NO. 416-81913-2015
NO. 416-82148-2015
NO. 416-82149-2015

THE STATE OF TEXAS
V.
WARREN KENNETH PAXTON, JR.

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IN THE DISTRICT COURT
416th JUDICIAL DISTRICT
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

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
1

1

 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

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
2

2

 II. JUDGE OLDNER’S IMPROPER IMPANELMENT
TH
OF THE 416 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 416 th 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 1113, 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. 19.2119.22. 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?

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
3

3

 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 extrastatutory 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
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
4

4

 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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
5

Id. at pp. 43-44.

5

 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
1

All 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.
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
6

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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).
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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7

 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 416 th 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).”
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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8

 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.
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
9

9

 “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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
10

10

 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.
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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11

 . . . .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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
12

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).
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
13

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 3 rd 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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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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”

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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15

 (Exh. “J”)6. Curiously, at the end of that same day, Cissy Oldner began texting Ms.
Fletcher about the Paxton matter:
Date Time

7/2

Oldner
Well I actually heard that he
is not running again because
he is somehow involved in
5:53p
Paxton's mess-- speaking of-your friend Paxton has not
had a good week. . .

Yikes. I have no idea, but I
owe Turner a call. . .When I
asked someone [remaining text
cut off]

Not listed

7/2

7/2

This is exactly what we told
7:18p you was going to happen to
Paxton
It's worse though then we
7:18p ever thought. Over 100k.
Ouch
You were right, bad mojo
indeed. I'm personally leary of
[remaining text cut off]

Not Listed
7/2

7/2

7/2

6

Fletcher

7:23p That sounds smart
And don't advise people to
invest, take a 30%
7:25p commission you forget to tell
them about, and then watch
them lose their life savings
7:25p Sorry can't resist

7/2

7:26p

7/2

7:27p

[beginning text cut off] my
agenda. No worries there. And
you know I've never stopped
you from venting. . .
This is really more gloating
than venting

See footnote 3.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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16

 7/2
7/2

7/2

7:27p Which is not nice
7:29p
Who knows. Maybe the
grand jury will no bill. But
they are presenting 2
different cases to 2 grand
7:37p juries and these are just the
charges that are about to run
the statute of limitations,
apparently there are more to
come.

I understand.

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 14 th 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
Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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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:

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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 . . . .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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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 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.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
20

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 Respectfully submitted,
Dan Cogdell
Co-Lead Counsel
Cogdell Law Firm, L.L.C.
402 Main Street
Fourth Floor
Houston, Texas 77002
Telephone: (713) 426-2244
Facsimile: (713) 426-2255

Terri Moore
300 Burnett St., Ste. 160
Fort Worth, TX 76102-2755
Telephone: (817) 877-4700
moore@terrimoorelaw.com

Heather J. Barbieri
Barbieri Law Firm, P.C.
1400 Gables Court
Plano, Texas 75075
Telephone: 972.424.1902
Facsimile: 972.208.2100
hbarbieri@barbierilawfirm.com

HILDER & ASSOCIATES, P.C.

/s/ Philip H. Hilder
Philip H. Hilder
State Bar No. 09620050
Co-Lead Counsel
Stephanie K. McGuire – of Counsel
State Bar No. 11100520
819 Lovett Blvd.
Telephone (713) 655-9111
Facsimile (713) 655-9112
philip@hilderlaw.com

Bill Mateja
Fish & Richardson, P.C.
1717 Main Street, Suite 5000
Dallas, Texas 75201
214-292-4008
mateja@fr.com

ATTORNEYS FOR DEFENDANT,
WARREN KENNETH PAXTON, JR.

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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 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

Motion to Quash Indictments Because Judge Oldner’s Cumulative Actions
Compromised the Integrity of the Indictment Process
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