 902

Waco, TX 76701 (2540 717-8600 (2540 754-4824 CallahanKingLaw@gmail.com

Drew Willey Bar#: 24093371 1215 Marconi St., Unit C, Houston, TX 77019 Phone: 713-739-9455 Fax: 713-510-1950 Email: drew@Law-DW.com

Bob Mabry Attorney at Law PLLC

304 North Main Street #6

Conroe Texas 77301-3002 (936) 228-7796 Fax 1-866-394-3113 mabry.bob@gmail.com Texas Bar Association 12750980

Mark R. Thiessen Attorney At Law

Bar Number 24042025

1221 Studewood Street

Houston, Texas 77008 Office: 713-864-9000 Fax: 713-964-9006 Email: mark@thetexastrialattorney.com www.thetexastrialattorney.com

James Huggler State Bar 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702

903-593-2400

903-593-3830 fax jhugglerlaw@sbcglobal.net

Daniel L. McBride Bar# 13331600

6636 Spoonwood Lane

Fort Worth, TX 76137

Phone 817-917-8847

Kurt Hopke

Bar# 24039931

8303 Southwest Fwy, Ste 545

Phone 832-457-8702 Fax 832-413-5785 email kurthopke@gmail.com

Robert Blankenship SBN 00792961

LAW OFFICE OF J. PAUL NELSON

P. O. Box 934

207 N. Main St.

Henderson, TX 75653 Tel. (903) 657-1424 Fax. (903) 657-6220

By:

J. Paul Nelson Texas Bar No. 14899250 Email: nelsonlaw@suddenlinkmail.com

/S/ J. Paul Nelson

Dan Cogdell

SBOT 04501500

402 Main, 4th Floor

Houston, Tx. 77002

713

426 2244 (Main)

713

426 2255 (Fax)

Don L Wilson

State Bar number 21677500

334 Chestnut

Abilene, Texas 79602

325-673-8124

325-673-9368 (fax)

Jed Silverman Law Offices of Jed Silverman 1221 Studewood Houston ,Texas 77008

713 226 8800

fax 713 222 7424 WWW.JEDSILVERMAN.COM sb 24013511

Virginia Marie Raymond

16617300

1006 East César Chávez Street

Austin, Texas 78702

Office phone:

512.472.6270

Cello phone:

512.748.0940

Fax: 512.472.8263 virginiaraymond@austin.rr.com Raúl A. Cáñez

Texas Bar Number 00794999 Law Office of Raúl A. Cáñez

301 College Avenue

Fort Worth, Texas 76104 Phone: 817-886-0651 Fax: 817-886-0689 Email: Raul.Canez@CanezLaw.com

Virginia Carter Attorney At Law

300 Burnett, Ste 130

Fort Worth, Texas 76102

817-877-5151

Catherine Clare Bernhard Bar No. 02216575 P.O. Box 2817 Red Oak, Texas 75154

972-617-5548

fax-972-671-5547

Cynthia Henley

Bar#

17409100

7626

E. Jordan Cove, Houston, TX 77055

Phone 713-222-1220 Fax none Email: cynthiahenley@yahoo.com

David Patrick Callahan Bar# 24037999

2216 Walter Smith Court, Azle, Texas 76020

Phone: (817) 905-5322

Fax:

(817) 237-5532

R. Walton Weaver

State Bar Number 00785198 Board Certified Criminal Law Board Certified Criminal Appellate Law HERRMANN & WEAVER Attorneys at Law 320 S. Polk, Ste. 902 Amarillo, TX 79101

806-372-9258

806-372-8444

F. Clinton Broden

Bar# 24001495

2600 State Street, Dallas, Texas 75204

Phone 214-720-9552 Fax 214-720-9594

Jeffrey Hill State Bar No. 24075602 PO Box 763 Bushland, TX 79012 tel: 806-437-1302 fax: 806-437-1307

Alex G. Azzo

Bar# :

P.O. Box 801231, Houston, TX 77280

Phone:

01475500

(713) 822-6915

Mario Del Prado

222 E. Main Plaza

05653600

San Antonio, Texas 78205 (210) 698-3533 Telephone (210) 698-3701 Fax www.delpradolaw.com mario@delpradolaw.com Board Certified - Criminal Law Texas Board of Legal Specialization Board Certified Criminal Trial - National Board of Trial Advocacy

Bud John "Bud" Ritenour Attorney at Law State Bar Number 00794533 Board Certified - Criminal Law

Texas Board of Legal Specialization The Ritenour Law Firm, PC

115 E. Travis St., Suite 1716

San Antonio, Texas 78205

Bobby D. Mims

Bar# 12172200

216 W. Erwin Street, Suite 300A

Tyler, Texas 75702

903-595-2160

Fax 903-596-0719 email bobbymims@gmail.com

Mary Heafner Bar No. 09325500 5110 Mimosa Bellaire, Texas 77401 (713) 269 0467

Patti Sedita Attorney at Law

One Sugar Creek Center Blvd, Suite 1045 Sugar Land, TX 77478 Pfsedita@gmail.com

(O)

281.313.4225

(F)

866.827.2087

SBOT # 00787484 Board Certified- Texas Board of Legal Specialization Criminal Trial Law

/S/ Bob Garcia Jr Attorney at Law SBN 07645200

413 N Texas Ave

Odessa, Texas 79761 Tel: 432-332-6756 Fax: 432-332-6759 BGarciaLaw@ aol.com

Dustin R. Galmor Galmor, Stovall & Gilthorpe SBOT: 24057525

485 Milam Street

Beaumont, Texas 77701

409-832-7757

888-248-9161 fax

Susan Schoon

Bar# 24046803

200 N. Seguin Avenue

New Braunfels, TX 78130 Phone 830-627-0044 Fax 830-620-5657 Email sschoon@zslawoffice.com

John Grant Jones Bar# 10917000

208 Pipe Creek Lane

55

Georgetown, Texas 78633 Phone: 361-815-2470 Fax: 1-866-243-9810 email: grant800@att.net

MORGAN A. BOURQUE SBN 24062627 24 Waterway Avenue, Suite 660 The Woodlands, Texas 77380 Telephone: (713) 862-7766 Facsimile: (832) 813-0321 Email: morgan@morganbourque.com

T. Brent Mayr SBN 24037052

4101 Washington Ave, 2nd Floor

Houston, TX 77007

713-808-9613

713-808-9991 fax bmayr@bmayrlaw.com

Anthony S. Haughton, Esq., Haughton & Associates

3013 Fountain View, Suite 145

Houston, TX 77057 (713) 782-6060 (713) 953-7482 Ashaughton@aol.com

Ralph Dowden

24040828

1108 North Locust Street

Denton, Texas 76201 (214) 436-5194

/s/ Thomas H. Burton, III

Thomas H. Burton, III

Attorney at Law

SBOT No. 24009927

723 Main Street, Suite 905

Houston, Texas 77002

Cell (713) 933-5323 Tel. (713) 741-9301 Fax (713) 741-9302

David Suhler

Attorney at Law State Bar Number 19465900 P. O. Box 540744 Houston TX 77254-0744 (713) 983-8818

/s/ Heather E. Hoblit Heather E. Hoblit The Hoblit Law Firm SBN: 24069930

318 N. Main St.

Conroe, Texas 77301 (936) 828-1118 (936)-205-1417 (fax) h.e.hoblit@hoblitlaw.com

Mackenzie "Mack" Schaffer Attorney at Law State Bar No. 24093111 1301 McKinney St., Suite 3100 Houston, Texas 77010 p: (713) 951-9555 f: (713) 951-9854

William Savoie SBOT 24054558 One Financial Plaza 450

Huntsville Texas 77340

p 9364351380

f 9364351089

Jose R. Villanueva Law Office of José R. Villanueva Bar Number 00794794 PO Box 570 Waco, Texas 76703 (254) 230-2710

(866)821-1162

CANDELARIO ELIZONDO Bar # 06521500

1018 Preston #200 Houston , Texas 77002.

/s/ Joseph A. Connors III

Joseph A. Connors III Attorney At Law Texas Bar No. 04705400 P. O. Box 5838

McAllen, Texas 78502-5838

956-687-8218office

956-687-8230fax

Betty Blackwell

Bar Card #12779300

1306 Nueces Street

# 06521500

Austin, Texas 78701

512-479-0149

512-320-8743

Email: bettyblackwell@bettyblackwell.com

58

Steven Denny

SBN:24005798

2414 Line Ave, Amarillo, TX 79106

806-379-2010

806-379-2012

William E. Harrison State Bar #00789780 Harrison & Dietrich, PLLC

215 Simonton

Conroe, Texas 77301 (936) 828-3898 (Telephone)

(936) 828-3965 (Facsimile) conroeattorney@yahoo.com

/s/ Frank Chelly

FRANK D. CHELLY State Bar Number: 24071257 The Law Office of Frank Chelly, PLLC

308 N. Main

Conroe, Texas 77301

936-701-1150

936-647-2592 (Fax) Frank@chellylaw.com

JAMES EDD WOOLDRIDGE SB# 24010492 Attorney & Counselor at Law Chase Tower

600 S. Tyler Street

Suite 1704 LB 12051 Amarillo, Texas 79101 Tel. (806) 418 8575 Fax (806) 418 8576

Barney Sawyer SBN 17693200 40 N.E. 8th Street Paris, Texas 75460 Ph. 903-784-0816 Fax 903-784-0834 Email: bpsawyer@classicnet.net

Dustin E. Nimz Attorney at Law

900 8th Street Suite 1030

Wichita Falls, TX 76301 tel: (940) 766-5335 fax: (940) 322-1001

Gus A. Saper Attorney

Mallett Saper & Berg L.L.P. Campanile South

4306 Yoakum Blvd., Suite 400

Houston, Texas 77006 Tel: (713) 236-1900

Fax: (713) 228-0321 State Bar No. 17646500

Lealand W. [Pete] Greene Texas Bar No. 08394000 Attorney at Law P. O. Box 125 Snyder, TX 79550-0125

325

573.3451

325

573.1445, facsimile

M.

Fox Curl

M.

Fox Curl & Associates, P.C.

1810 Decatur St.

State Bar Number 24045737 Houston, Texas 77007

Phone: (832) 567-0846 Fax: (713) 863-9377 Email: foxcurl@yahoo.com www.foxcurl.com

Stewart S. Davis

Tex. Bar No. 24049644

236 Junction Hwy

Kerrville, Texas 78028 Tel. (830) 257-8851

Fax (830) 896-8730

C.J. McELROY Bar# : 13581995

301 S. POLK ST. SUITE 660/ AMARILLO, TEXAS 79101

Phone: 806-371-0555

DANIEL LAZARINE

The Law Office of Daniel Lazarine SBN 24073197

Robert F. Alexander Texas State Bar Number 00997800

713-863-1072

MELVYN CARSON BRUDER

Attorney & Counselor at Law

516 Turley Law Center

6440 N. Central Expressway

Dallas, TX 75206

214.987.3500

214.987.3518 FAX melvyn@melvynbruderlaw.com

61

Anne K. Ritchie Attorney at Law

/s/ Susan Criss SBOT 06630475

719 59th St.

Galveston, TX 77551

409 771 4069

Vaavia Edwards

SBN 00796508

301 S. Polk, Suite 620

Amarillo, Texas 79101 Tel: (806)371-9333 Fax: (806)371-9335 email vaavia@vaaviaedwards.com

Robert W. Doggett

Texas Bar No. 05945650

4920 North IH-35

Austin, Texas 78751 Tel. 512-374-2700

Fax 512-447-3940 rdoggett@trla.org

Robert Blankenship SBN 00792961

5128 Birchman Ave.

Fort Worth TX 76107

817.332.2202

Fort Worth TX 76107 817.332.2202 Robert@davidwynnelaw.com KEITH WOODLEY State Bar No. 21936500 WOODLEY & DUDLEY P.

KEITH WOODLEY State Bar No. 21936500 WOODLEY & DUDLEY P. O. Box 99, 306 N. Austin Comanche, Texas 76442-0099 325/356/2502 – Phone 325/356-5193 Fax

John A. Sickel SBN: 18339500 PO Box 5003 Mabank, Texas 75147

J. Eric Reed

00794512

4131 N. Central Expy, Ste 680

Dallas, TX 75204 Jereedlaw@aol.com

Susan N. Kelly Law Offices of Susan N. Kelly State Bar # 14862020 510 N. Valley Mills Dr., Ste. 406, Waco, TX 76710

254-751-1818

254-751-9192 (fax)

63

Jimmie P. Price Bar# 16287700

101 Simonton

Conroe, Texas 77301 Telphone 936-756-5511 Fax 936-441-5745 Email :jpprice@priceandprice-law.com

Dennis R. Corman Bar# 05102000

420 West Second Street

Irving, Texas 75060 Phone 972-2512333 Fax 972-254-4315 email cromanlaw@aol.com

Lynda Smith

Texas Bar Number 18632070

3611 Soncy Rd., Ste 4C

Amarillo, Texas 79119

806.372.4720

Dianna L. McCoy

SBN

24026865

112 S.W. 8th, Ste. 540, Amarillo, TX 79101

806-373-4025

806-350-5414

David L. McClard TBN: 24076542

1810 Decatur Street

832-289-1825

713-863-9377

Jamie Balagia

Bar# 00783589

313 south main ave

san antonio, tx 78204 Phone 210-394-3833 Fax 210-271-3833 Email jamie@dwidude.com

Wm. S. Harris William S. Harris

Attorney and Counselor at Law SBN 09096700

307 West 7th Street, Suite 1905

Fort Worth, Texas 76102 (817)332-5575; (817)335-6060 FAX wmsharris.law@sbcglobal.net Board Certified in Criminal Law By the Texas Board of Legal Specialization

Rober K. Loper TBN 12562300

111 W. 15th St.

Houston, Texas 77008 (713) 880-9000 Bob@Loperlaw.net Past HCCLA Board member

Joe Marr Wilson Board Certified Attorney - Family and Criminal Law Texas Board of Legal Specialization LAW OFFICE OF JOE MARR WILSON

905 South Fillmore, Suite 550

Amarillo, Texas 79101 Tel: (806) 374-7758 Fax: (806) 374-0315 jmw@joemarrwilson.com

Charles L. Kessie SBN 11358050

209

Main Street, Canadian, Texas 79014

806

323 6542 (V) 6413(F)

Paul SchifferLaw Office of Paul Schiffer 2211 Norfolk St., Suite 610 Houston, Texas 77098 (713) 521-0059 paul@schifferlawfirm.com www.schifferlawfirm.com

Clay S. Conrad LOONEY & CONRAD, P.C.

State Bar Number 00795301

11767 Katy Freeway, Ste. 740

Houston, TX 77079 Tel: 281-597-8818 Fax: 281-597-8284

Paul Looney LOONEY & CONRAD, P.C.

State Bar Number 12555900

11767 Katy Freeway, Ste. 740

Houston, TX 77079 Tel: 281-597-8818 Fax: 281-597-8284

66

Shannon FitzPatrick

Bar# 00790690 P.O. Box 832, San Marcos, TX 78667 Phone: 512-245-2370 Fax: 512-245-9053

Mark D. Griffith State Bar# 00785928

108 West Main Street

Waxahachie, Texas 75165 Phone 972-938-8343 Fax 972-938-8333 email mark@griffithlegal.com

CELSO VIDAURRI SBN: 00794791

623 a West Division Street

Arlington, Texas 76011 (817) 801-4444/FAX (817) 801-3400

CelsoV3@aol.com

/s/Chris Abel Chris Abel Attorney At Law 2609 Sagebrush Dr. Suite 202 Flower Mound, Tx. 75028

972-584-7837

Fax: 972-947-3813

Anton E. Hackebeil Bar No. 08667150 P.O. Box 220

Hondo, Texas 78861 830-741-7001- office 866-743-4537 – fax

Robert Hirschhorn

Bar # 09719700

217 S. Stemmons, Suite 203

Lewisville, Teas 75067 Phone: 972-434-5879 Fax: 979-434-0176

Lanhom Odom

Attorney At Law SBN: 15202700

103 N. Mason Street

Bowie, Texas 76230 Telephone: 940-872-7095 Facsimile; 940-872-8095

Shannon Brady Geihsler

Law Office of Shannon Brady Geihsler, PLLC 1001 Main St., Suite 803 Lubbock, Texas 79401 Office: (806) 763-3999 Mobile: (806) 781-9296 Fax: (806) 749-3752 E-Mail: sbg@sbgaal.com

Stephen H. Miller Attorney at Law

704 E. 15th Street, Suite 203

Plano, TX 75074 (972) 578-7097 office; (972) 578-9677 fax Email: stevemlr@flash.net Website: www.bestdefensetx.com AV rated -- Martindale Hubbell Peer Review Ratings

68

Steven Rosen

SBN: 17266200

214 Morton Street

Richmond Texas

713 227 2900

Susan E. Barclay SBOT# 24045449 Barclay Law Firm, PLLC

921 Ayers Street

Corpus Christi, Texas 78404 Tel: 361.826.0678 Fax: 361.826.0679

Adam Battle Whiteside Bar# 24086103

430 Buckingham Rd., Apt. 536, Richardson, TX 75081

Phone: 214 991 6083 Email: Adam_whiteside@fd.org

Semper Fi, Patrick McLain Texas Bar No. 13737480 McKinney Place 3131 McKinney Avenue, Suite 825 Dallas, Texas 75204-7426 phone: 214.416.9100 fax: 214.416.9107 e-mail: