in Re the State of Texas Ex Rel. Abelino Reyna, Relator v. Court of Appeals for the Tenth District
WR-83,719-01
Tex. App.Sep 16, 2015Background
- Amicus (Texas Criminal Defense Lawyers Association) filed a brief in In re State ex rel. Abelino Reyna challenging a trial-court gag order that restrained party and counsel speech during a pending criminal matter.
- The gag order was adopted verbatim from the Houston Chronicle order used in the Andrea Yates prosecution; defense counsel here had no opportunity to narrow or negotiate its terms.
- The trial court justified the order by predicting pretrial publicity would impair the defendant’s right to a fair trial and that delay would not reduce the publicity, and asserted a "specific threat" without identifying or introducing supporting evidence.
- The Tenth Court of Appeals conditionally granted mandamus relief vacating the gag order; the Court of Criminal Appeals requested briefing on whether Davenport v. Garcia applies to criminal-case gag orders, the sufficiency of the trial-court findings, and whether the appellate conditional grant was supported by law/facts.
- Amicus argues Davenport’s prior-restraint standard (presumption of unconstitutionality; specific findings supported by evidence; least-restrictive-means) should apply in criminal cases because it aligns with Sixth Amendment interests and this Court’s precedent, and that the gag order here fails that test.
Issues
| Issue | Relator's Argument | Respondent/Amicus Argument | Held (Amicus position / Court of Appeals action) |
|---|---|---|---|
| Whether Davenport v. Garcia governs judicial gag orders in criminal cases | Davenport is a civil-case standard and should not control criminal gag-order review | Davenport applies; its presumption and requirements fit and protect Sixth Amendment interests | Amicus: Davenport should apply; Tenth Ct. conditionally vacated the order |
| Whether the trial court made sufficiently specific, evidence-supported findings to justify prior restraint | Trial court made findings predicting prejudice and claimed a specific threat | Findings are conclusory, unsupported by record, and fail Davenport’s "specific findings supported by evidence" requirement | Amicus: findings insufficient; appellate vacation justified |
| Whether the gag order used the least-restrictive means to protect trial fairness | Order was necessary to protect impartial jury and proceedings | Order is not narrowly tailored, was wholesale and one-sided in effect, and deprived defense counsel of needed speech to rebut prosecution publicity | Amicus: order not least-restrictive; vacatur appropriate |
| Whether the Tenth Court of Appeals’ conditional writ was legally and factually warranted | Relator sought mandamus to sustain gag order | Amicus contends the conditional grant was supported because order was presumptively unconstitutional, unsupported by evidence, and inadequately tailored | Amicus supports the Tenth Ct.; urges this Court to deny mandamus and let vacatur stand |
Key Cases Cited
- Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (establishes presumption against prior restraints; requires specific findings supported by evidence and least-restrictive means)
- In re Houston Chronicle Publ. Co., 64 S.W.3d 103 (Tex. App.—Houston [14th] 2001) (source of model gag order used in the Andrea Yates case)
- Ex parte Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007) (criticized overly broad gag orders; press and investigation aided eventual exoneration)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (courts must consider available alternatives and use least-restrictive means when limiting speech)
- Gentile v. State Bar of Nev., 501 U.S. 1030 (U.S. 1991) (discusses defense counsel’s First Amendment interests and professional duties in extrajudicial statements)